By Usha S Sri-Skanda-Rajah –

This article aims to show that Genocide allegations made against the Rajapaksa Government are well founded and there is a major cover-up on going that must be exposed. The Indian Government (UPA) must accede to the demands of the protesting students and support an essentially Indian call for an International Genocide Probe on Sri Lanka. The UPA must come clean and reveal its own involvement in the Eelam war.

The Indian government’s (UPA’s) stubborn resistance to bringing out a strong UNHRC resolution in the 22^nd session has been most disappointing. It raises questions of complicity in the mass slaughter of Eelam Tamils that require the UPA to make a full disclosure of its involvement in the Eelam War. The Indian Students’ demand for an international genocide probe is reasonable and needs inquiry. The denial of allegations of the crime of genocide against Tamils is much like the ‘holocaust denial’ against the Jews. Why can’t the UPA support an essentially Indian call for an international probe on allegations of genocide?

Millions demanding for International Genocide Probe:

When millions of Indian students, the Chief Minister of Tamil Nadu, Ms Jayalalithaa, the DMK leader Mr. Karunanidhi , the CPI leader D. Rajah and one of BJP’s distinguished former Foreign Ministers, Yashwant Sinha  are all demanding an international investigation for genocide, it blows the mind why the UPA is showing absolute dispassion and indifference, it’s an abomination.  The recent “Ruckus” reported by The Hindu, headlined as, ‘Rajya Sabha rocked by Sri Lankan Tamil issue,” shows how emotive an issue it is.

International Investigation is Precursor for Genocide charge:

Although the emphasis should be on an ” independent international investigation,” that being the precursor to an ICC (International Criminal Court) referral for prosecution of possible genocide, an Indian call for one is perfectly appropriate, coming from India, home to more than 75 million Tamils who think that the heinous crimes committed in Sri Lanka constitute genocide.India’s so called friendship with the Rajapksa government shouldn’t come before the voice of its own people.

Mrs. Sonia’ Gandhi’s statement calling the crimes “unspeakable atrocities” is persuasive in demonstrating how important it is for UPA to take suitable action. Although Mrs. Gandhi’s notable omission in not calling for an international investigation does not gel with her description of the crimes committed especially when she should know that “a credible and independent investigation” would be impossible in a Sri Lankan domestic setting.

Tamils and TGTE insist it was Genocide and says there’s ‘Prima Facie’ case:

There is no doubt that the Tamils must insist on a genocide investigation: The TGTE (Transnational Government of Tamil Eelam) has raised the issue of the crime of Genocide as integral to any investigation. ICC Prosecutor V Akayesu has stated that Genocide intent can be inferred from the scale… of atrocities,” committed.

In addition its vitally important to consider other evidence; the highly lethal weapons including chemical weapons used; the Sri Lankan government’s shelling of civilian targets such as ‘no fire zones’ and hospitals as well as the denial of food and medicines; the premeditated act of asking the UN to leave and giving very limited access to the war zone for the International Red Cross to help the injured, count the dead and provide humanitarian assistance; preventing the international media from covering the war to ensure there were no witnesses to the crimes; the deliberate misrepresentation of facts and figures to the diplomatic corps and the media to prevent a security council meeting to stop the carnage, thereby dissuading the UN Secretary General from using his powers under article 99 to call for a special security council hearing.

These would and should constitute as indisputable evidence to show genocidal acts were committed with clear genocidal intent. Sri Lanka’s stand that it followed a policy of zero civilian casualties without a drop of blood shed has now been proved to be absolutely false.

Large scale atrocities

The casualty figures and how the “staggering” numbers (according to most human rights defenders) were arrived at, provide proof of the large scale massacre that took place. The Bishop of Mannar in his submissions to the LLRC reported that according to government records maintained “by Government Agents, Divisional Secretaries and Grama Niladaris in the Tamil provinces,” there were 146,679 ‘missing persons and that this number was based on the population figure in the Vanni before and after the war.

One cannot disregard these numbers and trivialize the enormity of the slaughter that took place.

The ‘UN Panel of Experts’ set the death toll at 40,000. The ‘UN Internal Review Panel’ said it could be more than 70,000. The findings of these two eminent UN appointed panels would give a better understanding of the botched casualty figures that came out at the height of the war and later how the Sri Lankan government tried to hide them. The facts of who was responsible for the large scale civilian deaths that occurred and how the UN failed to point out that the killings were largely caused by the government are all revealed in the reports.

