There are five basic conditions towards realization of transitional justice. First, revelation and acknowledgement of TRUTH. Secondly, accountability of the perpetuators of the mass crimes and crimes against humanity. Thirdly, ground for reconciliation could be explored by establishing the conditions for addressing issues like reform of the institutions and assurance of the non-recurrence of what happened in the past. Lastly, reparation and compensation cannot be treated as monetary allowance or as part of so called rehabilitation of the victims without rights and scope for political resolution of the conflict.
The successive Sri Lankan governments have neither acknowledged nor expressed any remorse until this day for the large-scale atrocities committed against the Tamils of Sri Lanka which include international crimes such as genocide, war crimes and crimes against humanity. Several of these crimes are related to violations of social, economic and cultural rights. According to Article 26 of ICCPR, the requirement of non-discrimination in fact imposes on states four separate obligations with guarantee of equality before law and effective protection against discrimination as core commitments. There is no acknowledgement of TRUTH yet in Sri Lanka of the genocide, war crimes and crimes against humanity committed by the Sri Lankan government and its authorities against the ethnic Tamils.
In relation to the question of accountability, since 1956 no action has ever been taken with any commission that had been constituted to look into violence or mass crimes against ethnic Tamils of Sri Lanka. This long list includes:
- The Sansoni Commission-1977
- Presidential Truth Commission on Ethnic Violence-1984
- MSF Vehicle attack -1991
- Kokkadicholai Commission of Inquiry
- 1991-93 Presidential Commissions
- President Wijetunga Appointed Commission-1993
- Commission into Disappearances-1994
- Batalanda Commission-1995
- All-Island Disapperances Commission-1998
- Presidential Truth Commission on Ethnic Violence -2001
- Bindunuwewa Commission -2001
- International Independent Group of Eminent Persons – 2006
- Lessons Learnt & Reconciliation Commission-2011
The main actors of the present Sri Lankan government, including the President Mathiripala Sirisena who acted as the Minister in Charge of Defence during the most brutal final fortnight of the war which includes the gruesome Mullivaikkal Massacres and the White Flag incidents, are defectors from the Mahinda Rajapaksa’s government. His admission includes that“prior to the final phase of the war he had acted as the Minister of Defence five times during the height of war.” Why should there be any surprise or twist of politics when the President Mathripala Sirisena says that he is opposed to international investigations into allegations of war crimes and crimes against humanity during the final phases of the brutal war. The shocking disclosure is the attempt of a few countries to trade rights for politics with deliberate neglect of the fact that the State in Sri Lanka is not only a supreme Sinhala political organization but also the cultural war-head of the majority Sinhala community. Mathripala Sirisena is on record to observe that “I will not allow President Rajapaksa or the security forces to be hauled before an international war crimes court.” This statement was made by him during the campaign and he continues to maintain the same position in consistent with the genocidal policies of the successive Sri Lankan governments towards Tamils since 1948.
The Sri Lankan government’s call for a domestic mechanism and the strategic bargain with Sri Lanka should be evaluated against its own background of discriminatory policies and denial of justice for the Tamils for over six decades. The moral crisis of Sri Lankan polity is inextricably linked to the dominant discourse of Sinhala nationalism. Neither Maithripala Sirisena is a beacon of hope nor Mahinda Rajapaksa is politically dead with the resurgence of Sinhala nationalism since his sudden exit from power. It is therefore unjust to trade rights for politics as well as assume that the change of regime can provide the solution to ethnic crisis in Sri Lanka.
The essential driving forces of Sinhala nationalism are race and violence. There is a social vitality to the recognition of Tamils as a distinct group. Tamils have been affected by the socio-economic and political discrimination and oppressive policies of the Sri Lankan government for long. Genocide of Tamils in Sri Lanka has taken place within a social paradigm which not only destroys the victims but also first humiliates them by deliberately inflicting a ‘complete loss of freedom and control over one’s body and other vital interests’.
