What member states must not do is help Sri Lanka perpetuate a lie. Canada and the ‘Core Group on Sri Lanka’ must stand with victims and lead the call for an international judicial accountability mechanism.
It’s ten years since the Mullivaikkaal genocide. For Tamils this is particularly a poignant and painful moment in time. The 40th session of the UN Human Rights Council (UNHRC) is in progress and another resolution on, “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka,” is being drafted by the Core Group on Sri Lanka.
At the other front, as of writing, speculation is rife that President Sirisena’s five man delegation that includes the new Governor of the Northern Province, is going to the UNHRC to seek a withdrawal from its commitments under the two resolutions Sri Lanka co-sponsored. Sirisena is dead against, “foreign participation” and won’t have that.
Seems as though there may be more drama coming and there’s no telling how the Core Group and the UNHRC would respond; although there can’t be any doubt this unending saga that relies on a domestic mechanism has got to end. And end it must.
In spite of the confusion, there are still some days left to finalise the draft and the likelihood that Sri Lanka could be given another extension is still true. With this in mind, Tamil Canadians, writing to Prime Minister, Justin Trudeau and Foreign Affairs Minister, Chrystia Freeland, urging against any extensions, want Canada to, “stand firm on the side of victims massacred in the Mullivaikkaal Genocide and lead the call for international action, for the UNHRC to ask the UN General Assembly to request the Security Council to refer Sri Lanka to the ‘International Criminal Court’ or take the steps necessary for the creation of a ‘Special International Criminal Tribunal for Sri Lanka – to try senior military and political leaders for mass atrocity crimes including war crimes, crimes against humanity, rape and genocide.”
The genocide in Sri Lanka is a question that needs to be litigated and any right thinking person would agree, allowing Sri Lanka to adjudicate the genocide it committed is not a rational proposition. Realistically speaking allowing Sri Lanka to investigate genocide is to allow the country under scrutiny to prosecute its own crimes and should be surely ruled out.
Tamils missing, disappeared, raped, tortured and killed in Sri Lanka have not only got to be counted and accounted for, but it’s also imperative the perpetrators of these heinous crimes are called to account in an independent international tribunal that will look after the interests of victims and has the trust of the Tamil community. Like I wrote, the Report by Charles Petrie on, “UN failures in Sri Lanka must also be seen as a scathing indictment on the perpetrators – the Rajapaksa government.” I said it when the Report was released and say it now: “the time has come to arraign the accused.”
While anticipating the usual shenanigans from Sri Lanka, Tamils are placing their faith wholly on the rule of law according to international standards and norms, and are looking to the UNHRC and Canada and the Core Group to deliver justice for the victims through an international judicial accountability mechanism and not through a domestic mechanism, hybrid or not.
Most Tamils and Tamil organisations in the diaspora and in the homeland are solidly against giving Sri Lanka any further extensions. While a massive protest and shut down by Tamils was taking place in the homeland as the UNHRC opened its sessions, numerous Tamil diaspora organisations were writing to the High Commissioner for Human Rights (High Commissioner) and to the 47 member states of the UNHRC; they are in unison, urging against giving Sri Lanka anymore additional time. Furthermore the students of the University of Jaffna are planning a Mass Protest Rally on March 16 in Jaffna and March 19th in Batticaloa, calling for an international investigation and having the blessings of Justice Wigneswaran who has called on the people to give their full support to the initiative.
The news thus far coming from the 40th session of the UNHRC doesn’t look good. All signs seem to indicate Sri Lanka will be aided in its sinister moves to obstruct justice yet again, by no less than the UNHRC an august body, one that everyone relies on to side with victims – the UNHRC which is supposed to expose and facilitate the prosecution of incalcitrant states that abuse human rights – in this case genocide. It would be unconscionable for Sri Lanka to be given a further reprieve but that is what will happen – Handing out extension after extension in which to fulfill its transitional justice obligations set out in resolutions 30/1 and 34/1, would amount to helping Sri Lanka perpetuate a lie – when everyone knows and should know by now the chances it would conform are nil.
