While we commemorate the special Remembrance Day for Tamil Eelam, the Mullivaikkal massacre, it is good to note that the genocide reached its culmination point in May 2009. In this paper*, I will touch on possible legal actions against the Sri Lankan Government, and the perpetrators of genocide and crimes against humanity and other abominable crimes. I will focus on the ways and means to seize the International Court of Justice (ICJ) and the International Criminal Court (ICC). However, I will also explore domestic avenues and the principle of extraterritoriality of certain criminal offences (Universal Jurisdiction). I will also harp on the jurisdiction of the United Nations Human Rights Committee. (...) A few years back and recently also, I defended in no uncertain terms the subtle genocide in Palestine, and more overt ones like in Rwanda and East Timor, and the Rohingyas in Myanmar. Obviously, I cannot be complacent of such atrocious massacre and genocide in terms of intensity and magnitude during the present millennium.

(...) Genocide in Sri Lanka and the jurisdiction of the International Criminal Court

In a nutshell, with over two millennia of history, archaeological evidence proves that the Tamil people (Hindu Tamils, Christian Tamils, and Muslim Tamils) have always been indigenous people on the island. Unlike a few, I believe that the Sinhalese also have the right to coexist or to have a separate State. Tamil people have a culturally and linguistically distinct identity. By the very definition of the UN own definition in the conventions on the right of self-determination and genocide, the Tamils do constitute a Nation. Initially the Tamils lived separately in the North and East and the Sinhalese occupied primarily the South. There were two separate Kingdoms. The British colonizers changed history, and they are partly responsible for the actual situation, by capturing and joining the two nations, and ruled them as Ceylon. When the British left in 1948, successive Sinhalese governments have been continuously and intentionally targeting the Tamil nation for annihilation for over seven decades. Numerous pogroms, including extra judicial killing, enforced disappearance, rape, mass murder, grabbing of land, and destruction of property and businesses owned by Tamils were perpetrated. These are historical facts, and nobody can distort history. The intensification of the war started in1983 with the attack on a unit of the army resulting in 13 deaths of soldiers. The manipulation of this event led to riots and retaliation against civil Tamilians, and such deliberate support from the police and the army, and the implication of the official Government caused the violence to flare up in all nooks and corners of Sri Lanka. During what is commonly called Black July Program resulted in the ruthless killing of hundreds of Tamils. The killing of soldiers cannot be a legal justification for mass killing of Tamils with the overt support of Government and the State. The latter, in trite law, is supposed to protect all citizens. They could have attacked the LTTE (Ed., Liberation Tigers of Tamil Eelam) soldiers, but not the civilians. No civilized country is allowed to do so and certainly Sri Lanka was and is still a barbaric state. The Structural genocide switched to full swing genocide as per the definition given by the Geneva Convention on genocide. Article 11 of the Convention describes genocide as a crime committed with the intent to destroy a national, ethnic, racial or religious group in whole or in part. When we look closely at the constitutive elements of the definition and the credible reports from independent experts like Yasmin Sooka, Amnesty International, Human Rights watch, the BBC, Channel 4 etc, there is no doubt that genocide did take place. It is sad to note that the UN and the superpowers, supposedly the guardian and trustees of Democracy, did not do anything to intervene. Francis Harrison, journalist of BBC, qualified such an unprecedented massacre and mass killing as the first one for this new millennium in terms of intensity and swiftness of the barbaric attack by the army. In a span of five months, more than 70,000 civilians were killed, 265,000 displaced as per the report of the UN. A huge humanitarian crisis which the UN indirectly condoned. This operation was supported by the Indian Commanders. Many countries, including the EU, the US, and surprisingly India, aided and abetted on the supposedly fight against terrorism. Though Mandela and ANC used the same modus operandi and tactics, they came out as heroes and champions of Human Rights and anti-apartheid, whilst LTTE and Prabhakaran were branded as terrorists. Even the Red Cross was allegedly leaking information, and the army was using this information to bombard the hospitals. The Army did not respect the No Fire Zone. The Human Rights Council of the UN dared to congratulate the Sri Lankan Government. The timid and low-key resolutions of the UN for accountability and call for penal and civil responsibility fell on deaf ears. Government conducted its own internal bias enquiry and, as expected, exonerated completely the perpetrators of genocide, the political decision makers and the army. Documentary evidence and direct evidence from eyewitnesses can prove the contrary. The documentary ”No Fire Zone” or the book of Francis Harrison, “Still counting the dead”, with detailed account of killings and summary execution, are here to substantiate the case of genocide and Crimes against humanity. The surrendered members of the LTTE were summarily executed and this amounted to blatant breach of the Geneva convention on Humanitarian law.

«The very fact that Sri Lanka did not ratify the geneva convention is proof of the pudding that the latter had the clear intent to perpetrate torture, crimes against humanity, and genocide eventually.»

The UN panel advisory panel set up by UN secretary General, Ban Ki Moon, comprising Marzuka Darusman (Indonesia), Steven Ratner and Yasmin Sooka (South Africa), gave a damning report against Sri Lanka. The panel found credible allegations, which, if proven, would indicate a wide range of serious violations of international humanitarian and international human rights law by both the government of Sri Lanka and LTTE. The latter has become defunct, and therefore cannot be held responsible as a group. The army and some members of the previous Government, and some who are still present, must be made accountable. Anyway, the LTTE and the Sri Lankan army cannot be placed on the same footing. The evidence obtained by the panel revealed a very different version of the final stages of the war than the narrative of the Sri Lankan government. They asserted in no uncertain terms that the Sri Lankan Army/Government killed civilians through widespread shelling, including shelling of hospitals and humanitarian objects. They denied humanitarian assistance and violated the human rights of LTTE combatants and oppressed even the media.

