By G K Nathan –
An Appeal to United Nation Human Right Council (UNHRC) Members to Act on Rights of Tamils in Sri Lanka at the 25th session in March 2014
Sri Lanka an Island is presently inhabited by multilingual (Sinhala, Tamil and English) multireligious (Buddhists, Hindus, Muslims and Christians) and multiethnic (Sinhala, Tamil, Arab and European descendents) peoples. Sinhala and Tamil peoples have lived in the Island for a few millennium. Seventy million Tamils, a sea-faring Nation, spread the subcontinent culture in South East Asia and live across the Palk straight, were the first settlers in the island, as seen in the archeological evidence. Sinhala people claim that they are descendents of people of North Indian origin, as per Codrington these are mythological stories related to Buddhism and contrary to genetic facts. The belief that Sri Lanka is a Sinhala Buddhist country is the source of Sinhala-Tamil conflict in the Island and it is the reason for continuing religious conflicts with Hindus, Moslems and Christians. Interest in spice trade, attracted European colonial powers to Sri Lanka; first of them the Portuguese landed on the West shores of the Island in 1505, at that time there were three well established “countries” or Kingdoms in the Island: two of them were Sinhala kingdoms one in the South and the other in the Central Hills (Kandyan); the third one a Tamil Kingdom in the North East; two of the three Kingdoms had Tamil Kings. The Kingdoms in the South and the North came under the control of colonial rulers: first the Portuguese, then the Dutch and finally to the British. The British, last of the colonial rulers conquered the Kandyan Kingdom in 1815 and unified the three Kingdoms as one country for administrative convenience in 1833. The Island became independent in 1948, but only safeguard for the rights of minority groups were instituted with unalterable, section 29(2) of 1946 in the unitary constitution, the UK has some responsibility for the current predicament. After more than six decades of majority rule, the unitary constitution promulgated at the time of Independence is found to be wanting in a multi-ethnic, lingual and religious country like Sri Lanka. The transfer of power in the hands of the Sinhala Buddhist majority community, instead of sharing power as happened prior to colonial era, was the worst that happened to the Island. Last uprising of Tamils against oppression led to a three decades long military conflict which ended in May 2009. The World silently watched war crimes and crimes against humanity that occurred during the final stages of the military conflict; allegedly, by both combatants resulting in the death of large number of Tamils. Members of International community have called for an independent international inquiry, as to what happened in Sri Lanka in breach of International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka became a signatory on 11th June 1980. After acceding to ICCPR, the Government of Sri Lanka (GSL) enacted the Sixth Amendment to the 1978 Constitution of Sri Lanka in August 1983, the article 157A (2) stated that “No political party or other association or organization shall have as one of its aims or objectives the establishment of a separate state within the territories of Sri Lanka” thus denied the democratic rights guaranteed under Articles 26 of ICCPR to the Tamil Nation. The 6th Amendment is in contravention of the following articles of ICCPR:
Article 1-1 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 25 (Electoral Rights) every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and
(c) To have access, on general terms of equality, to public service in his country.
Article 27 Guarantees persons belonging to ethnic, religious or linguistic minorities the right, in community with other members of the group, to enjoy and practice their own culture, religion or language.
This submission represents views of most Tamils in Sri Lanka and Tamil diaspora of about a million in number some were made to abandon their former homeland in Sri Lanka and are living in foreign countries. After Independence in 1948, migration was caused by many contributing factors: disenfranchisement of a section of Tamil population in 1948; planned colonisation of the Tamils’ historical homeland, which started in 1949; reduction in representation of minority groups in the parliament, to less than a third, in 1952 within four years after Independence; denial of language rights of Tamils with implementation of Sinhala only bill of 1956 and repeated pogroms against Tamils as a reaction to their demand for equal rights through peaceful agitations. Two-third majority gained in the parliament was used to promulgate new constitutions in 1972 and 1978, which further consolidated powers in the hands of Sinhala Buddhists at the expense of other minority groups: Hindus, Muslims and Christians. The subjugation of minority groups was completed by removing the safeguard entrenched in section 29(2) of 1946 from the constitution of 1972. Gandhian style non-violent peaceful protest against subjugation led to repeated pogroms against Tamils in 1956, 1958, 1961, 1974, 1977 and 1983, last of the pogrom over 3000 people were killed and large scale destruction of properties of Tamils occurred Island wide. After every pogrom more and more Tamils left the country, seeking refuge in foreign land. Having had repeated failures to find a negotiated resolution to the political differences between Sinhala and Tamil Nations, in 1976 all the Tamil political parties called for “Right to Self –Determination of Tamil Nation” that was approved by 83% of people of Tamil homeland in the 1977 General Election, the call is justified under Articles 1 and 27 of ICCPR. Following the approval by the people of Tamil Nation, the Tamil youth started a military campaign to liberate the Tamil homeland from Sinhala domination, after more than three decades of military campaign, the war came to a sudden halt on 18th May 2009, unfortunately supported by countries which are now clamouring for justice to the Tamil Nation, woken up by atrocities committed by both sides.
