By Lorenzo Fiorito –

Lorenzo Fiorito

A “crimes against humanity” case, announced on October 27, captured Tamils’ attention globally when it was filed with the Chief Prosecutor of the International Criminal Court (ICC). In an e-conference on November 6—one week later—Canada’s first MP of Tamil origin, Rathika Sitsabaiesan, pointed to possible pathways towards justice for the White Flag incident. She listed options that included bringing the Tamil de facto state into the scope of war crimes charges, and referring to the Genocide Convention.

Evidence both in the ICC submission, and in the White Flag incident, implicates Gotabaya Rajapaksa, current President of Sri Lanka.

The ICC submission accuses Gotabaya Rajapaksa (along with other defendants) of crimes against humanity such as deportation, persecution, torture, and violation of the right of return. These accusations are backed up by numerous reports from Amnesty International, Human Rights Watch, and the United Nations.

In an interview on October 28 (recording available below), Wayne Jordash QC of Global Rights Compliance emphasized that—although the legal process might move slowly and the outcome was difficult to predict—in a best-case scenario, convictions would result in life sentences. The recent ICC case involving the Rohingya’s deportation from Myanmar to Bangladesh could serve as precedent, giving the Court jurisdiction to examine evidence in the case. Jordash had previously participated in that case.

During her keynote speech, former Canadian MP and current business professor Rathika Sitsabaiesan noted that Gotabaya has also been accused, via command responsibility, of crimes committed during the White Flag incident. On May 18, 2009, 103 LTTE fighters and their families (including 29 children) were either extrajudicially killed, or made to disappear, while attempting to surrender.

A UK Channel 4 news report from 2011 points to Gotabaya—then Sri Lanka’s defence minister—as having ordered Brig. Gen. Shavendra Silva to “finish the job by whatever means necessary.” Silva, Sitsabaiesan noted, is now persona non grata in the USA.

Sitsabaiesan then pointed out that, according to Article 41(b) of Additional Protocol I (AP-I) to the Geneva Conventions, killing surrendering fighters is a war crime. However, AP-I only applies when the conflict is an international armed conflict (IAC)—a war between two states.

The former MP went on to quote a statement by former Sri Lankan President Chandrika Kumaratunge, reported in The Hindu on April 12, 2003, that “the Liberation Tigers of Tamil Eelam (LTTE) has established a ‘de facto separate State’ in the north of her country and in parts of the east since entering into peace talks.”

She additionally cited a 2007 article in The Economist, and an academic work entitled “Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-controlled Areas in Sri Lanka” by Oslo-based human geographer Kristian Stokke. Both articles described a “de facto state” belonging to Tamils.

Given that such a de facto Tamil state existed within recent memory, the conflict was, arguably, an IAC. This perspective, argued Sitsabaiesan, could allow the killing of surrendering Tamil political leaders and fighters during the White Flag incident to be prosecuted under the Geneva Conventions.

Sitsabaiesan furthermore highlighted that, even though Sri Lanka had not ratified the more recent Rome Statute establishing the ICC, the state had ratified the Genocide Convention, which came into effect in the 1950s. She then referred to case law from the European Court of Human Rights, the Drélingas v Lithuania case from March 12, 2019, which identified the crime of ‘ethno-political genocide.’ In this case, the court found that killing two members of a political organization, which defended a national group, was an act of genocide. She raised the possibility that this finding might be applied to the White Flag incident.

During his interview, Jordash was clear: the evidence in the ICC submission (submitted on behalf of 200 victims who reside in the UK) is extremely sound. He stated, “You’re talking about the most serious crimes that are prosecuted in international courts and that are prosecuted in national courts….you’re talking about leaders who are at the top of the chain of command, top of the chain of authority, who are most responsible for these crimes.”

When asked about other possible routes for justice, for victims and survivors on the island, Jordash said, “There’s principles of universal jurisdiction. That may be the starting point, in the sense that countries have obligations to investigate and prosecute certain crimes—crimes which effectively are considered…to be…universal…i.e. that they are so serious and so grave that every country has the obligation to investigate and prosecute those crimes if they have the evidence….Countries should investigate and prosecute these crimes because they concern the world.”

Sitsabaiesan stated: “If we want to get justice for the White Flag incident, let’s call things what they are. Let’s say openly that Sri Lanka, and the world, once recognized a separate state for Tamils. And let’s use that fact to get justice for those maaveerar (freedom fighters) who were murdered, and those made to disappear, in cold blood—on the orders of Sri Lanka’s currently sitting President.” She ended her speech with a call for unity against anti-terror legislation that criminalizes Tamil political expression, and advocated a referendum to determine Tamils’ political will.

The interview with Jordash:

*Lorenzo Fiorito (LLM) is a lawyer and Tamil human rights activist based in the UK.