Seizing the International Criminal Court: Way forward, strategies and obstacles.

The very fact that Sri Lanka did not ratify the Geneva convention is proof of the pudding that the latter had the clear intent to perpetrate torture, crimes against humanity, and genocide eventually. While it is true that Sri Lanka has not ratified the Rome Convention on the International Criminal Court, it has nevertheless ratified the conventions on war crimes, Geneva I and II. There is ample evidence to take them to task for war crimes. One possible way to circumvent the lack of jurisdiction is to demonstrate the war crime which has started in Sri Lanka, but continues in the UK or France even today. Crimes against humanity in the form of abduction, unlawful detention and torture, and the deprivation of the right of return and continuous persecution continued in these foreign countries and domestic courts on the right to asylum has confirmed this. Once in the UK or France, the victimisation perdures from the consequences of war crimes or crimes against humanity. So, in a way, these crimes that have been partly committed in the UK or France could be a way out to seize the prosecutor of the ICC, which could eventually trigger an investigation. A submission has been filed on that line by Global Rights Compliance on behalf of 200 Tamil victims under article 15 of the Rome statute. It stipulates “to investigate on the basis of information of crimes within the jurisdiction of the Court”. Here, one possible interpretation is that obliquely through the UK, Sri Lanka comes within the jurisdiction of the Court. So, people in Government and army people like Gotabaya Rajapaksa, defence secretary Kamal Gunaratne and former army commander Jagath Jayarsuriya, may be taken to task.

Interestingly, the ICC opened an enquiry on the crimes against humanity which occurred in Myanmar, but which continued in Bangladesh. The latter is a party state of the Rome convention while Myanmar is not. So, there is still some little hope for Tamils in Sri Lanka or through a proxy State to do the same.

Recourse to the International Court of Justice (“ICJ”)

Politics at the level of the security council will not allow referral to the ICJ. Likewise, the General Assembly may not be willing to pass a resolution to get an advisory opinion from the ICJ. In Mauritius, after a tedious and long battle for more than 30 years, we have been able to get an advisory opinion against the United Kingdom at the level of the ICJ. In principle one needs the consent of the other State to refer the matter to the ICJ. It is obvious that Sri Lanka will never give its consent. Will it be possible to garner enough support to have a referral to seize the international court of Justice? If yes, then the question is whether an advisory opinion will do justice to the victims and to the Tamils? Another alternative is to get a country to enter a case against Sri Lanka. This is happening in the case of the Rohingyas. They were fortunate to get a country, namely Gambia, to file a case against Myanmar. On 22^nd July 2022, the ICJ declared that it has jurisdiction to hear an application filed by Gambia in 2019. It takes time, and it can be a very tedious journey. Gambia could afford to do so with the support of the International Islamic Organization. It is unlikely for Tamils in Sri Lanka to get the same equivalent support. India should have taken the lead. Unfortunately, its geopolitical strategies have prevented it to support the victims of genocide.

Other Avenues: The Human Rights committee and Universal jurisdiction principle

The UN human Rights Committee has jurisdiction to try cases regarding breach of Human Rights. However, it is important to gather well documented evidence and credible witnesses. Doing this is not always easy. Some victims are apprehensive to come in the open, as some of their relatives are still in Sri Lanka. The quality of lawyers is also important to win a case. Bosnia retained the services of Boyles, and the Transnational Government of Tamil Eelam retained the services of Geoffrey Robertson. The TGTE initiated a case on behalf of an ex member of the LTTE. There was a unanimous verdict of 17 judges against Sri Lanka. The case was entered on behalf of a former LTTE soldier who was tortured in the hands of the Sri Lankan State. This was possible under the International Covenant on Civil and Political Rights (ICCPR).

There is also the possibility to seize Domestic courts. Some countries, like Argentina, Spain etc., have such jurisdiction. (...) It would be important for Sri Lankan Tamils to pursue such a path, especially as in many jurisdictions there is no time-bar.

On a concluding note, I would make a special appeal for unity within the various factions of the Tamil Sri Lankan diaspora in the world. At this stage, you all have a tryst with destiny to garner all forces to claim justice. We need to bring together the best legal minds, like Francis Boyles and Geoffrey Robertson, and lawyers from the diaspora. I will be ready to contribute modestly on a pro bono basis, like I would be willing to do the same for Palestine and Myanmar, etc. While it is true that the superpowers condoned genocide and war crimes, the Eelam Tamils must lobby the governments of the UK, the US, Norway, France, Canada, where there is significant number of Sri Lankan Tamils to impose international accountability for criminal sanctions and civil reparations against the government of Sri Lanka and the perpetrators of genocide. Now that Stalin, the charismatic Chief Minister of Tamil Nadu, is in power, there is hope that Mother India will join forces for true justice in the teeth of the collapse of internal mechanisms for justice. The government of Sri Lanka has been taking the world for a ride, including the Sinhalese people with the dramatic collapse of the economy. Many governments use the principle of “Divide and Rule”. Citizens must be careful with management of public opinion and bluffs, and even in our small country, namely Mauritius, it is becoming the trend.

As far as I am concerned, it is a battle for human rights, humanitarian law, and human dignity and compliance with international law and rule of law.

(*paper presented last week in London to honour the memory of the Tamil victims in the massacres of Sri Lanka between 1983 and 2009)