International Response and Sri Lanka’s Prevarication
There were serious allegations of war crimes and crimes against humanity against the warring parties in Sri Lanka in the International media and supporting evidence produced by Human Rights Organizations. This led to the United Nation Secretary General (UNSG) visit to Sri Lanka and at the conclusion of his tour on 23 March 2009, a Joint Statement was issued with President of Sri Lanka which “underlined the importance of an accountability process” and the Government of Sri Lanka agreed that it “will take measures to address those grievances”. The UN Panel of Experts on Accountability in Sri Lanka (PoE) was appointed by the UNSG and their report lifted the lid on atrocities that occurred during the conflict, but President Rajapaksa maintains to date that the war was conducted against “terrorists” with “zero casualties”. The PoE found credible allegations, which if proven indicate that a wide range of serious violations of international humanitarian law and international human rights law were committed by both combatants, PoE estimated about 40,000 perished in the final stages of the war. The UN failed operation in Sri Lanka was criticised and the UNSG appointed a UN Internal Review Panel to investigate the UN operation in Sri Lanka, during the conflict and its failure to contain the conflict. The review panel put forward proposals, how to avoid repetition in the future; but also increased the previous estimate of number deaths to 70,000. Both Panels appointed by the UNSG were not allowed by GSL to visit Sri Lanka and make a better assessment. The Social Architects (TSA) a group of academics based inside the country carried out a survey in both the Tamil provinces and came to a conclusion that 118,036 people were killed, from September 2008 to May 2009. The Lesson Learnt and Reconciliation Commission (LLRC), appointed by GSL to investigate the final stages of the conflict, as part of the agreement with UNSG, failed to give a number for the civilians killed. The LLRC maintaining the facade of “zero civilian casualties” put forward by President Rajapaksa casts doubts whether any internal mechanism will succeed bringing the truth to the surface. In the past under President Rajapaksa’s regime a number of Commission of Inquiry has been set up; reports neither published nor implemented. Bishop of Mannar in his submission to LLRC raised the discrepancy between the number of civilians at the beginning of final conflict and the 282,380 people who were incarcerated in prison camps in the North at the end of the conflict; there was a discrepancy of 146,679. The difference between the missing people and dead people given by TSA could be the number of people who could have escaped as refugees to other countries? President Rajapaksa before the final onslaught, ordered all the UN and NGO personnel to vacate the war zone and conducted a war without 24/7 news coverage.
The veracity of this number need to be confirmed, which can only be done by setting-up an Independent International Commission of Inquiry (IICI) which will reveal whether the breach of International human right law and humanitarian law have occurred and the true number of people injured and/or killed . The call for IICI is being pursued by UN High Commissioner for Human Rights, Ms Navi Pillay, David Cameron Prime Minister of the UK who recently announced at the Commonwealth Heads of Government meeting in Sri Lanka and many others have joined the call. The USA has been consistent in their call to implement the LLRC report, since sponsoring the UNHRC resolutions at the 19th session(Promoting Reconciliation in Sri Lanka – A/HRC/19/L.2) and 22nd session (Promoting Reconciliation in Sri Lanka – A/HRC/22/L.1), repeated their call once again, in US media briefing. The International community can draw it conclusion that the current regime of President Mahinda Rajapaksa has avoided the responsibility to implement what was agreed with UNSG which “underlined the importance of an accountability process” and that he “will take measures to address those grievances” of Tamil Nation. The alleged breach of International human rights law and humanitarian law remain not investigated, for almost five years. As follow up action to previous resolutions at UNHRC, calls, two reports issued end of February 2014, first issued by Office of High Commissioner for Human Rights (OHCHR) released by High Commissioner Ms Navi Pillay and the second one US State Department Human Rights report 2013 released by US Secretary of State John Kerry, highlight failures of GSL to advance reconciliation and establish accountability for alleged war crimes and crimes against humanity in Sri Lanka. Ms Navi Pillay has supported the setting-up of an “Independent International Inquiry” because the “National mechanisms have consistently failed to establish the truth and achieve justice” and “this can no longer be explained as a function of time or technical capacity, but that is a fundamentally a question of political will”, she concluded. The Government of Sri Lanka, after agreeing with UN Secretary General to act in March 2009, has not made any progress with respect to accountability and reconciliation, except holding the Northern Provincial Council elections last year September 2013 prior to Commonwealth Heads of Government Meeting in November 2013 at Colombo. The same council has no administrative functions, the province is under the control of occupying Sri Lanka Armed forces; the council has passed a resolution supporting the OHCHR to set up an Independent International Inquiry.
