Refer Sri Lanka to International Criminal Court
Today we have more than a million people (and counting) wanting Sri Lanka to be referred to the International Criminal Court (ICC). That means a million people have now spoken with one voice – a fact that should undoubtedly persuade the UN and members of the Security Council to act decisively – both of whom, according the UN Internal Review Panel’s findings during the final months of the war in Sri Lanka, “failed” Tamil Civilians.
In a major blow to Sri Lanka – both to the current Sirisena and previous Rajapaksa regimes who continue to evade accountability and independent scrutiny at all costs, having been steeped in a culture of impunity and what observers hail to be clearly and unequivocally a strong message – a clarion call for action, addressed to the conscience of the United Nations, and through its auspices in particular to the Security Council, the High Commissioner for Human Rights and the Human Rights Council, it’s now been established that more than a million people (and counting) have added their names to TGTE‘s (Transnational Government of Tamil Eelam) campaign: “urging the United Nation to refer Sri Lanka to the International Criminal Court (or establish a similar credible International Judicial Mechanism) for the investigation and prosecution of war crimes, crimes against humanity and genocide committed against the Tamil people – by the Sri Lankan State.”
In so doing, more than a million people, in a short space of four months, have, identifying with Eelam Tamilsand without reservation delivered an appeal, a plea, a demand, a salvo, a challenge, whichever way you see it, to the UN, one which must be heard, heeded and acted upon. These million people have in other words rejected as unsatisfactory, “any call by the Sri Lankan government for a domestic mechanism or a so called hybrid mechanism to replace any international judicial process,” as the petition states:
“Any call by the Sri Lankan government for a domestic mechanism or a so called hybrid mechanism to replace any international judicial process is an attempt to deflect the call for referral to the ICC and to delay other meaningful actions on accountability. And efforts to establish a domestic Truth and Reconciliation Commission is another diversionary tactic to protect those who committed serious crimes against Tamils.”
The petition invokes Chapter 7 Article 39 of the UN Charter and argues that, “the current situation in Sri Lanka constitutes an ongoing ‘threat to peace’ under the said provision because there has been absolutely no accountability for war crimes, crimes against humanity, and genocide.”
The petition points to the UN Internal Review Report which found “credible estimates” of civilian casualties of 70,000 Tamils during the first six months in 2009 and that, “as the former U.S. Secretary of State Hillary Clinton stated , Sri Lanka is one of the notable countries, along with Bosnia, Burma, the Democratic Republic of the Congo, Sudan and elsewhere, where rape was used as a tactic of war.”
Further the petition provides facts and reasons in support of its call under the following headings:
- The Sri Lankan State is not ethnically neutral
- The Sri Lankan judiciary is not ethnically neutral
- There is no political will in Sri Lanka to provide Justice for Tamils
- The domestic 2010 Lessons Learned and Reconciliation Commission (LLRC) has not delivered Justice to Tamils)
- The Change of Guard in Sri Lanka will not result in a Change of the Institutionalized Impunity
- The Potential Culpability of the New President Sirisena will not be Conducive for a Domestic or Hybrid Mechanism
- Sri Lanka does not have Criminal Provisions for War Crimes, Crimes against Humanity, and Genocide
- The pursuit of Justice Versus the Pursuit of Peace is a False Choice.
The campaign officially launched by the TGTE, outside the UN headquarters in New York on March 15, 2015 with the former US Attorney General Ramsey Clark, Senator of the Transnational Government of Tamil as the first signatory to the petition calling for an ICC referral, has today elicited signatures far in excess of the million signatures initially requested, and well ahead of the September release of the report commissioned by the Office of the of High Commissioner for Human Rights on Sri Lanka (OISL). The campaign formally got underway simultaneously outside the Human Rights Council headquarters in Geneva, as well as in various other cities of the world including a massive online campaign – www.tgte-icc.og – conducted in 15 languages comprising Tamil, Sinhala, English, Russian, Chinese, Malay, Bangla, Urdu, Hindi, French, German, Arabic, Swahili, Turkic and Spanish – that received a huge response, in addition to the collection of signatures on paper!
This campaign has definitely drawn worldwide attention: Without a doubt the many side events featuring leading legal luminaries and academics designed to educate the people on the need for an ICC referral which was thought to be tough to obtain but possible to achieve if enough pressure is put to bear on all concerned – and the ‘Million Signature’ campaign it was felt would provide the impetus.
A side event “Impending High Commissioner’s Report on Sri Lanka: Comparing North Korea & Sudan recommendations for mass atrocities”, was organized by Ibn Sina, with the partnership of Collectif la Paix au Sri Lanka, International Crime Prevention and Protection against Genocide (ICPPG) and the TGTE, at the UN Human Rights Council, Geneva. The key speakers included Geoffrey Robertson QC an International Human Rights Barrister, Professor Ramu Manivannan from the University of Madras, with the session being moderated by Manicka Vasagar Minister of International Affairs TGTE. The Colombo Telegraph carried some key points made by the speakers which are provided here :
“The speakers raised some critical concerns about the Impending High Commissioner’s Report on Sri Lanka. The Panellists were unanimous in raising questions about how the Sri Lankan state can deliver justice, when the government and its leadership itself has been accused of committing war crimes, crimes against humanity and genocide against the Tamils…They also agreed that there is no fundamental change in the political and legal environment in Sri Lanka vis-a-vis the Tamils…Geoffrey Robertson provided searching options of trial against Sri Lanka, such as referral to the ICC, Security Council based initiatives, a hybrid mechanism and even sought an active role of the Secretary General.”