As the Core Group on Sri Lanka – UK, Canada, Germany, North Macedonia, Montenegro and Northern Ireland finalizes the draft of another new resolution, it’s abundantly clear, wheels are being set in motion to sugar coat it beyond all reason and logic, with no consequences for non-compliance – all this only to seek Sri Lanka’s cooperation and co-sponsorship to facilitate its passage without a vote. This is wrong, any which way you look at it, when now more than ever before, there are many more compelling reasons why it is insane to take this path when Canada and the members of the Core Group must know that the, “UNHRC cannot rely on Sri Lanka to prosecute its armed forces.”
The granting of another extension would be devastating news for Tamils. The Minister of Foreign Affairs of the Transnational Government of Tamil Eelam (TGTE), Manicka Vasagar, currently in Geneva asks whether the delegates are, “listening to victims.” In addressing the UNHRC and members of the Core Group, the Minister makes the case why an ICC referral or an international mechanism, together with a country based Special Rappoteur in the Tamil Homeland in the North and East including immediate de-militarisation is critically important.
In anticipation of her much awaited report on Sri Lanka, writing to the UN High Commissioner for Human Rights, Michelle Bachelet, the TGTE appealed to her, “as the paramount defender of Human Rights,” to “halt Sri Lanka’s UNHRC Charade.”
When the report finally came, the UN High Commissioner for Human Rights in her report did not mince words (see Paragraph 51) about Sri Lanka’s failure to establish a trustworthy domestic mechanism. It was honest. Alluding to “some segments of the civil society”, who have, she said, “continued to call for international investigations and for the Security Council to refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes,” and expressing trepidation that, “only a handful of cases are likely to be addressed by the principles of universal jurisdiction,” the High Commissioner stressed the “need” for, “Alternatives, including some forms of international investigation and prosecution..to ensure that those most responsible for the most serious crimes are prosecuted.”
“The High Commissioner stresses that the risk of new violations increases when impunity for serious crimes continues unchecked. To date, Sri Lanka has failed to seize the opportunity provided by the Human Rights Council to establish a trustworthy domestic mechanism to address impunity or to show, by consistent progress in emblematic cases, that such a mechanism is not necessary. Some segments of civil society have continued to call for international investigations and for the Security Council to refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes. The High Commissioner once again encourages Member States to prosecute Sri Lankans suspected of crimes against humanity, war crimes or other gross violations of human rights, in accordance with universal jurisdiction principles. This is likely to address only a handful of cases, however, where alleged suspects happen to be in the territory of countries receptive to the application of universal jurisdiction. Alternatives, including some forms of international investigation and prosecution, are therefore needed to ensure that those most responsible for the most serious crimes are prosecuted.”
The atmosphere in the coming days at the UNHRC is going to be quite tense and very painful for Tamils to bear. Yet Tamils would hang on to the last vestiges of hope that the draft would undergo necessary changes requested on behalf of victims – it’s still not too late for the Core Group to heed the afore mentioned advice of the High Commissioner for Human Rights; heed too the numerous voices crying out for justice. It’s still possible for the Core group to call, “Sri Lanka’s bluff,” and muster enough support among member countries and do the right thing by, “calling for Sri Lanka’s situation to be referred to the International Criminal Court.”
For Tamils the first jaw dropping bombshell came when the UK representative in the UN Julian Braithwaite, ahead of the 40th session, made the announcement on behalf of the Core Group that the new draft would basically call for, “continuation of the cooperation begun in 2015 in partnership with Sri Lanka.” In other words the same old stuff in resolution 30/1 and 34/1 will be regurgitated and produced in the new one.