Time to Act – International Community
Minorities’ rights under the International Covenant on Civil and Political Rights (ICCPR) are well defined in three articles: Articles 1 on “Right to Self Determination”, 25 on “Electoral Rights” and 27 on “Rights of ethnic, religious or linguistic minorities”; were adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976. At the time of Independence of the Island of Sri Lanka in 1948, Great Britain as the last of the colonial powers promulgated a unitary constitution bringing together multiethnic, multilingual and multireligious Nations to form a country. Since then many Nations brought together have gone their own way for example: Pakistan and Bangladesh, USSR, Yugoslavia, Eretria, Czechoslovakia, East Timor and South Sudan. The antiquity of Tamil Nation in Sri Lanka is very much older than the Sinhala Nation, based on archaeological evidence and proximity of large number of Tamils live across the Palk Straight is a further proof. The 450 years colonial rule has left everyone with proof of Independence and antiquity of two Nation in Sri Lanka, contrary to partisan views. The arrival of the colonial powers challenged the mythology, Sinhala people were propagated that Sri Lanka is a Sinhala Buddhist contrary from beginning contrary to facts and even before the Sinhala language was evolved. The Colonial history of the Island starts with the landing of Portuguese in Ceylon, in 1505 and ended with the promulgation of independence in 1948. During the colonial occupation, the truth about the Tamils in the Island came to be known and the Mahavamsa myth was exposed and the area of land occupied by the Tamil Nation was defined.
Sir Hugh Cleghorn, British Colonial Secretary, June 1799 challenged the myth, when he said: “Two different nations, from a very ancient period, have divided between them the possession of the Island: the Sinhalese inhabiting the interior in its Southern and Western parts from the river Wallouwe to Chilaw and the Malabars (Tamils) who possess the Northern and Eastern Districts. These two nations differ entirely in their religion….”  The map of 1681 presented by Robert Knox , here shows three Kingdoms at the arrival of colonial rulers. This and other historical evidence shows beyond any doubt the Tamil Nation identity and antiquity in the Island of Sri Lanka are established beyond any doubt. As a linguistic group speaks one of the seven oldest languages in the world, under the ICCPR the three clauses, quoted above are applicable to the Tamil Nation and need to be restored holding a referendum among all Tamils:
An Appeal to Members of UNHRC
The international community has waited for almost FIVE years to know the truth about what happened at the last stages of the war which ended on 18 May 2009, Sri Lanka has conveniently used procrastination; even though President of Sri Lanka and the United National Secretary General (UNSG) showed their commitment by issuing a joint statement on 23 March 2009, which “underlined the importance of an accountability process” and the Government of Sri Lanka (GSL) agreed that it “will take measures to address those grievances”. As the outcome of this statement UNSG appointed Panel of Experts on June 2010 and the report was issued on 31 March 2011, President of Sri Lanka appointed Lesson Learnt and Reconciliation Commission (LLRC) in May 2010 and the report was issued on 16 December 2011, both remain unimplemented. It should be noted that the Tamil Nation has been in the Island of Sri Lanka as an Independent Nation from time immemorial that right was denied by the UK at the time of Independence in 1948, since then successive Governments of Sri Lanka have continued to deny the rights of Tamil Nation to date under current constitution. The two resolutions passed at 19th and 22nd sessions of UNHRC calling on Sri Lanka to implement GSL’s on report by LLRC remain unfulfilled. It should be noted that Sri Lanka a signatory to the International Covenant to Civil and Political Rights (ICCPR) is in breach of this covenant as given above. The fifth anniversary of the joint statement by President of Sri Lanka and UN Secretary General occurs at the 25th session in March 2014, the UNHRC members should make use of this opportunity to start the conflict resolution process by taking following actions, immediately:
Independent International Commission of Inquiry to restore justice and advance reconciliation between the two Nations
Rights of Tamil Nation are to be restored under ICCPR to which, Sri Lanka is a signatory
 HW Codrington, A Short History of Ceylon, http://books.google.com/books/about/Short_History_of_Ceylon.html?id=tqpdlaPiOyEC), pp. 9, 10.
 http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf UN Panel of Experts
 http://www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_on_Sri_Lanka.pdf , Report of the Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka, November 2012
 http://groundviews.org/2013/03/14/the-numbers-never-lie-a-comprehensive-assessment-of-sri-lankas-llrc-progress/ , The Numbers Never Lie: A Comprehensive Assessment of Sri Lanka’s LLRC Progress.
 A List of Commissions of Inquiry and Committees Appointed by the Government of Sri Lanka (2006 – 2012), http://lnwnewsbackup.files.wordpress.com/2012/03/commissions-and-committees-appointed-since-2005.pdf
 Mannar Bishop’s submission to LLRC, http://www.lankaenews.com/English/news.php?id=10562
 US State Department’s Daily Press Briefing: http://www.state.gov/r/pa/prs/dpb/2013/12/218491.htm#SRILANKA