Findings of the Permanent People’s Tribunal:

TGTE’s Briefing paper on Genocide made the case why an investigation into Genocide should be carried out. It cited the findings of the Permanent People’s Tribunal which was held in Dublin from 14-16 January 2010 and that of the Panel of Experts:

In its finding the Permanent People’s Tribunal stated inter alia:

“There were numerous accusations that Sri Lankan security forces were guilty of violating the Geneva Conventions on warfare and of having committed gross war crimes and crimes against humanity, particularly during the last five months of the war, between January and May 2009. The charges included the bombing of civilian habitations, hospitals, and government-proclaimed ‘safety zones’ or ‘no fire zones’ by security forces, causing innumerable deaths of civilians, doctors and aid workers. Additionally, the charges also included depriving the population of essential services such as food, water, and health facilities in war zones, and other grave crimes against humanity.” (DublinReport)

“In its work the Tribunal was reminded several times that this civil war was a ‘war without witnesses’ because the GoSL had prevented either national or international media coverage. In fact, some of the early victims were the many journalists that were murdered by unknown assassins, something which appeared to serve the agenda of the Government by silencing critical opinion” (Dublin Report) – strategic elimination of observation, control public reaction

“The atrocities carried out by the military relate particularly to civilians, and there is evidence of cluster munitions being dropped by warplanes. Some witnesses reported that white phosphorous was used in violation of international law. Several witnesses had seen burn marks on wounded civilians. Others believed that indications of napalm were apparent, and evidence of other incendiary devices has been confirmed by doctors who had cared for hundreds of Tamil civilians wounded in this manner” (Dublin Report)

The People’s Tribunal also said the crime of genocide should be added to the charges of war crimes and crimes against humanity:

Although the charge of genocide was not included in the inquiry requested of the Tribunal, some of the organizations and persons that gave testimony insisted that it be recognized that genocide occurred, or may have occurred, against the Tamil population inSri Lanka. There was not enough evidence presented before the Tribunal to determine that the crime of genocide be added to the charges of war crimes and crimes against humanity.

UN Panel of Experts Report seen as a prima facie case for Genocide by TGTE:

TGTE in its arguments further quoting sections of the UN Panel of Experts Report’s said, the report actually established a prima facie case for genocide: “Even though the Panel of Experts did not state that an act(s) of genocide were committed, the facts identified by the UNSG panel, clearly constitutes a prima facie case of genocide,” the briefing paper said, listing the types of serious violations the Panel identified:.

The Panel of Experts identified five serious types of violations committed by the Government of Sri Lanka directed at the Tamil People. These are:

(i) Widespread killing of civilians largely identified as Tamil (non-combatants) through widespread shelling,

(ii) Directed shelling of hospitals and protected humanitarian sites

(iii) Intentional denial of humanitarian assistance aimed at the Tamil populations,

(iv) Human rights and Humanitarian Law violations suffered by victims and survivors of the conflict, including the use of both IDPs upon non-combatants and violence directed at Tamil groups.

(v) Human rights violations outside the conflict zone, including actions directed against the media and other critics of the Government.

Other Reports Providing Proof:

Another report that emerged, after TGTE’s initial briefing paper, by Julian Vego interviewing UN workers in the field who were asked to leave by the Sri Lankan government, found “genocidal acts” were committed by the government. The UN Internal Review Report which also came later was in itself a scathing indictment on Sri Lanka’s conduct of the war. My extensive analysis of the Panel’s findings can found here

Higher Standard of proof for Genocide:

The higher standard of proof required for Genocide including how intention could be inferred is out there in the public domain by way of satellite images, authenticated graphic video clips of massacres, graves and executions, eye witness accounts and experts’ evidence. The OHCHR report and in particular the High Commissioner, Ms Navi Pillay’s clarion call for an independent and credible international investigation into international human rights and humanitarian law violations that took place in Sri Lanka needs to be heeded. And it is the Indian government’s duty to heed the people of Tamil Nadu and not shy away from the ‘G’ word.

Definition of Genocide

The international legal definition of the crime of genocide is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide”

Article II describes two elements of the crime of genocide:

1) the mental element, meaning the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, and

2) the physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called “genocide.”

Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity.

The heinous crimes committed, also known as ‘Mass Atrocity Crimes’ in legal terms that include war crimes, crimes against humanity, ethnic cleansing and genocide cannot be ignored and covered up.

