By Laksiri Fernando –

The sensibility of the resolution passed by the Northern Provincial Council (NPC) requesting “the ongoing United Nations Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL) to investigate the claim of genocide and recommend appropriate investigations and prosecutions by the International Criminal Court” has come to a major focus as it is done barely a month after the presidential elections when the TNA and the NPC opted to support Maithripala Sirisen’s candidacy for the Presidency.

This is also at a time when the UNHRC itself has decided to postpone the submission of the report of the OISL, so far compiled, to the Human Rights Sessions this month. The resolution and the election position give mixed signals to the people in the South or even the North quite detrimental to the hopes for or process of reconciliation.

There is no doubt that the claims made by the Resolution are highly controversial and many would not agree with the ‘claims of genocide’ because the claims are one sided, not substantiated and in my opinion would not stand the objective or legal criteria. However, if that is the way the people in the North think, or made to think, about the whole of the past since 1948, then it is a serious situation.

However, no one can deny the right of the NPC to pass such a resolution or any other, unless they contravene the Constitution or the laws of the country. Such a denial is a gross discrimination and a denial of basic human rights (freedom of expression and equal participation in the affairs of governance) enshrined in various human rights conventions and agreements apart from Sri Lanka’s own republican Constitution. These are extremely complex and complicated issues that a process of reconciliation should address and try to resolve.

The NPC even last year passed a similar resolution however short of calling for an investigation into the ‘claims of genocide.’ While calling for war crime investigations, it used the term ‘ethnic cleansing’ which is according to some experts (i.e. John Quigley) borders on genocide. However, even ethnic cleansing is a crime applicable to both sides of the conflict, the LTTE and the government forces or the government. Only difference might be the scale and intensity of the atrocity. Fortunately for both sides, there is nothing called ‘culpable genocide’ in international law, as far as I am aware, or otherwise both sides cannot easily escape from the charge.

Last year, when there were efforts to include the word or the ‘claim of genocide’ into the resolution, the person who strongly disagreed was the Chief Minister, Wigneswaran. As Meera Sirinivasan reported to “The Hindu” (28 January 2014) “Chief Minister C.V. Wigneswaran, widely regarded as a moderate voice within the TNA, insisted that the term be avoided.” Therefore, it is not clear why he opted to agree this years for a resolution completely based on ‘claims of genocide,’ not only in recent times but going back far back as 1948. Thus the political nature of the resolution is quite clear.

Background

Genocide is not something that anyone should take lightly. Sri Lanka or then Ceylon was one of the first 20 countries that acceded to the UN Genocide Convention in 1950 even before becoming a member of the organization. This does not mean that Sri Lanka fully understood the implications or the commitments therein of the ratification of this convention. This might be or is the case even today.

The term ‘Genocide’ undoubtedly is highly emotional due to some historical reasons. The initial reasons are connected with the gross atrocities committed by Adolf Hitler and Natzi Germany particularly during the Second World War against the Jewish community and other peoples and nationalities. No one would like to associate with such inhuman atrocities whether they commit them or not.

The word or the ‘accusation of genocide’ also has the stigma associated with what happened later in Cambodia under Pol Pot in late 1970s, and former Yugoslavia or Rwanda in early 1990s. In the NPC Resolution, what happened in Sri Lanka are directly equated with those countries much to the consternation of those who are strongly or blindly inclined to defend the Sri Lankan State, whatever the human rights violations.

The term, however, has a very specific legal connotation. There was no such a term or word before 1944 although such atrocities had happened before. Referring to Hitler’s massacres of different peoples, Winston Churchill remarked “we are in the presence of a crime without a name.” So Raphael Lemkin (a Polish lawyer), invented the name. Lemkin himself was an escaped victim of ‘genocide.’ He combined the Greek word genos (a people) with the Latin suffix cida (kill), to create a word similar to the word ‘homicide.’ The Sinhala term used among Sri Lanka’s human rights fraternity, Janasanhara, very fittingly gives the same meaning.

Lemkin also influenced the Genocide Convention and its interpretation of the term. He also wanted to introduce a crime or violation named ‘cultural genocide’ which was not accepted. It was difficult even for a person like John Humphrey who was in charge of its draft to moderate Lemkin’s strong influence. As John Quigley (The Genocide Convention: An International Law Analysis) stated, “The definition as written into the Genocide Convention left many questions unanswered. The sparse language of Article II hid multitude of problems.”

One of the questions left unanswered, in my opinion, was the application of the term or the crime in the context of two or more groups killing each other in an ethnic or religious conflict like in Sri Lanka particularly after 1983.

