Colombo Telegraph

The Search For Justice: Will Sri Lanka Match Up To The Task?

By Usha S Sri-Skanda-Rajah

Usha S Sri-Skanda-Rajah

In the article: “Genocide In Sri Lanka: It’s A Question That Certainly Needs To Be Litigated“,[1] I identified two related issues currently of critical consequence to Tamils:

  • The deferment of the release of the OISL report (the OHCHR Investigation on Sri Lanka report) initially fixed for March 25, 2015
  • and the question of whether or not it was Genocide and the Dire need for it to be litigated.

On the subject of deferment, recent pronouncements coming from the new Sri Lankan regime beg the question that in the search for justice for the Tamil people..will Sri Lanka match up to the task?

Shocking Admission

Sirisena Regime would have nothing to offer to strengthen OISL Report in September

The announcement by Ajith P Perera, Sri Lanka’s new Deputy Minister of External Affairs of a postponement of a domestic inquiry, in other words that, “there would be no immediate domestic probe as the government will only submit a report to the UN Human Rights Council (UNHRC) in September on the modalities,”[2] does not come as a surprise to the Tamil people.

It’s as expected, Sri Lanka has managed to con the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein into agreeing to a deferral of the release of the findings of the OISL report until September 2015 – undoubtedly on a false pretext.

Adding insult to injury, Mangala Samaraweera’s deputy still boasts of “the diplomatic victory” the new regime achieved by the deferral. Talking to Ceylon Today, he seems to be boldly theorising, that “when Sri Lanka is ready to conduct an impartial inquiry the issue is a domestic problem and there will be no room for any international intervention.” There wasn’t the slightest show of regret for the delay in any form by the Minister.

It’s without question the deferral is final and the only one that the High Commissioner was prepared to give and has said so in no uncertain terms. It’s also without question the deferral was obtained in the now mistaken belief that Sri Lanka would conduct its internal investigation with all the modalities in place, making available new information to strengthen the OISL report, [3] get on with the business of hearing witnesses, just as the High Commissioner stated in his opening statement to the UNHRC, whilst delivering his annual report. Given the allotted time of six months, he was expecting the, “authorities to consult deeply with the people, particularly victims, in order to design mechanisms that will work and not repeat the failures of the past.” [4]

Sri Lanka’s volte-face should make it incumbent upon the High Commissioner to proceed with the release of the OISL report at the 30th session of the UNHRC in September giving Sri Lanka no further reprieves.

TGTE Seeking ICC Referral

It’s right that we the Transnational Government of Tamil Eelam (TGTE), “are urging the United Nations to refer Sri Lanka to the International Criminal Court (ICC) or establish a similar credible International Judicial Mechanism,” for the purpose, “of investigating and prosecuting war crimes, crimes against humanity and genocide – committed against the Tamil people by the Sri Lankan State.” We are in the process of collecting a million signatures from concerned people around the world in support of the referral. [5]

In the critical issue of the search for justice, neither the Tamil people nor TGTE, nor concerned others are prepared to stand by and watch when we know that Sri Lanka will never match up to the task of conducting a truly credible investigation and prosecution of all the alleged perpetrators including senior political and military leaders accountable under the doctrine of command responsibility.

TGTE proved right about delaying tactics

It has been the considered and consistent view of the TGTE and that of Prime Minister Visuvanathan Rudrakumaran, “that once the report on Sri Lanka…is deferred, it will drag on without progress.” it was a “genuine fear” that the Tamil people had which he conveyed in his interview with Easwaran Rutnam for the Sunday Leader. Objecting to the deferral for a variety of reasons that were well founded, considering Sri Lanka’s latest manipulations of the system, there is no doubt Prime Minister Rudrakumaran’s concerns are valid and now with hindsight it’s apparent he is being proved right. [6]

