By S. V. Kirubaharan –
Robert Jackson, the Chief Prosecutor at the Nuremburg Tribunal in his opening speech said: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils ….”
Soon after the report of the OISL is published, it should be followed by an International trial of those who bear the principal responsibility for the war crimes against the Tamil people. Tamils should remain unsentimental in demanding justice as set out in the preamble of the Rome Statute 1998.
The terminologies ‘inquiry’ and ‘investigation’ can be confusing to many people, presumably to those in the legal field too. Therefore let us analyse both.
The word ‘inquiry’ originated in Latin and French. In Latin we have “in” (into) and “quaerere” (detect/ look at/see or demand/ask). In French, ‘inquire’ ‘enquerre’ means ‘to ask/demand’. An ‘inquiry’ is a path to seek truth and knowledge and ‘query’ means information is needed to settle a doubt. Inquiry involves research and evidence, while a ‘query’ simply asks a question. The purpose of a formal or systematic inquiry is to find the truth and examine the facts of an alleged incident or incidents. If the respondent (defendant) in a case refuses to accept the findings or the outcomes of the inquiry, then an investigation will be initiated.
‘Investigation’ also originates from Latin: ‘investigatus’, ‘investigare’, meaning ‘to trace or to track’, from ‘vestigium’ which means a footprint. An investigation is a detailed process throwing light on an incident or incidents, considering or examining available elements to uncover facts regarding the incident. An investigation is always based on a complaint, for instance made by the ‘plaintiff’.
‘Inquiry’ and ‘investigation’ are sometimes used instead of each other, ignoring their classic differences. However, it depends on what is being dealt with. There are occasions when both are used. In other words, inquiry involves investigation and investigation involves inquiry.
Therefore, before we speak or discuss these two terminologies in relation to a legal framework, we are obliged to consider the ‘cause of action’. Obviously it could end up in a lawsuit, where investigation is a must. Lawsuits take place in a court room before a Judge or Judges.
I am writing about these two words because some confusion has been created very recently among some diaspora media. Misuse of these terminologies will certainly be counterproductive for the real victims. I say real victims because not all are victims.
Now, the conclusion is that the Tamil language holds the meaning of both terms in only one word – ‘Veesaranai (விசாரணை). However, even in the Tamil language these terms have a cause of action – (Valaaghu – வழக்கு). With my limited spoken Singhalese, I cannot say anything about the translation of these two terms into the Singhalese language.
I hope these terminologies will not be twisted or misinterpreted for anyone’s self-interest or to satisfy their new friends among the government. It is obvious that some among the diaspora, who became involved very recently in the Tamil cause, are involved purely for their own benefit and glorification. Their activities are not carried out in a manner that promotes the collective interest of the people, nor do they aim for the common good of the people.
‘Standard of proof’ reads as follows:
Consistent with the practice of other United Nations fact-finding bodies, the OISL will base its findings on a “reasonable grounds to believe” standard of proof. There are reasonable grounds to believe that an incident or pattern of violations or crimes occurred if the OISL has obtained a reliable body of information, consistent with other information, indicating their occurrence. This standard of proof may be sufficiently high to call for judicial investigations into violations of international humanitarian and human rights law and international crimes.
With regard to assessing information that identifies alleged individuals to have been involved in the violations, the OISL will comply with the standards that require a reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime. The OISL will not make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects that may pave the way for future criminal investigations.
When we consider the imminent report of the OISL on Sri Lanka, we need to be aware that the victims, human rights defenders, and peace-loving citizens are anxiously waiting to see it published – at least in September, in the 30th session of the UN Human Rights Council – UN HRC.
Last January, soon after the new President was elected in Sri Lanka, the new regime used all their influence in the international arena and successfully postponed the OISL report, which was due out last March in the 28th session of the UN HRC.
It is obvious that the Sri Lankan government, especially the Minister of External Affairs of Sri Lanka, Mangala Samaraweera is using all his influence once more to further delay this report. Many tactics locally and internationally are being used in this endeavour.