There is good evidence to suggest that the Sri Lankan government and military held a systemic approach to rape as an instrument of power and control of the dominant over hapless Tamils. We may note here that the Fourth Geneva Convention of 1949 states that “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” The International Committee of the Red Cross (ICRC) considers rape to be among the serious breaches specified by that convention. In 1995 Justice Richard Goldstone, Prosecutor for the International Criminal Tribunal for the Former Yogoslavia(ICTY), affirmed that rape can constitute torture. The ICTY at the Hague and International Criminal Tribunal for Rwanda (ICTR) at Arusha explicitly include rape among crimes against humanity. The systematic rape of Tamil women by the Sri Lankan military had a cultural intent of humiliating and keeping the Tamil community in virtual condition of fear and helplessness. The rape has become an instrument of oppression, discrimination and cultural prejudice against Tamils, carried out at great ease along with the mass killings of civilians. These are the factors that determine the nature of this conflict in Sri Lanka assuming the proposition of genocide of ethnic Tamils in Sri Lanka.
Given the large presence of Sinhala military in the North & East of Sri Lanka even after the military conflict, a simple question is how can we expect a Sinhala soldier to protect a Tami women when the entire political, military and executive leadership had shown scant regard towards the rights and dignity of Tamil women in Sri Lanka. The status of Tamil women in Sri Lanka combines all the categories (of persons/women/racial/ethnic/religious minority) to draw attention of the international community and the United Nations. The process of reconciliation begins with acknowledgement of TRUTH. The disappearance of 150,000 Tamil civilians has neither been acknowledged by the LLRC nor the Sri Lankan government has shown any interest about the people who had disappeared. Impunity has been the rule of Sri Lankan government’s response towards its own actions and atrocities committed against the Tamils rather than an exception. Impunity has been institutionalized for long and the intermittent transitions like regime changes cannot be mistaken as political transformation in an environment of Sinhala dominated ethno-nationalism with a recorded history of discrimination of minority ethnic Tamils.
Given the complete absence of accountability for genocide, war crimes and crimes against humanity committed by the Sri Lankan government and its military authorities, the present situation in Sri Lanka constitutes an ongoing “threat to peace” under Chapter 7 Article 39 of the UN Charter. The history of acts of the Mahinda Rajapaksa’s government as well as the attempts of new government under Mathiripala Sirisena in punishing witnesses and denying access of the witnesses to the OHCHR’s investigation of Sri Lanka(OSIL) raises concerns about the lack of environment for the protection of witness than the passage of Witness Protection laws as on 20 February, 2015.
The nature of the State and the socio-political environment in Sri Lanka cannot be set aside in our assessment of the political transitions that take place as an outcome of electoral politics in the Sinhala polity. It is therefore necessary for us to advocate that the genocide, war crimes, crimes committed against humanity by the Sri Lankan government and its authorities (agencies) on grounds of ethnic discrimination of Tamils should be referred to the ICC for investigation and prosecution.
In many ways, the UN Human Rights Council initiative of March 2012 in asking Sri Lankan government to address the issues of accountability is the opening of the road to justice for Tamils in Sri Lanka. The Geneva process cannot be set aside for trade and geo-strategic bargains of the influential powers in the world in the name of renewed opportunity for hope because of regime change and tacit agreements. The United Nations has a long-standing policy of opposing even peace agreements that include amnesties for genocide, war crimes and crimes against humanity, gross violations of human rights, or serious violations of international humanitarian laws.
The Geneva process should be followed and respected along with its logical course of a recommendation by the UN Human Rights Council that United Nations General Assembly set up an International Criminal Tribunal as a subsidiary organ under Article 22 of the UN Charter. The international process cannot be subordinated to the parasitic worldview of “Sinhala Only” which tolerates neither democratic dissent from within nor genuine critique from outside including the United Nations and the global community of nations. If world governments led by influential powers see light in the regime change in Sri Lanka, then darkness of injustice in Sri Lanka cannot be eliminated by abandoning the well meaning international process for domestic investigations. Let us ponder over the implications of this moral dilemma and move forward with a recommendation for referral to the ICC.
( The above is based on the speech delivered by the author in a side event at 29 Session of the UN Human Rights Council in Geneva. 16 June 2015. Professor Ramu Manivannan teaches at the University of Madras, India)