The Law explained

The Prime Minister Rudrakumaran also explains that, “even though Sri Lanka is not a signatory to the Rome Statute, the Rome statute provides for a situation in which one or more of such crimes appears to have committed is referred to the prosecutor by the UN Security Council acting under chapter VII of the UN; also Article 39 of Chapter VII provides that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Article 41 and 42 to maintain or restore international peace and security. The TGTE’s position is that the current situation in Sri Lanka constitutes an ongoing “threat to the peace” under chapter VII article 39, because there has been absolutely no accountability for genocide, war crimes, and crimes against humanity. Therefore the Security Council should make the referral to the ICC. The Security Council is not required to listen to the people, however it would be odd in the face of one million signatures for the Security Council to disregard it. It’s also hoped in the case of overwhelming evidence members of the Security Council will not use their veto power.”

What are Transitional Justice Issues – Would the new regime deliver

The High Commissioner’s mention of ‘transitional justice’, stating the “OHCHR staff’s plan to engage on the ground with all stakeholders to advance transitional justice issues,” would mean whilst agreeing to a deferral his office would want to engage with stake holders on the ground.

As for what are ‘transitional justice issues’, the International Center for Transitional Justice[7] is a good place to get some insights into what it really means: It lists Criminal Justice, Reparations, Truth and Memory, Institutional Reform, Gender Issues and Children and Youth as ‘transitional justice issues’ which for us are very critical for an honest peace and reconciliation process:

  • Criminal Justice: The investigation and prosecution of international crimes—including genocide, crimes against humanity and war crimes—is a fundamental component of transitional justice.
  • Reparations: Reparation initiatives seek to recognize and address the harms suffered by victims of human rights violations. They can be designed in many ways, and may include symbolic as well as financial or practical measures.
  • Truth and Memory: Truth seeking initiatives can play a powerful role in documenting and acknowledging human rights violations. Memory initiatives also contribute to public understanding of past abuses.
  • Institutional Reform: Institutional reform is the process of reviewing and restructuring state institutions so that they respect human rights, preserve the rule of law, and are accountable to their constituents.
  • Gender Justice: ICTJ’s gender justice program seeks to promote truth, justice and accountability for gender-based human rights violations committed in the context of large-scale or systematic abuse.
  • Children and Youth: Children and youth are seriously affected by gross human rights violations in conflict and under repressive regimes; transitional justice measures must uniquely consider and protect their rights.

Call for Action to stop Increased ‘Post-Conflict Sexual Abuse’

However according to both the UN Secretary General Ban Ki-moon’s report on ‘Post Conflict Sexual Abuse’ and the “observations” of the Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence, Mr. Pablo De Greiff, it’s clear Sri Lanka has paid no attention to resolving such serious issues. Seeing nothing by way of concrete action thus far on these issues, both De Greiff and Ban Ki-moon have called for immediate action in their reports from Sri Lanka’s new regime.

Ban Ki moon’s report pertaining to Sri Lanka relating to “Post Conflict Sexual Violence”, [8]released by the UN Security Council indicates, “abduction, arbitrary detention, torture, rape and other forms of sexual violence have increased in the post-war period. Notably, Tamil women and girls have reported sexual abuse in the context of the ongoing militarization of their areas of residence. Allegations of sexual violence by the Sri Lankan security forces against members of the Tamil community in the closing months of the war and in the post-conflict period have been extensively documented, but rarely addressed. Testimony of women released from detention in 2014 indicates that acts of sexual torture were accompanied by racial insults and specifically directed against individuals perceived as having been linked to the Liberation Tigers of Tamil Eelam.”

In his recommendations Ban Ki-moon had this to say to the new regime: “I call upon the newly elected Government of Sri Lanka to investigate allegations of sexual violence, including against national armed and security forces, and to provide multi-sectoral services for survivors, including reparations and economic empowerment programmes for women at risk, including war widows and female heads of household.”

TGTE Senator, Dr Brian Senewiratne has written an extensive research oriented book on the “Rape and Sexual Violence of Tamil Women, Girls, Boys and Men in the North and East by the Sri Lankan Armed Forces and their Collaborators” which is a must read to realize that the situation has reached crisis proportions without ever being addressed!

