Genocide, a political discretion?

GENOCIDE, A POLITICAL DISCRETION? WRITTEN BY NAGENDRAM BRAVEEN

I lived as best I could, and then I died. Be careful where you step: the grave is wide. Epitaph for a Palestinian Child of the Nakba ("Catastrophe") BY MICHAEL R. BURCH

Genocide - The necessity to define. On the ashes of WWII the world had the moral duty to become conscious of the extent to which human violence and hatred went, so far as committing to eradicate the Jews. Despite the macabre events being so clear to the eyes, no words could fulfil the description of the ferocious crimes committed. The horror and cruelty of inhumane acts, such as the Holocaust, cannot and must not repeat in the future. For this reason Raphael Lemkin, a Polish jurist of the Jewish origin, had the necessity to describe such violence in a univocal and exhaustive term. Thus, Lemkin‟s neologism -“Genocide” formed, by the fusion of the greek word ghenòs (race, genre) and the latin word caedo (to kill). The neologism was not sufficient; a neo legis had to be legislated to punish the perpetrators of genocide. It was in the same spirit that the General Assembly of the United Nation declared in December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide1. Nevertheless, the definition did not stop the dejavù of the genocide throughout the years. Despite more and more crimes being committed with the scheme and exact manner as in the definition of “Genocide”, the UN fails to recognise them. Why? Are these crimes jurisdictionally not eligible to be considered as genocide? Or, is there a political discretion for these bodies to decide whether these crimes can be considered as genocide?

Eelam Tamils and the structural genocide. Since 1948 the Eelam Tamil nation is being subjected to discrimination and state sponsored violence. In the name of independence the British unleashed their creation “Ceylon”, a unitary state structure, denying the pre-colonial condition of equity among the nations in the island. By suffocating the democratic aspirations of the Eelam Tamils, the British left the island imposing a majoritarianism system where the Mahavamsa ideology was institutionalised.

The Mahavamsa (The Great Chronicle), is considered an important book of the Thevarada Buddhism. In this book it is written that the arrival of Prince Vijaya to the island of Ceylon glorified the island and encouraged the renewed belief that Ceylon has a special Buddhist destiny. The Mahavamsa's legends about the ancient heroes and kings encouraged a feeling among the Sinhala Buddhists that “to be truly Sri Lankan was to be a Sinhalese and to be true Sinhalese was to be a Buddhist”2, which led further belief that Tamils, Muslims and Sinhala Christians could not be included. This ideology and mythical history completely ignores the existence of other nations and peoples in the island. Although it is the Sinhala community that follows this philosophy, it is interesting to note that the British had played their part to instil and diffuse the Mahavamsa ideology during their colonial period. Lawrence J Swie noted this when discussing about the root cause of the conflict: “It was the British who made the Mahavamsa a widely distributed work, publishing an English translation of the first part of the Mahavamsa in 1837. The British governor also commissioned the Sinhalese translation of the original and its updates.”3 He further goes on to state that: “The greatest importance of the Mahavamsa is not as history but as a symbol - and as a motivating force behind Sinhala Nationalism. A Sinhalese politician speaking in public is likely to mention incidents from Mahavamsa as evidence of the long and distinguished history the Sinhalese have in Sri Lanka. But Sinhalese political and religious leaders also use Mahavamsa stories as evidence that the whole island should be ruled by Sinhalese Buddhists.” The identity of the Eelam Tamil nation was undermined by the imposition of the „Sri Lankan‟ identity. Sri Lanka, which means „holy island‟ in the Sinhala language itself is a jurisdictional mirror reflection of the Mahavamsa ideology. Coming back to Lemkin, in his book “Axis Rule in Occupied Europe”, he affirms that: “Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and colonization of the area by the oppressor's own nationals.”4 Since the independence the Eelam Tamils had seen the pillars of the nation and their identity being destroyed by the state of Sri Lanka. In 1956 the “Sinhala Only Act” denied the Tamil language, in 1981 the Jaffna library was burnt destroying the cultural heritage of the Eelam Tamils, colonisation and militarisation in the north-east attempt to shatter the territorial integrity of the Eelam Tamils‟ homeland. All of this accompanied with pogroms, abductions, torture, sexual abuses and murders. It is clear how the genocidal pattern is braided in with the history of the state of Sri Lanka. The slow protracted genocide proceeds with the intent to wipe out the fundamentals of the existence of the Eelam Tamil nation in various aspects and forms.