And as announced the draft in its present form is indeed a travesty of justice – an absolute cop out, when facts stare in the face that Sri Lanka has neither the political will, nor wherewithal nor the Southern consensus required for a domestic judicial accountability mechanism “with foreign participation” that’s called for in 30/1.Sri Lanka despite being given ample time, has failed to act and will not act. Considering Sri Lanka’s President and Prime Minister have rejected outright any “foreign participation” set out in the 2015 resolution & vowed they wouldn’t allow a single soldier to be prosecuted, it is insane to expect “cooperation”. Insanity is described as doing the same thing over and over again and expecting a different result.
It seems, President Sirisena, is sending a five member delegation to seek a withdrawal from its commitments Sri Lanka co-sponsored in 2015 and 2017. The Tamil Guardian reporting, “the announcement comes amid much contradiction as the foreign ministry said it would co-sponsor the new roll over resolution next week, only for the President to say he would be seeking a withdrawal.” Earlier Mahinda Samarasinghe – the man who led the Sri Lanka delegation in March of 2013 at the 22nd session during Mahinda Rajapaksa’s time was to lead the delegation but has backed out. Listening to Mahinda Samarasinghe making his presentation was painful the last time round. The International Truth and Justice ProjectSL (ITJP) questioning his credibility expresses doubt, “he can be taken seriously in this role when he continues to deny there’s even a problem to fix.
It’s also rumoured that Prime Minister Ranil Wickremesinghe is sending his own delegation – one that would be willing to co-sponsor the resolution. As of writing no one knows how this is going to turn out.
Those who have seen the rollover draft would know, there’s nothing new that catches the eye except Sri Lanka is said to be introducing a ‘truth and reconciliation commission’ Bill (TRC). This is in keeping with Sri Lanka’s typical “drip feeding” style, a modus operandi of theirs to make up for non-compliance and then play smart, by either shelving or slowing down the process of the said provision. This time too Sri Lankan delegation would come with a grand plan, hedging its obligations and back to prevaricating upon its return home.
It’s a crying shame the new draft has failed like before to provide strict bench marks and time frames for Sri Lanka to adhere to. Even if it does it won’t offer any comfort to victim’s families who don’t have any faith in a domestic judicial accountability mechanism anyway.
Leela Devi Anandarajah, the Secretary of the Association of Mothers of the ‘Enforced Disappeared’ representing all 8 Tamil districts in the island, is distraught at developments in Geneva. In an interview given to Suthan Raj of IBC Tamil, she shares her frustration at UK’s attitude: She spoke of how mothers in search of justice for their children disappeared by Sri Lanka (who they hope may be still be alive), who want an international judicial accountability mechanism, are feeling betrayed by what’s going on at the 40th session. Expressing dissatisfaction that Sri Lanka could be given another two year extension she said she was exasperated that UK is taking the lead in it – UK, that’s was once the British colonial power that left the island in the hands of the Sinhalese, is letting us down once again, she said. Disappointed that UK mistakenly thinks the office of Missing Persons is functioning well, which is not true, stating the office only exists, its rent must be being paid that’s all, telling Suthan Raj the families were not going to give up the fight and will carry on their search for justice, despite this absolutely devastating news coming from UK and the ‘Core Group’.
In that vein, Prime Minister Ranil Wickremesinghe’s proposal to establish a ‘Truth and Reconciliation Commission’ is far too premature. And his call to “forgive and forget” is without merit when there has been no admission of guilt or expression of remorse. It is important to note in South Africa the TRC was established not by the persecutors but by the victims at the end of the apartheid era when Blacks won the right to govern themselves and not before. While Sinhala Buddhist supremacist policies prevail in Sri Lanka, a TRC is neither feasible nor viable.
In their letter to the Prime Minister and to the Foreign Affairs Minister, Chrystia Freeland, delivered through Member of Parliament for Scarborough Rouge-Park and Parliamentary Secretary to the Minister of Canadian Heritage and Multiculturalism, Gary Andandasangaree, Tamil Canadians, underscored, among other, the need for Canada to play a lead role at the UNHRC, as the body prepares to vote on a new resolution.