Definition

As ‘homicide’ means killing of a person, ‘genocide’ means the destruction or killing of a people or group, whether ethnic, religious, racial or national. While that being the general meaning of the term, the UN Convention has given a specific interpretation. Technically speaking, to qualify for a situation of genocide, the whole group does not need to be killed. The killing of a part of a community is sufficient. And not only killing in the physical sense but also the causing of ‘serious bodily or mental harm to members of the group’ can be construed as ‘genocide’ however on one proviso. If that proviso is there, even the infliction of certain restrictive ‘conditions on their life’ can be considered as genocide.

What is that Proviso? That is that the ‘acts committed should be with the (clear) intention of destroying in whole or in part of that group.’ Let me quote Article II of that Convention to clarify this. It reads:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.” (My emphasis).

The Convention also included, ‘forced birth control’ and again forced ‘transfer of children’ from one group to the other, as acts of genocide in point (d) and (e) that could happen and have happened in many countries with or without an intention of genocide proper.

NPC Resolution

It is customary among the ‘genocide advocates’ to focus on the acts enumerated from (a) to (e) in the Convention without usually substantiating the ‘intent to destroy’ of a particular community associated with those acts. When mass killings or massacres occur it is customary for the international community to consider those events at least as bordering on genocide. However, when those killings occur or have occurred on both sides in an intense or protracted conflict between two or more groups, it is better to deal with the violations as ‘war crimes’ or ‘human rights violations’ in my opinion.

It is obvious that the Northern Provincial Council has jumped from ‘war crimes’ to ‘genocide’ claims within the pace of one year, for some reason, strangely in a context where an overwhelming majority of Tamil people on the direction of the TNA had voted to bring a new government that promised for good governance, rule of law and reconciliation. The resolution accuses even the new government in the process of genocide.

If the pressure to do so had come from the people, then they would not have voted for the new president as they have done at the 8th January elections. And if the resolution is the way that the council members interpret the events since 1948 in Sri Lanka then it does not make much sense where there had been cooperation between the two groups, Sinhalese and the Tamils, on many occasions while the gap between the political positions had been generally widening in the past or even one might say since 1948.

Anyone has to admit that there had been many rebellions or insurrections in the country due to socio-economic as well as political reasons after independence and their suppressions have been ruthless, irrespective of ethnicity or any other distinction. That has been the nature of the State, particularly under the conditions of underdeveloped in democratic norms and practices. The issues have always been the suppression of human rights, and human rights might be the best way of approaching the past injustices.

Although the present author does not intend to go into details of what the resolution has stated as incidents of genocide, to avert rubbing salt into gapping wounds, it is suffice to say that some of the interpretations of actions, policies and events as genocide are quite farfetched to say the least. For example, as a preamble to the resolution, it says:

“This Council is of opinion that during the period extending from 1948, when the Citizenship Act was passed to strip citizenship from a segment of the Tamil community and render them stateless, and continuing through the present day, successive Sri Lankan governments have perpetrated genocide against Tamils. Extensive evidence demonstrates that acts have been committed that constitute four of the five enumerated genocidal acts in the Genocide Convention.”

There is no question that the Citizenship Act of 1948 was a gross violation of human rights and particularly the Universal Declaration and its Article 5. However, not only the Act preceded the Declaration but also the intent of the Act was more of class than ethnic (AJ Wilson) depriving the citizenship of mainly the migrant plantation workers from India. That is one reason why the main Tamil party of that time, the Tamil Congress voted for it.

There is no question that the killings recorded in the Resolution, in 1956, 1958, 1977 and particularly 1983 could be called pogroms. Nevertheless by the time of 1983, the LTTE has already emerged with the intention of similar wanton, and one can even argue that on the other side, there was no such an organization involved in the conflict except the State or the armed forces which we know to be perennially involved in atrocities whether in 1971 or 1987-89 or any other. It is best to consider the events between 2002 and 2009 as part of a war where ‘war crimes’ and ‘human rights violations’ should be investigated.

Most questionable might be what is recorded under Section 4 in the Resolution as “Imposing Measures Intended to Prevent Births within the Group.” It begins reporting of the following which I would leave for the readers to make up their own opinion.

“As early as the 1990s, there have been reported incidents of forced sterilization of the Up- Country Tamils. Doctors would promise Rs. 500 to young and poor Tamil plantation workers, who would take a lorry to a makeshift clinic where they were forcibly sterilized via tubal ligation without consent. The government operated this program under the guise of family planning, but its aim was to prevent births amongst Tamils, thus changing the demographics of the Central Province.”

Investigations

The present OISL investigation is a time bound effort covering the period from February 2002 to November 2011. The last government expressed the view, if any investigation to be reasonable it should begin from 1983 with the intention of perhaps implicating the UNP government for 1983 events and India for what happened during their intervention during 1987-1990. Now the NPC wants the UN to investigate genocide going back to 1948. All these moves have been political, without much concern for objectivity, reasonableness or purpose of reconciliation in the country.