All these crimes are committed to target the Eelam Tamil nation. It is crystalline and obvious, even for an outsider, that the Tamil nation represents the victim of this genocide, furthermore it is impossible to not identify the perpetrator of these crimes as the state structure. „Structural violence‟, a term introduced by Johan Galtun in 1969 in his research paper “Violence, Peace and Peace Research”, defines the form of violence where a social structure or institution harm people by preventing them from meeting their basic needs5. This violence can be of different forms and could also degenerate into genocide. Whilst the UN definition of genocide has a pivotal point in defining the victims, i.e. “a national, ethnical, racial or religious group”, the structural violence definition focuses mainly on the aspects of the perpetrator. Although in the case of the Eelam Tamil nation the genocidal acts are perpetrated by successive governments since 1948, the mechanism that allows and pushes the perpetration of these crimes is the state structure of Sri Lanka itself. The unitary and majoritarianism state incorporating the Mahavamsa ideology, gives carte blanche, legitimisation and means to the governments to perpetrate the genocide of the Eelam Tamils - the structural genocide. Unless we look at the problem from a broader view, not limiting our focus to specific events, individuals or governments, and recognise the modus operandi of the genocide as the unitary state structure, the Eelam Tamil nation will continue to be wiped out.

Calls to recognise the Genocide. The United Nations‟ Human Rights Council requested in March 2014 the Office of the High Commissioner for Human Rights (OHCHR) to investigate on the allegations of human rights violations and related crimes in Sri Lanka, from Febraury 2002 until November 2011. The submission of the report is subjected to a lobby campaign by the new elected Sirisena‟s government, intended to delay it. Furthermore, they attempt to restrict the investigations to a domestic one to be conducted by the government itself. Sirisena, as he already said in his campaigning elections, will implement the Lessons Learnt and Reconciliation Commission‟s (LLRC) recommendations. Appointed by the Mahinda Rajapakse‟s government as a domestic investigation in defence to the international community‟s pressure on the allegation of human rights violations during the last phase of the conflict, the LLRC does not give impartial and truthful accountability and its recommendations are seen as a blueprint of the structural and protracted genocide on the Tamil nation. Recently the Northern Provincial Council (NPC) approved unanimously a resolution called “Sri Lanka‟s Genocide Against Tamil”. “This resolution provides an overview of the evidence demonstrating successive Sri Lankan governments’ genocide against Tamils, and respectfully requests the ongoing United Nations Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL) to investigate the

claim of genocide and recommend appropriate investigations and prosecutions by the International Criminal Court ”6. This resolution is not only a reaction to the new regime‟s attempts to delay and diminish the submission of the OISL report, but it is also an exhortation to the OISL to analyse the human rights violations with the correct perspective. The NPC‟s resolution was welcomed by the various Tamil political and other grassroots representatives in the homeland, making this a possible starting point for a formation of a political force that is committed, and faithful to the Tamil people‟s political aspirations. With this resolution the NPC joins its voice with the grassroots Tamil activists in the homeland and the Diaspora to denounce loud the genocide of the Tamil nation. A call-out that cannot be ignored any further by the International Community.

International Actors as Stakeholders. The request of the Tamils to investigate the crime of genocide was not ignored by everyone. The Peoples‟ Permanent Tribunal (PPT), an international independent tribunal that examines and provides judgements on violations of human rights, investigated on the allegations of genocide in Sri Lanka. In the verdict released in January 2014, “the Tribunal reached the consensus ruling that the state of Sri Lanka is guilty of the crime of genocide against Eelam Tamils and that the consequences of the genocide continue to the present day with ongoing acts of genocide against Eelam Tamils.”7 Furthermore, the PPT found UK and US as complicit in the genocide by abetting the state of Sri Lanka. It was stated that the complicity of India in the genocide has to be further investigated, with China‟s involvement. Moreover, a research document by Phil Miller, “Britain’s Dirty War against the Tamil people (1979-2009)”8, examines the responsibility of Britain in the structural genocide of the state of Sri Lanka. The European Union and Japan, that were co-chairs in the peace process, have responsibilities over the Tamil national question. The EU, who banned the LTTE, is responsible for forcibly creating an imbalance between the two nations‟ representatives and collapsing the peace talks. Recently the EU court annulled the ban, stating that: “Those arguments, combined with the lack of any reference in the grounds for the contested regulations to decisions of competent authorities which are more recent than the imputed acts and referring to such acts, clearly show that the Council based the contested regulations not on assessments contained in the decisions of competent authorities, but on information which it derived from the press and the internet.”9 Referring to the failure to apply the correct procedural process of the EU Council before reaching the decision on the ban, the Court exposed the irresponsible attitude of the EU in carrying out a genuine peace process. Instead there is a consensus on the political aspects of an anti-LTTE policy that could have led to the ban to delegitimise the struggle of the Tamils.

