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Meaningful accountability comes by addressing the national question

[TamilNet, Thursday, 3 March 2011 11:26 No Comment]

When events similar to what happened and is happening in the island led to international intervention and liberation of the affected in many other instances of the world, the issue of Eezham Tamils is consciously blunted as something concerned to insurgency, counterinsurgency and war crimes investigation of both. In the process, the main culprit of decades, i.e., the Sri Lankan state (not the regimes) escapes unscathed and is being saved by those who have a problem of irregularity with their appetite, writes TamilNet political commentator in Colombo responding to discussions in a live web-seminar conducted by Program on Humanitarian Policy and Conflict Research of Harvard University on 24 February.

Claude Bruderlein, director of the Harvard Program and Naz Modirsadeh, the associate director, conducted the seminar.

The panellists were, Jon Lee Anderson of The New Yorker, Dr. Palitha Kohona, the Sri Lankan ambassador to the United Nations, Sam Zarifi, the Aisa-Pacific director of Amnesty International and Alan Keenan, the senior analyst and Sri Lanka project director for the International Crisis Group (ICG).

Palitha Kohona, defending the SL government, and blaming the Amnesty International, Human Rights Watch and the International Crisis Group as if they were only reading TamilNet to bring their facts, received the remark that ‘The Ambassador Doth Protest Too Much’ from Amnesty International’s Sam Zarifi.

Kohona’s argument that 54 percent of Tamils happily live in the south going to temples and schools was the height of genocidal hypocrisy that only up-rooted Tamils having no claim on their homeland could live in the island under the watchful eyes of the Sinhalese.

Countering Anderson placing the beginning of violence to 1983, Kohona argued that violence started with Pirapaharan gunning down Jaffna Mayor Duraiappah in 1975, ostensibly ignoring the sequence of Sri Lankan state terrorism killing 9 innocent attendees of the 4th International Tamil Conference in Jaffna in 1974.

Kohona and his ilk twisting history and the international community ignoring the righteousness of the national question in favour of ‘reforming’ a habitually genocidal state just by war crimes investigations need a revisit on the history of irresponsibility of the international community in the case of Eezham Tamils.

The seeds of an ethnic question in the island germinated with the British administratively unifying the pre-colonial sovereign territories of the Sinhalese and Eezham Tamils to create a unitary Ceylon in 1833, and with the demographic changes brought in by them in the Kandyan territories. These developments, coupled with the advent of contradicting ideologies of Orientalism and nationalism of the colonial brand, never helped a sustainable multicultural state formation in the island.

The ethnic question transformed into a national question within one year of independence. The disenfranchisement of the Up-Country Tamils in 1949 is the first clear international legal instance confirming the birth of a national question in the island. The advent of Ilankai Thamizh Arasuk Kadchi or Federal Party, and its popularity were the national response of Eezham Tamils, as there was no international or Indian response to uphold ‘multiculturalism’ in the island.

The international irresponsibility in the name of ‘state sovereignty’ when there was the Sinhala Only Act in 1956, state-sponsored pogroms against Tamils since 1958 and the enactment of a constitution of exclusionism in 1972 led Tamil political parties of all shades to declare independence in 1976 (Vaddukkoaddai Resolution) and the Eezham Tamils to democratically endorse it in the 1977 general elections.

The violent response of the majoritarian state to democratically expressed aspirations, as was seen in the speech of J R Jeyawardane in July 1977 followed by state-sponsored pogrom of 1977 and the following violent repressive measures of the state inevitably transformed the struggle of Eezham Tamils into a violent one, especially after the 1983 state-sponsored pogrom. This time there was not only international irresponsibility but there was meddling too, especially by the USA and India.

The international irresponsibility when the competition between the USA and India led to the hoodwink of 13th Amendment and that too unimplemented, when India committed war crimes against Eezham Tamils, when a peace process of international character between 2001-2006 could not be sustained and finally when the war ended in the way that all are belatedly lamenting now, are well known.

But the underlying fact is that this international irresponsibility was always working, and is working against the nation of Eezham Tamils.