Another Panel about “whether Hybrid Mechanism will work” was also held in Geneva. This experts panel was moderated by Professor Narsinghen Hambyrajen, Former Minister Counsellor of the Trade Division of the Permanent Mission of Mauritius in Geneva and Professor of Law at the University of Mauritius. Panellists included: Richard Rogers, former Head of the Defence Support Team at the Cambodia Khmer Rouge Tribunal and Attorney for Global Diligence and Professor Sornarajah, Visiting Professor at the Centre for Human Rights, London School of Economics.
Some of the highlights from the points made by Mr. Richard Rogers and Prof. Sornarajah can be found here as per the link and produced verbatim for the strong arguments it provides against a domestic or hybrid mechanism :
1) Mr. Rogers dismissed the prospect of a domestic trial, saying that it would likely be the victor’s justice rather than a real accountability process. He further pointed out that the Sri Lankan Government and the Army are too powerful and too closely implicated in the crimes for this to work.
2) He posed the following question: If the High Commissioner recommends the hybrid option to Sri Lankan Government can the UN insist upon procedural guarantees that are sufficient to protect the court from political interference and personal bias? He said the short answer in his view “most probably not.”
3) He spoke of his experience with the hybrid tribunal in Cambodia, the frustrations caused by constant political interference with the process. He believes that there would be similar interference if a hybrid tribunal was to be established in Sri Lanka given the links that potential defendants are likely to have within the political system and within the armed forces.
4) Mr. Rogers also warned of the risk that the hybrid court would get bogged down in years of tedious negotiations between the Government of Sri Lanka and the UN and the UN might eventually give in to the demands of the Sri Lankan Government.
5) He concluded by saying a hybrid court may serve the Sri Lankan Government and even the UN who may then claim that justice has been rendered, but it would remove any meaningful change of real justice being done.
Professor Sornarajah stated that such a hybrid tribunal is unsuitable for Sri Lanka. Besides the fact that international crimes must be tried by international tribunals, the present situation in Sri Lanka is not conducive to the functioning of such a tribunal. He identified the following circumstances:
1) The local judiciary is heavily tainted and is not independent. The Government has removed successive Chief Justices, provoking the International Bar Council to denounce the lack of an independent judiciary in Sri Lanka.
2) The members of the present administration, including the President who was Minister of Defence during the civil war, held office in the administration of former President Rajapaksa. Being complicit, even if not indicted, they are likely to be biased. They would be judges in the cases against them or their associates: Nemoiudex in suacausa.
3) Former President Rajapaksa is bound to be named as defendant for reasons of command responsibility. His two brothers are also likely to be defendants. Rajapakse is able to demonstrate the support he has among Sinhalese chauvinistic groups by holding massive meetings.
4) In that context, the present regime lacks stability to hold a prolonged trial of war criminals. A return to the anti-Tamil climate of the past is likely.
5) In the context of the heavy militarization that has taken place in Sri Lanka, it is unlikely that the armed forces will permit their leaders or personnel being tried by a hybrid tribunal in Sri Lanka. The spurt of militarization took place under Rajapakse. His loyalists still hold office in the forces.
6) The trials, if held in Sri Lanka, will provoke a Sinhalese nationalist backlash making reconciliation impossible. They may result in further violence against Tamils. Reconciliation, which is the aim of such trials, will not eventuate.
A statement by Prime Minister Rudrakumaran entitled “No Will and No Neutrality: Sri Lanka” was distributed to the attendees. The statement had the following key points:
1) An important element in justice is neutrality. When a State itself stands accused as the perpetrator of the international crimes, any involvement of that State in transitional justice vitiates the neutrality. An accused cannot be the sole judge or a co-judge in the legal proceedings against him / her.
2) Last March – 5 years after the first mass atrocity of the 21st century – the UNHRC finally authorized an investigation by the office of the UN High Commissioner for Human Rights (OISL). We have been assured that the report itself will be “strong” and that it undoubtedly will lay out the facts of what took place in significantly greater detail than has been done before. Names of perpetrators may even be released. We believe the report would serve as the basis for fuller investigation and prosecution. What the High Commissioner’s recommendations will include is not yet known, but in the case of North Korea it was recommended last year that the Security Council refer North Korea to the International Criminal Court, even though North Korea is not a signatory to the Rome Statue.
3) Hybrid tribunals can be useful, where a state has a will, but lacks capacity to deliver justice. But that is not case with respect to Sri Lanka.
