While the Mu’l’livaaykkaal killings and the on-going cultural destruction in the NorthEast can be argued to constitute "Genocide" within the definition of the Genocide Convention of 1948, a virtual codification of the “Never Again” ethos, Western Nations including the United Nations have shown not only any inclination to accept that the crime occurred, but also are likely complicit in allowing the allegedly criminal state to continue to commit genocidal crimes, and to avoid accountability for crimes committed during the war. The criminality that may befall the West arising from Article 3(e), and the violation of Article I of the Genocide Convention for failing to prevent genocide. are likely reasons for the officials of the UN and UN member states to avoid calling the killings a "Genocide."
The Contracting Parties to the 1948 convention confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. The following clauses that attach criminality to those complicit in genocide, explain the silence of the West, according Tamils Against Genocide [TAG], a US-based activist organization:
Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article III(e): The following shall be punishable – Complicity in genocide.
Article IV: Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Even while Genocide convention assigns criminality for complicity in genocide, International community was unable or unwilling to prevent genocide through ex ante (before the occurrence) measures in Sri Lanka. While naked political calculations, blindness from the doctrine on U.S.’s war on terror and to allow Sri Lanka to defeat the LTTE by any means, deference to sovereignty, and isolationism may explain the failure, the complicit West was unscathed, has largely avoided accepting responsibility for failing to prevent the massacres, and was not hit by the Article 3(e) culpability arising from the "complicity" clause, TAG said.
The Petrie report has placed considerable blame on the UN staff for "complicity" for war-crimes. However, when and if the emerging new facts surrounding the killings, proven beyond reasonable doubt, establish that killings qualify as genocide, culpability of the West and the UN will follow from the Genocide Convention, according to legal sources in Washington. A selected list of legally significant statements that point towards complicity in the Mu’l’livaaykkaal killings, as analyzed by Professor Boyle, expert in International Law, follows:
Para 22:UN DPA admits, "we would be complicit if we do not act on it." In other words, establishes criminal intent, mens rea (mens rea – legal term element of crime, "criminal mind").
Para 25, 26, 28, 29: More whitewashing of GOSL crimes. UN aiding and abetting GOSL crimes, including genocide
Para 52, 53: UN deliberately understated GOSL atrocities so as to avoid international cries of war crimes, crimes against humanity and genocide that would have produced international pressure on the UNSC to do something. More Ban Ki Moon/UN complicity with GOSL crimes if not worse.
Para 76: This was a case of UN malfeasance and complicity, not negligence and nonfeasance or misfeasance
"The fact of genocide is as old as humanity,’ wrote Jean Paul Sarte, but the law only 50 years old. This dialectic of the ancient fact yet the modern law of genocide follows from the observation that, historically, genocide has gone unpunished. Nazi’s were only among the most recent to rely confidently on the reasonable presumption that an international culture of impunity would effectively shelter the most heinous perpetrators of crimes against humanity, writes Prof. Schabas.
Greenfield states that ex post judicial responses once genocide has occurred have also been equally fatal to the promise of the Genocide Convention.
Greenfield says, International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have made a critical jurisprudential error that has deprived the Genocide Convention, and the Tribunals enacted to enforce it, of an extremely significant deterrent effect. Greenfield asserts that the while the Statutes dictate that complicity in genocide is a stand-alone crime, ripe for prosecution, the recent decisions of the Tribunals have erroneously, determined that complicity in genocide is merely a form of liability for the crime of genocide, and not a crime itself.
The ICTY, and ICTR have conflated the "crime of complicity in genocide" with the "crime of aiding and abetting genocide," Greenfield points out, adding, that the drafters of the 1948 convention recognized that the crime of complicity in genocide captures a class of perpetrators broader than those implicated by aiding and abetting the crime of genocide.
Greenfield explains that one found guilty of aiding and abetting the crime of genocide must have the heightened mens rea of the genocidaire—“specific intent specific motive nexus;” by comparison, one who commits the crime of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea, such as malice evidenced by reckless disregard, or “specific intent without specific motive,” should suffice to attach guilt.
The complicity clause will, therefore, include all States that knowingly allowed the genocide to happen even if they did not have specific "intent" but only "reckless disregard." When a future tribunal on Sri Lanka is constituted legal community representing the affected Tamils should be vigilant to draw-in complicit states to attach criminality as dictated by the Genocide convention and not by the erroneous precedents set by ICTR, ICTY, TAG spokesperson told TamilNet.
Further, Article IV says, "[C]onstitutionally responsible rulers, [and] public officials are not exempt from criminal punishment.
While the hesitancy of the West to aggressively seek accountability for the crime of crimes committed by Sri Lanka may disappoint rights activists and the Tamil people, Nazi’s ignominious history as reflected in the Nuremberg trial and the genocidaire hunt still haunting the perpetrators of the holocaust after six decades, might likely also fall on Sri Lanka, a Tamil activist commented.
In a more broader context, one can see central recurrent questions in international law: the relation between the universalism of certain of its principles and the possibility that they are imperialist in nature.
Author, Jouannet illustrates that international law has, from its very origins, been the bearer of a paradox; a paradox that is, moreover, constitutive of the discipline, and from which international law cannot escape without itself ceasing to exist as such.
Actions of Tamil diaspora to seek justice and legal redress, and to establish culpability of the alleged perpetrators of Schabas’s "Crime of Crimes" in Mu’l’livaaykkaal in international judicial institutions have to be pursued with the full understanding of the politics underlying the term "Genocide," TAG spokesperson said.