After kindling national divide to the maximum by irresponsibly allowing and even abetting the genocidal end to the war, some culpable establishments and policy makers influencing them still pretend that the core issues are not genocide and national liberation but minorities, ‘terrorism’, insurgency, counterinsurgency and war crimes.

War crimes investigation is not the core issue. But it underlines the urgent need to internationally address the national question in the island to prevent further crimes of genocide.

But the policy makers influencing international establishments show double standards.

When events similar to what happened and is happening in the island led to international intervention and liberation of the affected in many other instances of the world, the issue of Eezham Tamils is consciously blunted as something concerned to insurgency, counterinsurgency and war crimes investigation of both.

In the process, the main culprit of decades, i.e., the Sri Lankan state (not the regimes) escapes unscathed and is being saved by these policy makers who perhaps have a problem of irregularity with their appetite.

It is the strange problem of appetite in the West, coupled with anti-Tamil paranoia in India that has encouraged successive regimes of Sri Lanka from Jayawardane onwards to proceed with genocide.

Rajapaksa regime cannot be totally blamed for its wartime military commander saying that the island belongs to the Sinhalese, Rajapaksa later endorsing it by saying that he would see that there are no ‘minorities’, and quite recently for him saying that what he refused to give Pirapaharan he would not give to others or the ‘victory’ achieved will not be conceded to others.

The message is always loud and clear, but people discuss in the Harvard don’t hear it.

All the establishments, policy makers and international crisis managers who failed and is failing to call a spade a spade are in no way less culpable than the Sri Lankan state and its regimes like that of Rajapaksa.

War crimes investigation is only in the lips. Many agree that nothing is going to happen for years until all those who are responsible inside and outside of the island are dead and gone or go out of power.

Rather than advising others on the lengthy process of filing individual cases in several countries, why can’t some of the international guardians of human rights undertake direct initiative in doing that?

Alan Keenan in subtle ways discourage any serious prosecution or conviction, citing that there is now only one side remains to be convicted and that side will make it an issue of ‘Sinhala nationalism’.

This echoes only what Rajapaksa says ‘past is past’.

The Sinhala nationalism is always readily recognized and feared by many, but Eezham Tamils having nationalism is a sin.

Generalising the Sri Lankan state crimes in the war with JVP with the crimes in the war with LTTE is another tactic to save Sri Lankan state by placing hopes on ‘state reformation’ in the island in the future by retaining the state.

The war with the JVP was an intra-nation issue within the Sinhala nation, but the Eezham war is an inter-nation issue involving genocide. The failure to recognize genocide is a crucial crime deliberately committed by the international policy makers.

One of the participants in the Harvard discussion, Sam Zarifi, had the word genocide in the presentation, but he refrained from spelling it out in his speech. Why the hesitation?

Expanding space for “supporting Sri Lanka’s small multi-ethnic community of rights activists should be a top priority for international action”, Alan Keenen argues and laments that that the space shrinks further by placing more emphasis on war crimes by foreign governments and organisations.

The ultimate aim of all in the game is not only confirming the military victory but also gaining moral victory for all what had gone before.

Many of the international institutions that were in complicity to the developments that led to the genocide and to the continued genocide in the island by tilting the balance, now pose as though they had nothing to do with them, never acknowledge their guilt and continue with not acknowledging the righteousness of the liberation aspiration of Eezham Tamils.

As a passing reference to counter an argument of Palitha Kohona, Sam Zarifi said that the Tigers at some point had a claim to sovereignty, asking whether wouldn’t that have made the war to be considered as an international armed conflict.

The question that comes is whether some establishments intentionally abetted the Sri Lankan state to annihilate that hard-earned sovereignty ‘to the end’, so that there won’t be any future prospects for Eezham Tamils to exist as a nation.

More than hoodwink of war crimes investigations what is needed is an international commission to ascertain the right to independence of the nation of Eezham Tamils. There is plenty of space in the international law to argue the case as well as to resolve it by democratic means provided the powers are not sitting on it.

Alan Keenan was stressing on an international campaign that governments respecting Geneva Convention and international humanitarian law should not attend the conference “Defeating Terrorism: The Sri Lanka Experience” scheduled to take place in Colombo May this year, as it would endorse the Sri Lanka option as a role model.