Senior Political and Military Leaders wouldn’t be held accountable in a domestic setting:

The senior military and political leaders including Rajapaksa himself involved in these crimes would not be held accountable in any internal commission of inquiry appointed by the President. The leaked diplomatic cables sent by US ambassador Patricia Butenis cables suggest war crimes were committed by the Sri Lankan government and that there was, “little likelihood” of anyone being held accountable. In a cable dated 15 January 2010 on the subject of war crimes accountability, the US ambassador in Colombo Patricia A. Butenis implicated President Mahinda Rajapaksa in alleged war crimes committed in the final months of the Sri Lankan Civil War.[2][3] Butenis pointed out “that responsibility for many of the alleged [war] crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers (Gotabhaya Rajapaksa and Basil Rajapaksa) and opposition candidate General Fonseka.[4][5] Butenis stated that only “few tentative steps” had been taken on accountability and that there was little likelihood of anyone being held accountable for the war crimes, stating “There are no examples…of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power”.(Wikipedia)

Structural Genocide continues:  

As India seeks to protect the Rajapaksa government, the TGTE is also concerned with the structural genocide that’s ongoing in the highly militarized zone of the NorthEast of the island; one that’s intended to destroy the Tamil national identity and the demographic compositions of the Tamil people in their own historical habitats.

US resolution facilitating ongoing Genocide and against Genocide Convention –Prof. Boyle:

Just at the time of writing, TamilNet has published, University of Illinois Professor, Francis Boyle’s response to the 3^rd draft of the UNHRC resolution: “”By means of adopting this draft Resolution, the U.N. Human Rights Council and its Member States will thereby further whitewash and “bluewash” and facilitate and aid and abet the ongoing campaign of genocide by the GoSL against the Tamils in violation of the 1948 Genocide Convention and in particular but not limited to their article 1 obligation “to prevent and to punish” genocide as well as their article 3(e) obligation that prohibits and criminalizes “complicity in genocide.”

Going back to recent history, the 1983 pogrom against Tamils orchestrated by the then Sinhala government, it self amounted to acts of genocide according to Lee Kuper in his book ‘Prevention of Genocide’ (1985). The TGTE’s is calling for an international field presence in the NorthEast as a form of ‘international protection mechanism’ against the destruction of the Tamil people as a nation of people in their traditional homeland of Tamil Eelam. Section III of the book ‘New Directions in Genocide Research edited by Adam Jones, analysed different cases of genocide which included genocide in North America, the Nazi Holocaust, the Armenian genocide and the Sri Lankan genocide.

BJP Yashwant Sinha’s Revelations on India’s Duplicity and Involvement:

The former BJP External Affairs Minister, Mr. Yashwant Sinha’s speech during the debate relating to the US sponsored resolution was not only most thorough, damning and revealing, it raises serious questions of complicity for which a full disclosure by UPA is in order. Mr. Sinha spoke of the policy of duplicity of the Indian government and referred to a former Defence correspondent Nithin Gokule’s illuminating book ‘Sri Lankafrom War to Peace’ which alleges “Indiawas the hidden hand behind Sri Lanka’s success (in the war).” It also exposes a channel of communication that was opened on President Rajapaksa’s advice. Indiaagreed to having “informal exchanges between a troika” formed on either side: http://www.youtube.com/embed/y1y412wIsUc

The troika composed of  the National Security Advisor, the then Defence Secretary and the then Foreign Secretary on India’s side and the two brothers Gotabaya and Basil Rajapaksa and the Rajapaksa’s own Personal Secretary on the Sri Lankan side. “The Indian Navy destroyed the Sea Tigers and broke the back of the LTTE,” the author revealed, concluding that was what destroyed the LTTE.

The Government was speaking two languages one to Mr. Karunanidhi in Chennai and another to the Sri Lankan government, Mr. Sinha’ said explaining India’s shameless duplicity.

Mr. Sinha further went on to quote from a former Commander of the Indian Peace keeping Forces, Major General Ashok Mehta who in June 2009 made the allegation of Indian complicity: “we were complicit in the last phase of the offensive when a great number of civilians were killed. Having taken a decision to go along with the campaign, we went with it all the way and ignored what was happening on the ground,” he continued quoting from the book.

India must separate itself from the Rajapaksa brothers:

The Indian government must separate itself from the Rajapaska regime and should not be accused of complicity in the crimes, especially in view of Gotabaya Rajapaksa, the defence Minister’s claim that unlike previous Eelam wars, this time he had kept the Indian government informed of their actions every step of the way which was the reason for their in victory. Gotabaya’s expose that India was briefed all the way was again recalled by Mr. Sinha: When explaining what was different from the Eelam war of 1987 (where India intervened to prevent the complete annihilation of the LLTE) Gotabaya on June 1^st had said: “The primary problem in 1987 was that the relations between India and Sri Lanka was not managed very effectively but this time the President of Sri Lanka went out of his way to keep New Delhi briefed about all the new developments taking place in Sri Lanka (through the troika). The relations was managed through maintaining a clear communication line, at the very highest level; while other countries would mount pressure on us through diplomatic channels and economic means, only India would influence the military campaign,” he had said, Mr. Sinha reminded the Lok Sabha.