1 – The 47 members of the UN HRC are being lobbied. They explain that they are building up a reliable local investigation. In order to do this, many sources connected to the Sri Lankan government are influencing the USA.
2 – They are demanding a visit of the UN High Commissioner for Human Rights before September, for the obvious reason of getting his endorsement that the local mechanism is in place and moving in the right direction.
3 – They are trying to give a picture to the international community that they are working very closely with the Tamil diaspora, who worked day and night to submit substantial and detailed evidence to the OISL.
4 – Regarding this matter, Sri Lankan External Minister Samaraweera is informing foreign governments that the Tamil diaspora will endorse a local investigation. South Africa, Switzerland and Erik Solheim of Norway are being used to promote this. In fact, all three know only a very little about the feeling of the diaspora community. The influential diaspora organizations have no deal with either Mangala Samaraweera or with the Sri Lankan government.
5 – To achieve their goal with the Tamil diaspora, they are using the influence of the Tamil National Alliance – TNA, which is an elected Tamil party in the North and East.
6 – The Sri Lankan government has repeatedly announced that they will review the ban put in place by Rajapaksa’s regime, with a view to lifting the banning on 424 individuals and 15 Tamil diaspora organizations. The secret plan behind the review of this diaspora list is to remove the names of the people who are working closely with them and to insert some new names to this list.
Concerning gross violations, the present External Minister, Mangala Samaraweera of Sri Lanka is no different to the ex-President Mahinda Rajapaksa. Since 1994, he has held different ministerial portfolios (Ports, Aviation and Media, External Affairs), and all the while he supported the infliction of horrendous damage to the people in the North and East and also to the diaspora. His past record cannot be understood by some who currently enjoy a honey- moon period with him. Those who became involved in the Tamil cause very recently have no real understanding or respect for the bloody history and the terrible suffering of the people.
During the period when Samaraweera was the Minister of Media and External Affairs, his reaction to the following serious atrocities was gruesome: the economy embargo to Tamil areas; the rape and murder of Krishanthy Coomaraswamy; the cold murder of Kumar Ponnamblam in broad day light in the capital Colombo; the bombing of Navaly Church in which 125 innocent civilians killed, the Chemmani mass graves where more than 700 disappeared Tamils were buried, the massacre of five students in Trincomalee, the massacre of 17 NGO workers of the French, Action Contre la Faim – ACF in Muttur; the killing of Journalists in the North and East and also many other killing of innocent people in Amparai, Batticaloa, Tincomalee, Mannar and Vavuniya.
If anyone is interested to know about Samaraweera’s reaction to these atrocities, they should go through his statements made at press meetings, which are on the record. Such a hypocrite has once again become the Minister of External Affairs with a different regime, pretending to be as clean as a new penny? Unfortunately Dr. Jayalath Jeyawardena of UNP is not with us today to relate more true stories about Mangala Samaraweera.
It is bizarre that once again Erik Solheim has become involved in anything that concerns Tamils! Many Tamils see Solheim as one of the people who cleverly, if unwittingly, damaged the Tamil struggle. Even his twitter message after his recent meeting with HCHR Zeid Ra’ad Al Hussein is considered to be an action, to alert the Sri Lankan government of impending danger. Many see his twitter message as unwanted and as having a hidden agenda.
To use the correct term, presently the Sri Lankan government is dealing with Machiavellian individuals among the diaspora, whereas diaspora organisations which enjoy a huge support among the people are silent. This is due to a particular and understandable factor which distinguishes them. These organisations will not so easily trust anyone from the Sri Lankan government. They are in favour of initiatives begun and carried through to conclusion by the international community in an open and transparent manner.
Their long experience of denial of justice, reprisals, assassinations of witnesses, journalists, human rights defenders and others, are deeply engrained in their memories and their hearts. In short, they are not easily fooled.
One cannot ignore the lack of political will of any of the past successive governments and the general opposition from the South to anything concerning accountability and reconciliation in Sri Lanka.