This is a superficial issue important only to those who try to save their face now. Everybody knows who ultimately defended the ‘Galle Literary Festival’.

If no country should hereafter dream of ‘Sri Lanka option’, If no power should hereafter abet genocides by manoeuvring terrorist paradigms, if no international organisation should hereafter fail in its duties and if no international media could hereafter be made stooges in the age of information, then the moral and political victory should be conceded to the cause of the Eezham Tamils, who are unduly victimised for such a long time, even though they never worked against the interests of any powers.

Calling for war crimes accountability, the US Senate on Wednesday accepted that the United States Government has yet to develop a comprehensive United States policy toward Sri Lanka that reflects the broad range of human rights, national security, and economic interests.

Jon_Lee_Anderson Jon Lee Anderson, an author and journalist, who had visited the island in 1983, 1986 and last in 2010, in his address said he found, on the Sri Lankan government side, religious Sinhalese nationalism during his initial trip in 1980s while interviewing people, leaders and religious dignitaries in South while saying that the ‘insurgency’ led by ‘rather extra-ordinary militaristic man’ was brutal. Mr. Anderson, who recently wrote an article in the New Yorker: "Death of the Tiger: Sri Lanka’s brutal victory over its Tamil insurgents”.

About the 2009 Vanni War, Anderson said, he was both astonished and shocked at the way the war ended, and the way, in the age of Twitter and Facebook, there was no one tweeted about it, the war was not covered by the press, a very few humanitarian observers were present and there was almost no diplomatic presence. The reason was that the Sri Lankan government did not allow anyone to be near the war zone.

After visiting the island twice last year and meeting the top brass of the Sri Lankan military and seeing the civilians living under military supervision, he came with the conclusion that “war crimes did occur and that the accountability is an extremely important issue.”

“I remain disquieted and concerned about the future harmony,” he said.

“The ending of the conflict in the way that was ended poses long term issues for the society."

The journalist had the same feeling of the conflict when he first witnessed the conflict in early 1980s.

Palitha_T_B_Kohona Palitha Kohona, the Sri Lankan ambassador to the UN, in his attempt to defend the Sri Lankan state argued: “What happened in Sri Lanka cannot be characterized as a simple case of countering an insurgency. There was a group, which was proscribed by the most of the democratic world as a terrorist organisation and was described by the FBI as the most brutal and sophisticated terrorist organisation in the world. And this organisation controlled territory and uniquely deployed naval and air assets.”

For Palitha Kohona, the violence in his island started when Pirapaharan gunned down a Sri Lankan mayor in Jaffna in 1975 and not in 1983 as Journalist Jon Lee stated in his address. There was no mention about state-run ethnic pogroms that took place in the earlier decades.

Most of his address, defending the SL government, and blaming the Amnesty International, Human Rights Watch and the International Crisis Group as if they were only reading TamilNet to bring their facts, received the remark that ‘The Ambassador Doth Protest Too Much’ from Amnesty International’s Sam Zarifi.

Extracts from the address by Alan Keenan of the ICG:

Alan_Keenan However important it is to bring accountability on many violations of laws of war committed by both the LTTE and the government forces, there is a real danger that the almost exclusive focus on the agenda of war crimes investigations will distract from, or undermine efforts to address: a) the more general practice of the rule of law and; b) a larger history of atrocities that members of all communities have suffered from in Sri Lanka.

It is important that international attention on Sri Lanka recognise clearly that all of Sri Lanka’s communities have suffered and continue to suffer from impunity and the collapse of the rule of law.

At the moment there is very little space for domestic resistance on these matters.

Expanding that space and supporting Sri Lanka’s small multi-ethnic community of rights activists should be a top priority for international action.

Unfortunately, it also thus seem true that such space shrinks further the more emphasis is placed on war crimes by foreign organisations and governments. This is a dilemma that we all are face with.

Almost all the civilian victims in the final months of the war were Tamils and the only major leaders left to prosecute, should we ever get to that stage, are Sinhalese government officials.

And this is in part, because the government has in fact granted extra legal amnesty to the few senior LTTE leaders who are still alive. Now, as a result, call for war crimes, especially from abroad seems to many Sinhalese and government supporters to be one-sided.