Mr. Sinha not only said India could have prevented the deaths that occurred, he also recalled the joint statement between India and Sri Lanka after the war: “not a word was mentioned about the …dreadful violations, about the atrocities committed against the Northern Tamils,” he said.

Referring to the book “Gota’s War”, Mr. Sinha said evidence showed, “despite the fact that we knew fully well what was happening in Sri Lanka, we not only kept quiet, we became complicit in the crimes against the Tamils.”

Is India engaged in a cover-up :

In view of Gotabaya’s statement it is critical for India not to be accused of complicity and to be identified with Sri Lanka in what Mr. Sinha referred to as the “butchering” of civilians”; rather it should distance it self from Sri Lanka and these allegations. If India fails to expose Sri Lanka’s crimes, India will be seen as being engaged in a massive cover-up which is as serious as the commission of the crime (see article 111 of the Genocide Convention). In fact there is a demand from the Indian people for full disclosure of India’s involvement in the war in terms of the assistance given to Sri Lanka including weapons, surveillance equipment, intelligence and personnel.

India’s foreign policy dictated by China factor, Rajapaksa using India’s “fear” to the max:

Further Mr. Yash want Sinha alluded to India’s (UPA’s) foreign policy based he said on “fear” and “helplessness” and not on “confidence”. The China factor dictated the way India’s foreign policy direction was headed and the Rajapaksa government has exploited the situation to its maximum advantage. India has shown it does not want to lose out to China, on its most favoured nation status in its dealings withSri Lanka and as its “strategic and trading partner,” that resulted in India competing with China forSri Lanka’s affections. In fact Manmohan Singh had shared this fear with Mr. Vaikho which is why Manmohan Singh has time again ignored Tamil Nadu Chief Minister’s call for economic sanctions against Sri Lanka; an issue Mr. Sinha took up in the debate, which he said he himself suggested in April 2009: This showed India’s “helplessness” which he said, was not the way to make foreign policy.

Four key player’s crucial role in reversing India’s Sri Lanka policy:

In an article titled: Shivshankar Menon, Vijay Nambiar, MK Narayanan and Nirupama Menon Rao Played Crucial Role in Reversing India’s Time-tested Sri Lanka Policy, Sam Rajappa explains how Indian Sri Lanka policy changed from pro-Tamil to pro-Rajapaksa. He writes the “foundation” of that pro-Tamil policy “rested on the belief the Tamils inSri Lanka are the natural ally ofIndia while the Sinhalese are fair weather allies.”

In the article Sam Rajappa writes how the reversal happened and surmises that “India has much to answer for the atrocities Sri Lanka had committed.”: “The turnaround in India’s Sri Lanka policy was brought about by four civilian officers whose primary objective was to promote the sphere of influence of China in the Indian Ocean rim States and keep the USA out. The PMO played along with this group. The leader of this group is Shivshanker Menon who cut his teeth in the Indian Foreign Service as a junior officer in Beijing when he was bowled over by the Thoughts of Mao. He had two more postings in Beijing which helped the Chinese strengthen their ties with the Indian official. Vijay Nambiar, a 1967 batch IFS officer, is fluent in Chinese language and has worked in India’s diplomatic missions in Hong Kong and Beijingamong other palaces and developed close affinity with China. Nirupama Rao also had a stint as India’s ambassador to China before becoming external affairs secretary. The three, with former National Security Adviser MK Narayanan played a crucial role in reversing India’s time-tested Sri Lanka policy enunciated by Nehru and carried forward by Indira Gandhi.The foreign office trio and Narayanan, in the name of fighting international terrorism helped train and equip Sri Lankan armed forces to wipe out the LTTE and along with it the Tamil movement for autonomy.For the final push, Rajapaksa sought the help of Lt.-Gen. Satish Nambiar, a retired Indian Army officer. Vijay Nambiar, as adviser to the UN Secretary-General, had ensured the closing stages of the war was conducted without witnesses. India has much to answer for the atrocities Sri Lanka had committed.”

Stating the obvious Sam Rajappa explains the end result of that policy: “The Northern and theEasternProvinces, traditional homeland of the Tamils, have come under the virtual suzerainty ofChina.”

That Sri Lanka continues to blackmail India is evident by its reaction to India’s support for a US resolution. The AFP has reported from Colombo: “In seeming retaliation, Sri Lanka announced it would repossess part of a strategic oil storage depot from Indian Oil Corp. Ltd in the island nation’s northeastern port town of Trincomalee.”