Observation by Pablo De Greiff and Obligations of the State to Citizens

Pablo De Greiff, Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence who had talks with all sectors of society in Sri Lanka, had opted to keep some of his discussions confidential. De Greiff was given the now incredibly persuasive and comprehensive “genocide resolution” by the Chief Minister, Justice Wigneswaran, former member of the Supreme Court – a document that reflects the sentiments of the Tamil people and one that was unanimously passed by the Northern Provincial Council (NPC).[9]

De Grieff’s final “observations”[10] should be used as a “ready reckoner” by the Sri Lankan authorities, whether the new regime would accept the challenge posed before it and deliver is not certain.

De Greiff’s “observations” centred on the following:

  • on his views on “over use of commissions leading to confidence gap”
  • on why “short cuts to reconciliation” won’t work
  • on the need for “a State policy centered on the notion of human rights”
  • on the need for “comprehensive redress”
  • on the need for “consultation and participation”
  • and on the need for “Immediate action on Missing persons, harassment, violence, detention, land and psycho-social support”

In his conclusions, De Greiff laid emphasis on obligations owed to citizens, “obligations that stem from an international system which Sri Lanka contributed to constructing..These obligations include the right to the full truth about the violations that took place during a long swath of its history; to the investigation, prosecution, and punishment of those responsible for those violations; to the effective and equitable reparation of the violations; and to measures that seek to prevent the recurrence of those violations in the future.”

Previously, at the beginning of March 2015, the UN Under-Secretary General for Political Affairs, Jeffery Feltman [11] urged the (new), “Government leaders to take quick steps to address a number of issues ranging from land, detentions, disappearances, and the military posture in civilian areas. ”

Would these obligations by the Sri Lankan State to its citizens here in reiterated by Zeid Ra’ad Al Hussein, Jeffery Feltman, Ban Ki-moon and Pablo De Greiff be fulfilled by the Maithripala Sirisena regime?

Sirisena Regime lacks the will to implement UN recommendations

All signs indicate that the new Sirisena regime neither has the will nor is ready to recognise, accept and implement the recommendations made by these officials. Tamil issues were not considered in the regime’s 100 day work programme; in the more than hundred days it has been in power, except for some cosmetic window dressing all the repressive and oppressive measures against Tamils are still in place including heavy militarisation in the Tamil heartland of the North and East of Sri Lanka; although a “few pockets” of land have been returned as a token gesture to show the outside side world[12], nothing substantive has been done towards a genuine attempt to return the people’s lands, as expected, as can be gathered from the Chief Minister[13] ; there is still definitive proof “beyond reasonable doubt” of the existence of secret camps where Tamils are being held without charge [14]; the relatives of the disappeared are still to be given even an inkling of the whereabouts of their missing loved ones; army intelligence is deployed to hover around people applying for Habeas Corpus; [15] there has been no arrangements made for displaced people still living in camps; the members of the NPC are being blocked from entering certain areas. The Governor still seems to over-ride the people’s representative, the Chief Minister.

Whole Sri Lankan Apparatus biased against Justice for Tamils

It must not be forgotten that President Sirisena was acting Defence Minister during the height of the war and has promised that he would not allow anyone to be tried for war crimes; Prime Minister, Ranil Wickremesinghe has refuted the casualty figures, is not on speaking terms with the Chief Minister and has called for the NPC resolution on genocide to be withdrawn. The new Army Commander sat as chair of the “army inquiry” that exonerated all the members of the Sri Lankan armed forces. The Governor of the Northern Province was a member of the LLRC who supported the Rajapaksa government’s version of events: “Para 9.4 of the LLRC-Report states that the LLRC ‘is satisfied’ that the military strategy of the Armed Forces was ‘one that was carefully conceived’, which gave highest importance to the avoidance of ‘civilian casualties or minimizing them’. The LLRC believes that the civilians in the No-Fire Zones were not deliberately targeted (para 9.6).” [16] Former President who waged, ‘a war for peace’, that caused untold suffering and later back tracked on her promise to make peace, undermining Ranil’s peace talks with the LTTE has been appointed to head the Presidential Task Force (PTF) to promote national unity in Sri Lanka. [17] It would appear that institutionally speaking the whole Sri Lankan apparatus is biased against justice for the Tamil people and have never considered their aspirations but would rather be at the controlling end.