The government has exploited this and uses the general spirit of triumphalist Sinhala nationalism to rally public support against what they say are attempts by elements of the international community to turn back their hard-won victory over the LTTE.

Now, international debate on […] Sri Lanka should consciously adopt and broaden an agenda as possible, focusing not only on war crimes, but also on the need to re-establish the democratic institutions throughout the country, to de-politicise the police and the judiciary and institutionalise impunity, to de-militarise the North and East, and to develop a political solution to legitimate grievances of minorities.

The part of the shift to a broader agenda would be to acknowledge that however brutal the final months of the war were only part of more than 40 years of war and insurrection.

Beginning in 1971 really was a left-wing Sinhala based uprising by the Peoples Liberation Front known as the JVP, in which tens of thousands of people were killed in the counter-assault by the government. Sri Lanka has seen many periods of terror and […] insurgencies from which members of all communities have suffered.

2009 is not the only year that needs to be investigated and better understood.

Indeed the history of atrocities on all sides need to be investigated and it would require a proper domestic truth and reconciliation commission with a broader mandate, better resources, a longer time-scale and better cut-out procedures than the ad-hoc and politically motivated LLRC.

Unfortunately, with the regime in power that is anything but favourable to truth and open discussion, such process is unlikely to be established for years, if ever.

For the all the reasons above, we are hopeful that the panel of experts appointed by the [UN] Secretary General last year to advice him on accountability options in Sri Lanka would in fact recommend the establishment of an international commission of inquiry.

Today, as Sam Zarifi was pointing out, there is little [chance] that either the Security Council or the Human Rights Council would be willing to appoint such a commission. Both parties failed abysmally to use their powers to protect civilians in the final year of the war in 2009 and little suggest that they would act anymore responsibly today.

We therefore believe that the most politically realistically route to commission of inquiry would be for the secretary general to directly appoint a commission himself and act fully within his powers despite the attempts by the Sri Lankan government to argue otherwise.

For the Secretary General to take this step however, he will almost certainly require strong support from powerful member states and a large portion of the Security Council.

Unfortunately, a number of influential foreign governments, including both the United States and Great Britain continue to resist calling for an international commission of inquiry.

They continue publicly to hold out hope despite the evidence to the contrary that the LLRC could somehow contribute to accountability for alleged war crimes. And they say they want to avoid ‘pre-judging’ its work with the possibility of another more robust domestic accountability mechanism.

We believe actually that there is no chance that the LLRC making any significant contribution towards acknowledging, holding anyone to count for the crimes committed in the final months of the war.

That said, other governments want to support positive ways of addressing Sri Lanka’s legacy of violence and injustice. There is nothing inconsistent with encouraging Sri Lanka to pursue reconciliation through the work of the LLRC, or other ad-hoc and better resourced […] while also supporting international inquiry into allegation of war crimes. Reconciliation and accountability are different issues and require different goals to achieve. Both are needed.

[…]

When comparing Sri Lanka to other apparently similar situations of counter insurgency, it is important to understand the extreme horror of those final months on the beach […]. The intensity of civilian suffering, the number of those likely killed in just 4 months 20, 30, 40 thousands of people, the blatant disregard for co-principles of International Humanitarian Law including the shelling of hospitals and the denial of humanitarian access and the absolute unwillingness of the government to admit any wrongdoing responsibility for the suffering of their own citizens.

All the available evidence suggest, from the period of January to May 2009, in northern Sri Lanka we saw some of the worst civilian suffering in the recent history, clearly on different scale than what took place in Gaza at the same time, and arguably worse than what seems now to be taking in place in Afghanistan, however much those situations are also deserving serious independent international investigations.

My final point extends to the responsibility of the all concerned to repudiate, rather than promote, the ‘Sri Lanka Option’ for ending insurgencies, of an upcoming conference by Sri Lanka military on ‘Defeating Terrorism: The Sri Lanka Experience’, which is scheduled for late May in Colombo, "an international seminar to share Sri Lankan experience on the road to military defeat of the world’s most ruthless terrorist organization” Sri Lanka has invited the world’s militaries to come and study the lessons of their victory over the LTTE.