Yashwant Sinha calls for impartial inquiry on Genocide:

Raising the plight of Tamils and the tragedy that occurred, he spoke of the, “triumphalism that became a state policy of Sri Lanka, one that still continues,” further listing some “points for action” that India must urge Sri Lanka to carry out: Of those, the call for an “absolutely impartial inquiry (with “outsiders involved”) into Genocide and other atrocities in the Eelam War” together with “withdrawal of the army from the Northern province,” stood out.

No Consensus on Parliamentary Resolution:

So far all signs point to the possibility that a resolution discussed in the Lok Sabha may not materialize: The latest reports from ‘The Hindu’ say the BJP is itself against passing a resolution that’s “country specific,” raising the issue of the Afzal resolution: “The BJP had pointed out earlier that if India had objected to the resolution passed on the Afzal Guru issue (in Pakistan), it would not be proper for it to pass one on Sri Lanka in Parliament.”

UPA Government’s ploy to Appease Mr. Karunanidhi:

The sudden mention of a possible resolution in the Indian parliament may be a ploy to get Mr. Karunanidhi back into the UPA government. One is still not sure if he has indeed left. What is most disconcerting in this drama that’s been played out on the world stage is the hypocrisy behind it. The UPA government which says it does not want to agree to an international investigation because it would infringe onSri Lanka’s sovereignty is now promising to pass a resolution on Sri Lankain parliament. How would that not count as an infringement is my question? It further illustrates my contention that it’s a tactic by UPA to appease their ally Mr. Karunanidhi and a charade played out by both to find some plausible means for him to return to the fold and to an otherwise weakened government. This same drama was enacted by UPA’s Minister, Chidambaram and Mr. Karunanidhi during the war at huge human cost.

At the time of writing ‘The Hindu’ reported that no consensus has so far been reached on the resolution: The “all-party meeting called by Lok Sabha Speaker Meira Kumar on Wednesday evening to seek a consensus on the government’s draft resolution on Sri Lankan Tamils failed: if the text did not go far enough for the DMK and the AIADMK, the BJP, the Samajwadi Party and the Janata Dal-United all said they were opposed to a country-specific resolution,” the paper reported.

It is no surprise that whilst the AIADMK and the DMK found the text not going far enough to include genocide and a call for an international investigation, the other parties were against UPA government’s move to appease its strong ally Mr. Karunanidhi with a promise of a resolution in the Indian parliament as a conciliatory gesture to woo it back.

Statements by John Kerry and Indian Ambassador – “Genocidal Double talk” – Professor Boyle:

Professor Boyle’s reaction to statements by US Secretary of State and by India’s Ambassador to the UN Dilip Sinha after the adoption of the US was reported by TamilNet: Professor Boyle called statements made by the U.S. Secretary of State, John Kerry, and by India’s ambassador to the U.N., Dilip Sinha, after the adoption of the US resolution on Sri Lanka in the Geneva sessions of the UNHCR, as “genocidal double-talk,” pointing out the “blatant hypocrisy” in praising a resolution that looked at Colombo to implement the recommendation of its local “truth” commission. While rights groups and Tamils demanded an “international” investigation into the killings in Mu’l’l’vaaykkaal, leaked U.S. State Department memos had earlier revealed US officials acknowledging the futility of local investigations when culpability for the war-crimes pointed at Sri Lanka’s President Rajapakse and his siblings.

UPA Government must not engage in a cover-up, a violation of  the Genocide Convention. It must support an Indian call for an International Genocide Probe and come clean and reveal its involvement in the Eelam war:

Mr. Yashwant Sinha’s revelations onIndia’s involvement in the Eelam War can’t be ignored and require both an inquiry and debate in parliament. The UPA government has to come clean and reveal the full extent of its involvement in the Eelam War and answer allegations of complicity that has been laid at its feet.

The UPA should not refuse the demands of millions of Indians. The fact that the US sponsored resolution, vilely inadequate, has been passed should not mean the story ends there until the 24^th UNHRC session and the 25th. What the UPA government must do is to support an essentially Indian call for an international genocide probe and make a statement to that effect to placate millions of Indians.

The higher standard of proof needed for genocide is there to be discovered; what’s needed is credible men and women in the houses of power around the world including in India and the UN to make that crucial call for an international investigation resulting in an ICC referral. Otherwise as Prof. Boyle said to ignore or “aid and abet” genocide would be a violation of article 1 of the Genocide Convention: obligation “to prevent and to punish” genocide as well as article 3(e) : obligation that prohibits and criminalizes “complicity in genocide.”

*Usha S Sri-Skanda-Rajah- Chair, TGTE Senate