4) The recent promotion of Army Commander Sarath Fonseka as Field Marshal and the appointment of former Military Commander Mr. Jagath Dias as Ambassador which was heavily criticized by the Human Rights Watch, by the “new” regime in Sri Lanka, and their continued refusal to give access to the OISL to Sri Lanka to meet with the victims of war are just a few examples of a clearly lack of will on the part of Sri Lankan state under the “new” regime to deliver any justice for Tamils.
5) It is true that a hybrid tribunal functioning in an ethnically neutral environment would allow the victims to witness justice in the making. However, in the present case, as implicitly acknowledged by the UNSG’s Panel of Experts, there is no environment in the island of Sri Lanka for Tamils to get justice.
In addition to lawyers, Academics and intellectuals, there were politicians from France and one from Canada, the Ontario Provincial PC Party leader, Patrick Brown and a few well known South Indian Tamil film stars and film directors, producers and Tamil organisations who also gave their support publically. India led the signature count by a wide margin, with Sri Lanka, UK, Malaysia France, Australia, Canada, S’pore, Germany, USA and UAE contributing in that order. The million mark was reached just after at 11.50 am or so Canadian Easter Standard Time on July 13, 2015. The number I am pleased to report is continuing to climb. 
The TGTE Minister for Media and Public Affairs, Suthan Raj, who was primarily responsible for the campaign, pleased with the success attained, has today announced that the first lot of signatures amounting to a million will be formally delivered to the UN and Prime Minister Rudrakumaran will on July 15 be addressing the Tamil people about the continuing campaign.
In an article written by Dr Sarvendra, the author cites four reasons why the campaign has drawn such attention:
1) The timing of the campaign and the nature and text of the appeal itself. The campaign is being conducted at a time when the OISL report together with the modalities for a domestic mechanism is being anticipated and expected to be released in September. In addition the petition clearly attaches the reasons why a domestic mechanism or for that matter a hybrid mechanism won’t help in securing justice.
2) The sheer enormity of the campaign. In comparing this campaign to various campaigns conducted thus far in the Tamil Diaspora, this is the first time to his knowledge a campaign with a goal to secure a million signatures has been initiated. Although there were some doubts at the beginning about the probability of achieving the goal, the campaign has started to gain momentum and at the time of writing has reached the five lack mark.
3) The political movement that has emerged as a result of the emotional attachment that Tamils world over feel towards the struggle for justice of the Eelam Tamil people, brought on by the campaign.
4) The campaign rooted in moral underpinnings serves as an effective instrument in appealing to the international community for justice.
Dr Sarvendra in exploring the gains to be had by the campaign, discusses some of the reservations people have, considering the fact that governments usually look to their self interests and that obtaining justice for Tamils may not be conducive to their interests. Furthermore there are those who feel those countries who are deemed friendly towards Sri Lanka would want to prevent an inquiry by the International Criminal Court.
Dr Sarvendra further enumerates the counter arguments to these reservations that he was able deduce from his conversation with TGTE’s Prime Minister Rudrakumaran who was aware of such self interests but looked at from the humanitarian and moral stand point, felt the appeal, is one that can’t be denied; the fact that it has the strong backing of the people, serves only to strengthen the case for justice. Also according to Rudrakumaran, in the present world order, international civil societies, accepted by people as safeguarding the moral fibre of the world, is increasingly found to have the propensity, in terms of foreign relations, to positively influence governments. In that regard, and in the event a domestic or a hybrid mechanism is established, the TGTE with the strength of the moral and political support generated by this campaign and by enlisting the support of civil societies would continue the fight for justice; adding that the campaign has helped to internationalise the problem more than ever, emotionally uniting the Tamil people throughout the world; that which is vital for its success.
Rudrakumaran’s views on the campaign, Dr Sarvendra felt resonated with the point he had raised in a previous article that the Tamil Diaspora had the wherewithal to prevent their governments from acting against certain moral values – that they wouldn’t allow them to be used for their government’s self interest. This Dr Sarvendra points out illustrates that the TGTE is thinking of how it can positively influence governments.
Finding TGTE’s approach very different from that of the GTF (Global Tamil Forum), Dr Sarvendra points out that the difference can be seen in the manner in which the Tamil Diaspora is now being referred to as the Sri Lankan Diaspora in accordance with GTF’s approach; he also points out that GTF’s approach has generated some opposition and protest from the Tamil Diaspora and that any outcomes from this in political terms, including political fallouts from this will be seen in the months ahead.
Dr Sarvendra concludes that looking at in its entirety, he is convinced, TGTE’s million signature campaign would actually further strengthen the need for an international inquiry against Sri Lanka, considering that as per the belief of some political activists, the pre-mediated and targeted genocidal war conducted by Sri Lanka against the Tamil people must not serve to encourage other oppressive regimes to do the same and that the perpetrators responsible for the genocide committed against the Tamil people during the Rajapaksa regime must be prosecuted and punished accordingly.
A million people and counting want and have validated a call for Sri Lanka to be referred to the ICC and it’s hoped their voices will be heard by the UN…
Refer Sri Lanka to International Criminal Court