Given the strong evidence that the Sri Lankan military committed grave and systematic violations of the laws of war, as did the LTTE, and continues to actively resist any investigation of theirs or the LTTE’s actions, no government that respects the Geneva Conventions and the principles of International humanitarian law should allow their military leaders to attend.

Extracts from the address by Sam Zarifi of Amnesty International:

Sam_Zarifi The so-called Sri Lanka model of Counter Insurgency is posing a real challenge to the executive International legal model, and we heard some of them from Ambassador Kohona.

Basically, the argument is that if you are fighting an enemy that is engaging in act of terrorism and is particularly audios and there is no question that LTTE were particularly unsavoury group of people engaging in human rights violations and viol of int. law in massive scale.

Sri Lanka’s approach seems to have been that if you are fighting a group like that everything is out of window, and you can use all forces under your disposal without any real reference to International Law standards and in particular as in the case of Sri Lanka if you can keep away the prying eyes of journalists, independent observers and humanitarian aid workers.

As you may imagine, to a number of militaries around the world fighting insurgencies on their own, this [Sri Lankan] model is very appealing, because it basically says they can do pretty much what they want as long as they can claim they are engaging in counter-terrorism and as long as they can keep everything hidden.

Unfortunately, we have seen the Sri Lanka model, being trumpeted of course by the Sri Lankan government, but also being discussed legitimately in military circles around the world – including in the United States. And in my personal experience for instance, seeing this kind of talk prop up in Pakistan and Burma, where the argument has been ‘let us threw out the Law’.

One of the challenges I think that was identified for this discussion today is what exactly can the International Community and International Law do to respond to bloodshed on this level.

The answer is, as always, only as much as the members of the international community themselves are willing to do, which at first glance may seem like not much, but I would like to conclude with the argument that in fact, even within somewhat weak framework of international Law there is quite a bit that can be done and some of it has been done.

As far as the Law is concerned what Ambassador Kohona said in terms of characterising the LTTE is absolutely irrelevant.

This was what is called a war of a non-international character, an internal armed conflict. If the Ambassador and the Sri Lankan government are pointing out that the Tigers were a particularly powerful insurgency, I assume that they are not arguing that the Tigers at some point had a claim to sovereignty, which would have made it an International Armed Conflict?

This was by and large an internal armed conflict and insurgency, and International Law it turns out has quite a bit to say about both have a conflict of an internal nature is conducted, the Laws of War, and of course the International Humanitarian Law (IHL).

One of the key sources common article 3 of Geneva Convention about the conduct of non-international armed conflict, which says that war crimes are prohibited and crimes against humanity are prohibited. By and large, a lot of what is in the Geneva Convention has been codified now in the Rome Statutes of the ICC. For the sake of making things easier, all actually rely on the ICC.

[While explaining the crimes that come under the jurisdiction of ICC, Mr. Zarifi displayed a slide listing genocide and crimes against humanity and war crimes as three separate points. But, he didn't touch on the term genocide in his address.]

The top category of conduct is war crimes.

These are basically abuses that are committed in the context of armed conflict: violence to life and person, mutilation, torture, hostage taking, intentional targeting of civilians and civilian objects, killing civilians or killing combatants who have surrendered or otherwise unable to fight.

It is important to point out that under international law, war crimes don’t have to be systematic or widespread. Really, it is just that it have to a be as part of a large scale policy. So, that means effectively that one instance of this kind of crime is sufficient to trigger the International Law.

The other category is Crimes Against Humanity, which are not necessarily part of an armed conflict, but in Sri Lanka are quite significant. These are committed as part of a widespread or systematic attack directed against civilian population.

For instance, in Sri Lanka, in the North and the Northeast, was clearly an armed conflict, but in other parts of the country where there was not necessarily conditions of armed conflict, these might be raised: and these include: murder, imprisonment, torture, sexual violence and enforced disappearances.

The above are the two categories of crimes under international law that are immediately applicable to the situation in Sri Lanka.