The letter touched on many issues deserving high priority, that the High Commissioner mentioned in her Report on Sri Lanka
The letter made clear “Sri Lanka has neither the will, nor wherewithal, nor the southern consensus needed to create a domestic mechanism with foreign participation as called for in resolution 30/1 and 34/1.”
And I quote:
“Despite being granted a two year extension in March 2017, Sri Lanka has failed to implement nearly all of the substantial provisions contained in resolutions 30/1 of 2015 and 34/1 of 2017, both of which it co-sponsored – including the failure to establish a judicial accountability mechanism, in a domestic setting with foreign participation, as promised. That’s why a statement from the United Kingdom ahead of the March 2019 session, “to continue the cooperation begun in 2015,” and to work, “in partnership with Sri Lanka,” comes as a shock to Tamil Canadians. This move is devastating to say the least, when Sri Lanka continues to show it has neither the will, nor wherewithal, nor the southern consensus needed to create a domestic mechanism with foreign participation as called for in the resolution. This considering President Sirisena has categorically rejected any “foreign participation”, insisting he will not allow even one soldier to be prosecuted, going as far as removing Mr. Mangala Samaraweera, from the ‘Foreign Affairs’ portfolio, for agreeing to co-sponsor resolutions 30/1 and 34/1.”
Further the letter reiterated the misgivings of Tamils with respect to establishing a TRC before a judicial accountability mechanism has handed its verdict, calling its launch far too premature – referring to South Africa and the importance of bearing in mind that the TRC there was’ “established not by the persecutors but by the victims at the end of the apartheid era when Blacks won the right to govern themselves and not before.”
As things are, no action can be expected from Sri Lanka, a government in turmoil & fractured within; with its politicians engaged in violence in parliament; whose President tried to dissolve parliament when his attempt to sack the Prime Minister and bring back Mahinda Rajapaksa failed. It’s significant that Sri Lanka’s President himself has allegations of mass atrocities held against him.
Canada must raise its voice against letting Sri Lanka off the hook for its continuing impunity. All political parties in Canada must work together in solidarity at this point and ideally speak with one voice, Canadian Tamils must persuade Canada to not settle merely for the full implementation of the resolution within a precise and firm time frame, futile as it may, but engage and lobby as many member countries as possible to get an international mechanism going. This before alleged war criminals, Gotabaya and Mahinda Rajapaksa come to power – which is very much in the cards with the Presidential and Parliamentary elections not far away.
All of these point to only one thing. While the application of ‘universal jurisdiction’ by individual states to prosecute war criminals must be pursued rigorously, the way forward for member states of the UNHRC is to ask the UN General Assembly to request the UN Security Council to refer Sri Lanka to the International Criminal Court or to an international special criminal tribunal for Sri Lanka set up for that purpose.
No doubt, the need of the hour is for the Core Group on Sri Lanka and the UNHRC to act and act decisively, as per the High Commissioner’s words, “to refer the situation in Sri Lanka to the International Criminal Court for international prosecutions and adjudication of those most responsible for these crimes.”
Extracts from the Letter to the Prime Minister of Canada from members of the TGTE:
For Tamils all over the world this year is particularly poignant as they commemorate the 10th anniversary of the Mullivaikkaal Genocide. In the search for justice for victims, Canada must stand with, standby and stand firm on the side of victims. There’s no denying the situation for Tamils in the Tamil homeland in the North and East has only gotten worse. There is much cause for concern as the political crisis in the South festers from within and the government is fractured beyond repair. The feud between the two major Sinhala political parties – that caused internecine brawls in parliament, with violence aimed at the speaker and law enforcement, creating splits within them – hasn’t really ended; the relationship between President Maithripala Sirisena and Prime Minister Ranil Wickremasinghe continues to be acrimonious; this together with the impending comeback of former President Mahinda Rajapaksa has exacerbated concerns, that all-round, conditions for the Tamil people in their homeland will continue to be grim – with no favourable developments either in demilitarization or in the delivery of the four pillars of transitional justice; the right to know; the right to justice; the right of victims to reparation; and the right to reform and non-recurrence.