New Regime pre-occupied with securing a Parliamentary Majority

The new regime is terribly pre-occupied with retaining its position in the forthcoming elections in June 2015. The need for a parliamentary majority for the ruling coalition made up of Maithripala Sirisena and Ranil Wickremesinghe against those forces supporting the Rajapaksas who are hell bent on orchestrating a comeback, seems to be the primary and only agenda of the new regime whilst it dabbles with the passage of the 19th Amendment and questions of whether or not and how to clip or abolish the enormous Presidential powers that Rajapaksa gave himself under the 18th amendment – the abolition of the “Executive Presidency was the primary focus of the coalition’s Presidential campaign manifesto. The concern is that if Mahinda Rajapaksa becomes Prime Minister he would want to shift power to himself. Sadly this is being used as a means of coercing the Tamil people and the TNA into quiet submission. This is the very same excuse that is being used to convince the UN and the international community into submission as well.

David Cameron told he is God

But countries such as the UK would have none of it – David Cameron [18], mobbed by 200 women searching for their disappeared loved ones when he visited Jaffna, referring to him as God, wrote that at the end of the six month period, “the spotlight will be on Sri Lanka,”[19] in his op-ed piece about his meeting with President Sirisena. [20] Ed Miliband the opposition leader has vowed to push for a full international independent investigation. And the UK Foreign Secretary, Philip Hammond has called for, “progress on accountability ahead of the OISL report.” [21]

A Forensic Examination of war zone by UN experts required

I believe if the new regime is sincere it must agree to the OISL investigators entering Sri Lanka, to do, amongst other, forensic testing/examination of the whole war zone for evidence, and also to look for skeletal remains, all with a view to determining the use of cluster bombs, chemical weapons and similar illegal weaponry – despite the fear that it may be probably too late, for clean-up measures would have already taken place. Additionally the mass graves that have been unearthed in Tamil areas should also be brought under the scrutiny of the UN. [22]

Nowhere…

It should not be forgotten that nowhere in history have alleged perpetrators, their backers and protectors admitted to a mass atrocity crime such as genocide.

Nowhere, in practice, would you find the state that allegedly committed mass atrocity crimes to be trusted to conduct an independent and credible investigation.

Nowhere has it happened, in practice, that the State party who’s alleged to have committed heinous crimes such as these, be expected to prosecute their own and find them guilty.

Issues of Sovereignty should not hamper prosecutions for mass atrocities

Nowhere has “sovereignty issues” prevented, mass atrocity crimes [23] such as war crimes, crime against humanity, genocide and additionally ethnic cleansing now even rape allegedly committed by the state party, from being investigated and those found guilty as charged, punished. On the contrary state parties as a means of “reinforcing their sovereignty” are expected to be responsible for preventing such atrocities happening in their space. Sovereignty by itself does not exclude a state party from being investigated. (Although the mandate of the ICC provides, it’s jurisdiction kicks in only in the event an alleged state party is, “unable or unwilling to conduct its own” or when the Security Council refers a case when, “there is a threat to peace.” The ICC is the latter version of the Nuremberg Trials, [24] established by the, “allied leaders of Great Britain, United States and Russia for the purpose of bringing Nazi war criminals to justice.