Contrary to what Ambassador Kohona said, in fact there is very strong allegations, based on evidence including from the US State Department that suggest that there were incidents in both the LTTE and the Sri Lankan government engage in international crimes and there should be proper investigations of these crimes.

And it is a very indispensable position of the Sri Lankan government – and we heard this from Ambassador Kohona – to claim on the one hand that there was absolutely no violations of International Law, but [on the other hand] they wouldn’t allow anyone to investigate anything. So, this goes to the old adage of The Ambassador Doth Protest Too Much.

Certainly, if the Sri Lankan military had a zero tolerance of civilian injuries – by the way something that is not borne out by the evidences that the Amnesty International and other groups have – the LTTE did not have that. And it is equally important to examine the crimes potentially committed by the LTTE.

The question remains that who can hear these claims of violations of international law.

There is an International Criminal Court, but Sri Lanka is not a signatory to it. So, the only way these crimes can be heard by the International Criminal Court, at this point, is that the UN Security Council refers these incidents to the ICC.

Well, there are lot of practical reasons why we think this not necessarily be realistic, but certainly Amnesty International raises the question: why not!

But, what is important is to note is that the ICC is not the only way to address these crimes.

There is the concept of Universal Jurisdiction, which allows governments around the world to exercise domestic jurisdiction to investigate and prosecute certain crimes even if they weren’t under their territory or by one of their nationals or against one of their nationals.

This basically goes to the notion that certain acts or certain crimes are outrages against humanity not just against the particular nation-state and therefore it is the responsibility of all nations, all states to prosecute these crimes. And, not surprisingly, Universal Jurisdiction applies to a number of crimes under the International Law including war crimes and crimes against humanity, torture and attacks on UN personnel, and acts of terrorism in some cases – not all of these are directly relevant to the situation in Sri Lanka, factually, as far as we know.

We hope that we will start seeing countries around the world exercising Universal Jurisdiction against people, against whom there are realistic, credible allegations whether they are members of the LTTE or the Sri Lankan government, who were responsible. In that regard I should point out that the doctrine of command responsibility applies not just to military officers, but to civilian officials.

There is a little bit of lack of clarity under International Law. Amnesty International’s view is that under International Law, any military officer or a civilian official with direct authority who knew or should have known about atrocities committed by subordinates and failed to take action have the same degree of culpability as the soldier or officer who actually perpetrated that crime, and that of course goes immediately to people in the military chain of command, for instance, the Commander-in-Chief or the Minister of Defence.

The Rome Statutes reads this a little bit more narrowly, but again I don’t think this is actually relevant in the context of Sri Lanka, [where] both the Commander-in-Chief and the Minister of Defence have been very clear that they were absolutely aware of everything that the military was doing, and to that extent they are likely to face Command Responsibility or liable for that. That is where these international crimes need to be addressed.

Let me end by pointing out what Ambassador Kohona talked about, which is a red herring this notion of we have to wait for the Sri Lankan government and judiciary to respond to this [investigations].

First of all, there is absolutely no requirement under international law for the concept of complementarity.

It would be ridiculous to wait for a government of perpetrators to address a series of crimes directed allegedly against itself and say that the rest of the world simply has to wait.

What the Ambassador referred to, the Lessons Learned and Reconciliation Commission, is even by the standards of what is called Restorative Justice, that is truth seeking mechanism, which is particularly weak. This was a mechanism that was set up explicitly not having a mandate to investigate violations of human rights and humanitarian law or to seek accountability. So, at best, the LLRC if it worked – well, which it didn’t – would be only something that could potentially gather facts and think about reconciliation. But, in fact, it is not a justice mechanism.

Amnesty’s and my experience around the world has been in contrary to what Ambassador Kohona said.

Neither the International Community or most Sri Lankans, whether Tamils, Sinhalese or Muslims with whom we have spoken, do not think that we can just get on with it. They believe that it is absolutely essential to the process of creating a better, more representative Sri Lanka that international crimes, violations of human rights be addressed that the be a sense of truth telling and be sense of accountability.

That is why Amnesty International, as well as other groups, are pushing for accountability and justice and why we are hoping that the Sri Lankan government will seek to obstruct this. And, if in fact nothing really bad happened, simply allow the investigations to go forward.

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