The UN Secretary General is under attack by international legal experts and the media for a seriously bungled war-crimes prosecution in east asia- Cambodia’s war tribunal (Extraordinary Chambers in the Courts of Cambodia, ECCC). Two million civilians were killed by Pol Pot’s Khmer Rouge, and 35 years later, politics and finance, instead of law and evidence, appear to dictate the course of justice. But, here, now, Tamil political leaders point to the Cambodia model as reflecting the speed of international investigations, and assert that Tamils should not be impatient at the slow progress of international mechanisms. Western States, allegedly complicit in "crime against peace" in Sri Lanka, forward the same argument to avoid their own exposure and to buy the SL Government time so that 30-years into the future, prosecutions become largely irrelevant as is happening in Cambodia.
Legal activists say two aspects of TNA’s reference to the Cambodia model for Tamil justice need to be highlighted:
The "step by step" approach to prosecution, and the reference to complementarity, while doctrinally relevant, are routinely used by powerful states to advance geo-political interests. Prosecutions are expedited when it is politically advantageous, and prosecutions are delayed to make them irrelevant to save smaller powers or heads of state when needed. US, and India are actively promoting such delays to the advantage of Rajapakses.
In Cambodia, 30 years after the mass killings, the victims are no closer to justice. Cambodia’s leader has only allowed prosecutions, charges and witnesses he decrees. The UN has been ineffective in enforcing judicial independence. Aging witnesses, fading memory, and deteriorating evidence have hampered investigations.
Tamil circles assert that during the current critical period when States complicit in aiding Tamil genocide are scrambling to assemble pliant Tamils to sidestep Tamil justice by using instruments of reconciliation and development, Tamils need to galvanize momentum for meaningful independent investigations with relentless legal pressure worldwide. Vigilance against being absorbed into conspiracies designed to save Rajapakse, is paramount in sustaining the criminal exposure of the regime, Tamil circles say.
International human rights organizations including Amnesty International and Human Rights Watch have been persistent in their call for immediate International investigations. These actions, together with concerted legal actions from the Tamil diaspora, at some future point, will make untenable Western posturing on delaying investigations, rights activists said.
At this juncture, Tamil National Alliance (TNA) leadership pointing to the Cambodia tribunal as a suitable model for Tamil justice with regards to the conventional function of international relations should be viewed with extreme suspicion. Legal activists point out that while the model may be relevant where the victims are helpless, educationally underprivileged, and the international action proceeds at a pace determined by the whims of the powers with geopolitical interest in the region, the Tamil case is different.
"Tamils, the victims of alleged genocide, have the capacity and are equipped with intellectual and legal know-how to push the justice agenda forward, using the largely independent legal systems of western liberal democracies. In the pursuit of war-crimes prosecution, dependence on political patronage from States that have alleged complicity in the crimes, needs to be minimized. TNA should articulate Tamils’ wishes, and not educate them on this matter," Tamils Against Genocide (TAG), an activist group involved in legal action said.
Further, while a pragmatic view of the international law dictates that "state consent plays an important role in maintaining an international legal order," the body of jus cogens, which does not permit derogation, represents a dramatic limitation to sovereign authority. However, international mechanisms, including the UN, with a collection of member states with different political agendas and geopolitical interests, can manipulate the impact of international laws in prosecution of war-criminals.
Also, while the concept of complementarity allows the International Criminal Court (ICC) jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility, Sri Lanka is not a signatory to ICC’s Rome Statute, and ICC prosecution can be only through a vote by the Security Council. However, in terms of the general application of complementarity, which the International community insist on, Wikileaks has revealed the US is aware of Rajapakses complicity in crimes and justice cannot be expected from any internal mechanisms. LLRC, by its failure to investigate war crimes, has clearly demonstrated that complementarity is satisfied and no further demonstration of "unwilling and unable" is likely necessary.
With limited exposure to western legal systems and procedures, TNA is not adequately equipped to "educate" Tamils on international law, and the suitability of other war-crimes prosecution models to seek Tamil justice. Continued reluctance to articulated as due to pressure from States, US, India, and Norway, which are intent on saving Rajapakses, and blunting Tamil aspirations, Tamil circles cautioned.