TGTE seeking similar judicial mechanisms as the ICTR and the ICTY

In October 1994, the International Criminal Tribunal for Rwanda (ICTR), in Tanzania, was set up as an extension of the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague, the first international tribunal since the Nuremburg Trials of 1945-46 and the first with the mandate to prosecute the crime of genocide. In its search for justice, it’s TGTE’s aim to secure a similar international judicial mechanism to try those responsible for Tamil genocide and its million signature campaign is being pursued to persuade the UN to move forward to prosecute those responsible.

Nowhere would you find an international independent investigation, conducted, in this case, by the OISL, the team of experts appointed by the OHCHR with its report already in its final stages of completion ready to be presented to the UNHRC, the presentation of which was deferred and could be superseded by an internal investigation?

An article by Callum Macrae[25]: ‘Stalling Justice in Sri Lanka‘ looks at regime change, “but says, ” a disturbing dark reality remains: the absence of justice for the massacre of thousands of Tamil civilians. The article analyses the situation in Sri Lanka and covers the whole gamut of avenues available internationally in the search for justice, an excellent article, not to be missed.

How can then anyone be reasonably convinced that Sri Lanka would conduct its own impartial and transparent investigation. Having no faith in a domestic investigation the TGTE, in the search for truth and justice for the Tamil people, believes, Sri Lankan regimes new or old will never match up to the task. The solution lies with the Tamil people never to relent and to pursue justice through international mechanisms at all costs.

Please go to www.tgte-icc.org to sign up for the million signature campaign urging the UN to refer Sri Lanka to the ICC.. Thank you


[1] https://www.colombotelegraph.com/index.php/genocide-in-sri-lanka-its-a-question-that-certainly-needs-to-be-litigated/

[2] http://www.tgte-icc.org/

[3] http://www.ceylontoday.lk/51-90024-news-detail-no-immediate-war-crimes-probe-only-report-on-modalities-to-un-in-september.html

[4] http://www.ucanews.com/news/un-deferral-must-be-used-to-make-sri-lanka-war-crimes-report-stronger/73047

[5] http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15642&LangID=E#sthash.g3RoAM0i.pKiYyspt.dpuf

[6] http://www.thesundayleader.lk/2015/02/22/no-change-in-sri-lanka-after-polls-v-rudrakumar/

[7] https://www.ictj.org/our-work/transitional-justice-issues

[8] http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_203.pdf

[9] https://www.tamilnet.com/art.html?catid=13&artid=37714

[10]https://www.colombotelegraph.com/index.php/full-text-unhrc-special-rapporteurs-observations-after-his-recent-visit-to-sri-lanka/

[11] http://www.un.org/apps/news/story.asp?NewsID=50232#.VS9nifnF8k2

[12] https://www.youtube.com/watch?v=5oAF8ZmsJyY

[13] https://www.youtube.com/watch?v=5oAF8ZmsJyY

[14] http://www.jdslanka.org/index.php/news-features/politics-a-current-affairs/523-proof-of-secret-camps-pm-ranil-denies-exist

[15] https://www.tamilnet.com/art.html?catid=13&artid=37724

[16] http://groundviews.org/2011/12/18/the-llrc-report-a-critical-reading/

[17] http://www.dailymirror.lk/68401/to-dream-the-impossible-dream

[18] http://www.dailymail.co.uk/news/article-2507838/David-Cameron-mobbed-200-Tamil-protesters.html

[19] http://www.tamilguardian.com/article.asp?articleid=14045

[20] http://www.dailymirror.lk/65877/cameron-on-his-meeting-with-maithripala

[21] http://www.tamilguardian.com/article.asp?articleid=14043

[22] http://www.therepublicsquare.com/politics/2014/03/officials-say-mannar-mass-grave-is-an-old-cemetery-is-this-a-cover-up/

[23]   http://www.un.org/en/preventgenocide/adviser/pdf/framework%20of%20analysis%20for%20atrocity%20crimes_en.pdf

[24] http://www.history.com/topics/world-war-ii/nuremberg-trials

[25] https://foreignpolicy.com/2015/03/12/stalling-justice-in-sri-lanka/

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