It is noteworthy that the earlier statement by the ‘core group’ at the 39th session calling on Sri Lanka, “to prioritise and drive forward the implementation of resolution 30/1 and 34/1 before the Council next considers Sri Lanka in March,” went unheard. The military while continuing its surveillance operations keeps expanding its civilian activities in the Tamil homeland – running shops, farms, hotels, pre-schools and even organizing carnivals. Shavendra Silva who has allegations of war crimes and genocide against him has been appointed ‘Chief of Staff’ of the Sri Lankan armed forces by the president.
Most disconcerting and disturbing is the discovery of yet more mass graves in Tamil areas – the forensic examination of which in actual fact should be supervised by a UN accredited entity – which is the right thing to do and is not being done. The remains of those who were summarily executed during the war and or extra-judicially killed haven’t been handed over to relatives, while the truth of secret prison camps, known also as death camps or torture chambers where Tamil prisoners were subjected to torture and sexual violence, have not been revealed. The families of those disappeared by the state have still not got answers to the whereabouts of their kith and kin –although the Prime Minister believes they are all dead, but is yet to show proof. As the army continues to occupy public land, those still waiting for their lands to be returned, remain defiant but with no redress – the President has failed to keep his promise to provide a list of the missing and return all lands back to the owners by the end of 2018. The Office of Missing Persons and the Office of Reparations– all limited in scope are not functioning to expectations; the Victims and Witness Protection Act needs review; the draconian ‘Prevention of Terrorism Act’ has not been repealed yet; arbitrary arrests and imprisonment without charge are still being carried out by the Criminal Investigation Department and the Special Task Force, while political prisoners incarcerated under the Act are not released.
The harassment and intimidation of Tamils – of journalists and human rights advocates, students and families remembering the dead and the fear of reprisals against them, the takeover of the resting places of the fallen – are real. State sponsored colonization of the traditional homeland of the Tamils, the erection of Buddhist shrines where there aren’t any Buddhists, the changes in place names and historical sites in the Tamil homeland, lack of translation facilities (for example the ‘Disaster Management Center’ does not post warnings in Tamil), the numerous errors in translation appearing in sign boards – are all symptomatic of Sinhala Buddhist hegemony, leading to the obliteration of the Tamil language, systematic demographic engineering, the distortion of history, the extermination of Tamil culture and the extinction of the Tamil nation, affecting the Tamil people’s right to nationhood.
As of writing, the Northern Provincial Council (NPC) does not exist and the office of the Chief Minister remains unfilled; and although the NPC’s term ended in October of 2018, elections haven’t been called yet and are likely to be postponed indefinitely. There is discontent among Tamils that the newly appointed governor, although Tamil speaking, is a stooge of the president. The promised constitutional reform is at a standstill – Sri Lanka has not got the political will to take the required steps towards achieving a permanent political solution that involves actual power sharing. Tamils believe a referendum would give the Tamil people the chance to democratically express their collective political will. Peace and reconciliation could only realistically happen when fundamental, meaningful, substantial, significant and far reaching changes on a range of issues occur for the Tamil people.
Prime Minister Ranil Wickremasinghe’s proposal to establish a ‘Truth and Reconciliation Commission’ (TRC), which up to now hasn’t got the backing of the president, (and therefore will not go far) is far too premature. And his call to “forgive and forget” is without merit when there has been no admission of guilt or expression of remorse. It is important to note in South Africa the TRC was established not by the persecutors but by the victims at the end of the apartheid era when Blacks won the right to govern themselves and not before. While Sinhala Buddhist supremacist policies prevail in Sri Lanka, a TRC is neither feasible nor viable. It was last year on December 7th that the UN marked the 70th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide. And on this the 10th anniversary of the Mullivaikkaal genocide the need for justice to be done is that much greater.