One intention of the Resolution appears to be to counter the present government’s efforts to have a domestic investigation under international norms also with the participation or the direction of the UNHRC. Countering that effort, the Resolution says the following.

“This Council notes that President Maithripala Sirisena was acting defense minister in May 2009, during the peak of the government’s attacks against Tamils. This conclusively demonstrates the need for justice and accountability for the Tamil genocide to be driven and carried out by the international community. Tamils have no hope for justice in any domestic Sri Lankan mechanism, whether conducted by the Rajapaksa regime, Sirisena regime, or its successor.”

It is true that some sections don’t have a faith in ‘domestic investigations’ while others are also sceptical about ‘some international efforts.’ I have earlier raised the question as to the circumstances under which this particular Resolution has come about stating that the NPC in 2014 had a different position and the people this January under the direction of the TNA even voted for Maithripala Sirisena.

There are ample evidence in the case of Sri Lanka or elsewhere that opinions on these matters are largely influenced or guided by ‘some international advocates,’ however genuine they may be, whose primary concerns are ‘not reconciliation but punishment’ of not only the particular perpetrators but also countries or other groups, other than those whom they ostensibly support. I have gained this opinion having worked in Geneva from 1984 to 1991 closely involved in the UN Human Rights Commission of that time. One example is the following.

“For the past six decades, the Sinhala-Buddhist Ceylon/Sri Lanka has implemented a systematic and a comprehensive military, political, and economic campaign with the intent to destroy in substantial part the different national, ethnical, racial and religious group constituting the Hindu/Christian Tamils. This Sinhala-Buddhist Ceylon/Sri Lanka campaign has consisted of killing members of the Hindu/Christian Tamils in violation of Genocide Convention Article II (b). This Sinhala/Buddhist Ceylon/Sri Lanka campaign has also deliberately inflicted on the Hindu/Christian Tamils conditions of life calculated to bring about their physical destruction in substantial part in violation of Article II (c) of the Genocide Convention.”

The above quotation is not from an ordinary person but from a professor of international law, Francis Boyle (The Tamil Genocide in Sri Lanka: The Global Failure to Protect Tamil Rights, p. 10). I don’t know how far these type of blanket assessments or pronouncements have influenced the NPC Resolution as international opinion or international law. To be fair to the international experts, I also must add that there are others, who are balanced-minded and concerned about not only punitive aspects but also reconciliation concerns in the affected countries. Perhaps the distinction between the two is based on particular academic disciplines or personal backgrounds.

It is my understanding that the two groups of the Sinhalese and the Tamils, more so of their leaders, or instigated by them, even trampling on the Muslims, have been engaged in a fierce competition even before the independence, and then in an aggressive protracted ethno-political conflict, and the Sinhalese as the numerical majority undoubtedly and grossly trampled on the rights of the Tamils which eventually led to the destructive internecine war for both communities. There were a wanton of killings in the course of this process.

Conclusion for Reconciliation

What might be necessary for reconciliation today and in the future for both and other communities might be to engage with each other in a spirit of ‘truth and justice’ for the past and also for the future and workout mechanisms, norms, policies and measures to take the country out of this terrible situation or mess. Sri Lanka undoubtedly can take a leaf out of South Africa’s book in this endeavour.

In that context, a domestic investigation (a proper truth and reconciliation commission) under the international norms and even with the participation of international experts nominated by the Human Rights High Commissioner might be a possibility. The advantage of such a commission is that both the victims and the perpetrators can confront each other if and only if the circumstances are conducive.

It is so obvious that the Sri Lankan investigators (Tamils, Muslims and Sinhalese) are in a better position to understand the victims, the perpetrators and all the nuances of their circumstances. I say this without any prejudice to the international community and Sri Lanka is obviously a part of the international community.

I frankly don’t think that the accusations or claims of genocide would take the country forward for any solution. What might be possible is to incorporate some of the norms of the Genocide Convention into domestic human rights law and prevent even a semblance of genocide happening in the country in the future. There is much education needed within the armed forces, the police, and the public service, among the people and particularly for the Clergy. As Sri Lanka has acceded to the Genocide Convention, it is appropriate and necessary to include ‘freedom from genocide’ in the fundamental rights chapter in the Constitution.

One advantage of the resolution is that it has brought the subject into discussion. As supposedly a Sinhalese, I might also say that all Sinhalese should need to reflect on whether there has been anything resembling genocide that has happened to the Tamils in the past which could recur even in the future. That should be stopped.