In March 2011, a Panel of Experts (PoE) appointed by the Secretary-General of the United Nation, released a report on accountability in Sri Lanka. In this report the PoE charged the Government of Sri Lanka of several allegations and violations. But in particularly it exposed the intention of the Government to inflict conditions of life to bring about the destruction of the population in the North-East. “[..] conditions imposed on civilians in the final months in the NFZs [No Fire Zone] were calculated to bring about the destruction of a significant part of the civilian population.”10 A posteriori one of the member of the PoE, Yasmin Sooka, declared in an interview that: “I do think that when the inquiry takes place they will need to probe this question because many Tamils have often spoken about the fact that this is a genocide, and that it has genocidal tendencies - the way in which this war prosecuted.”11 And further continues to say: "I think all of us in the Panel that were confronted with this question have always raised that there is a real need for a proper investigation when it happens to test this issue [Genocide]”.11 In November 2012, an internal review panel on „United Nations Action in Sri Lanka‟ was appointed by the Secretary-General of the UN. In this review the panel considered again the intention of the Government of Sri Lanka in targeting the Tamils: “The report documented allegations including: the intentional shelling of civilians; the intentional shelling of hospitals; the intentional shelling of humanitarian operations; the intentional shooting of civilians; the intentional infliction of suffering on civilians.”12 Furthermore the internal review panel exposed, in a mea culpa, “The UN’s failure to adequately respond to events like those that occurred in Sri Lanka should not happen again. When confronted by similar situations, the UN must be able to meet a much higher standard in fulfilling its protection and humanitarian responsibilities”12, recognising the UN‟s failure in the doctrine of the Responsibility to Protect (R2P) when it came to the massacre of the Tamils.

Conclusions. Analysing the cause of the genocide in the case of Eelam Tamils, and realising the failure of the International Community to act genuinely and on time has led us to reflect back to the question of whether the crime of genocide is a jurisdictional problem or something that is not applied because of the political discretion the international bodies hold.

The Convention on the Prevention and Punishment of the Crime of Genocide is present, however there seems to be an issue with the UN recognising and applying it in the case of Eelam Tamils. There is an intentional denial among the international actors and the Sinhala community to include the crime of genocide in the legal framework of any proposal to seek accountability and justice. The united voices of the homeland and diaspora of the Eelam Tamil nation calling to recognise the ongoing structural genocide committed by the Sri Lanka state, must not be passed unheard. The UN and the international actors should act responsible in the case of the Eelam Tamils‟ struggle, being conscious of their failure and acting towards recognising the crime of genocide. In order to do this it is necessary for the UN to extend the time frame of the OISL from 1948 to present, as exhorted by the NPC‟s resolution and the diaspora. And consequently, it is a must to extend the legal framework to not just International Humanitarian Law (IHL) but also to International Human Rights Law (IHRL), including the Convention on Genocide. The international actors should stop exploiting the Tamils‟ national struggle, acting based on their political and economic interests and start to revive the spirit behind the creation of the Convention on Genocide. It is in their responsibility to stop the ongoing structural genocide and find a genuine accountability process. It is not rightful to request the Eelam Tamils to give up on their fundamental rights and political aspirations, preventing them from living with dignity as a nation.

Notes: 1. Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948: https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021English.pdf 2. R.Shanmuganathan, Root Cause of the Conflict: The 'Mahavamsa Mindset'. http://www.sangam.org/taraki/articles/2005/1219_Root_Cause_of_the_Conflict_The_Mahavamsa_Mindset.php?print=sangam 3. Lawrence J Swie, “Sri Lanka: War-Torn Island”, published as part of a “World in Conflict” series. 4. Raphael Lemkin, in “Axis Rule in occupied Europe”, Chapter IX: Genocide - A New Term and A New Conception For Destruction of Nation, 1944. 5. Johan Galtung, in “Violence, Peace, and Peace Research”, Journal of Peace Research, Vol. 6, No. 3 (1969), pp. 167-191, http://www.jstor.org/discover/10.2307/422690?sid=21105857803723&uid=3738296 &uid=2&uid=4 6. Resolution of the Northern Provincial Council, “Sri lanka’s Genocide Against Tamil”, 10 Febraury 2015.

http://www.tamilnet.com/img/publish/2015/02/NPC_Resolution_on_Tamil_Genocide _v2.pdf 7. People‟s Permanent Tribunal, “Peoples’ Tribunal on Sri Lanka”, 2014. http://www.internazionaleleliobasso.it/wp-content/uploads/2014/01/Sentenza-SriLanka-and-Tamil-II.pdf 8. Phil Miler, “Britain’s Dirty War against the Tamil people (1979-2009)”. 9. Court of Justice of the European Union, Joined Cases T-208/11 and T-508/11, http://www.tamilnet.com/img/publish/2014/10/LTTE-Ban-Verdict.pdf 10. Report of the Secretary-General‟s panel of Experts on accountability in Sri Lanka. http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf 11. Yasmin Sooka in an interview with http://www.tamilguardian.com/article.asp?articleid=11198

the

Tamilguardian,

12. Report of the secretary-general‟s internal review panel on “United Nations in Sri Lanka”, November 2012. http://www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_o n_Sri_Lanka.pdf