Is International Criminal Court action

possible on Sri Lanka?

May 8, 2017Views expressed in this article are authors own

by S. V. Kirubaharan- May 8, 2017

( May 8, 2017, Paris, Sri Lanka Guardian) Those who are for
justice and impartiality will fully agree that the Tamils in Sri Lanka,
especially Tamils from the hereditary land in the North and East
have been taken for a ride since independence in 1948 by every
government in power. The cheating tactics vary and would take
pages to write about. The North and East have been reduced to
North and today the North is now limited to only Jaffna. This is fair
evidence of aggression and oppression towards a people who
trusted and fought along with Sinhalese to gain independence
from the British.
For thirty-five years, Tamils engaged in unsuccessful non-violent
struggle, yearning to live in this island with dignity and political
rights. Another twenty-six years of armed struggle followed. The
ultimate result is that the whole of the North and East has ended
up with fully fledged Colonisation, Buddhisation, Sinhalisation and
militarization.
After more than sixty years of unsuccessful non-violent protest
and the armed struggle, now the diplomatic struggle is in process.
This is to say, the present struggle is fully dependent on a trust
that the International Community will seek justice and help the
Tamils, who are in the hands of aggressive rulers. Obviously, the
international community consists of democratic countries, the
United Nations, European Union, Commonwealth and others.
The diplomatic struggle cannot be waged without wider
knowledge of international politics supported by academics and
professionals. The usual emotional tactics, platform speeches,
TV/Radio interviews and press releases with exaggerations will
not bring any fruitful outcome in this approach. If we continue on
an emotional path, the diplomatic struggle will also certainly be a
failure.
Therefore, a think-tank approach should be considered for this
diplomatic struggle. We need consultation and sharing with other
ethnic groups who have won, and those who are still struggling
for their political rights. Also we need to have good relationships
with diplomats, VIPs and heads of states.
The present plight of the Tamils is in a real mess! There is not
even a tunnel which we can look through to see a light at the end.
Long ago, Sri Lankan founding rulers schemed everything in such
a manner, that the Tamil struggle for political rights would end
naturally without any gain.
However, there are ways and means to march towards positive
paths. In other words, all the doors are closed, but a window is
open. So, those who seriously consider the plight of the Tamils
should ask themselves, Where is that window and How can we
go through that window?
If any Tamil still hopes and trusts that there will be a reasonable
political solution through any of these governments which consist
of artful dodgers, they are wasting time. This blind belief will help
the governments to speed up their project of total Colonisation,
Buddhisation, Sinhalisation and militarization of the North and
East.
There are only two positive paths that will bring justice for the
Tamils. One is through internal contribution continuous struggle,
vigils, demonstrations and non-cooperation with the aggressive
state. Here the Iranian revolution of 1979 set an example for us. I
personally saw how Iranians won their non-violent struggle, facing
well-armed Iranian security forces. The world, including then
President of the USA, Jimmy Carter, indirectly sympathised with
the non-violent struggle of the Iranians.
Diaspora activities
Let us consider a second path. There are more than five hundred
thousand Tamils in foreign countries especially in western
countries. Among the diapora, there are people productively
contributing towards a peaceful solution. However, since May
2009, there are people systematically messing-up the good work
done by others. Still it is difficult to trace the actual people
backing these stooges.
It is the duty of genuine activists to carry out high-profile lobbying
on countries and head of states that have interests in Sri Lanka.
Countries like the USA, India, EU and Commonwealth countries
should be approached in a professional manner. In Geneva,
serpentine bar lobbying and corridor discussions will not bring any
great success in our endeavour. Another point worthy of note is
that, there is no way that Tamils political rights are possible
without the help of neighbouring India.
Look at the approach of Sri Lankan rulers. They use academics,
professionals and VIPs to sell their hypocritical agenda. They won
the war and are now winning and slowing down every action
taken by the UN Human Rights Council UN HRC. Therefore we
should ask ourselves, what is lacking on our part? Why dont we
approach these countries? This is where a think-tank approach
and subsequent action is needed.
We should stop all sorts of tasks which are purely based on
publicity and news items for our local websites and face books.
Do they bring any good to our people? Our approach within the
last eight years has produced no good for our Nation.
None of us liked the UN HRC giving a two-year extension to Sri
Lanka to implement resolution 30/1, which we know will never
happen. But if we seriously analyse how this extension was
granted to Sri Lanka, it is obvious that the USA was purely behind
this move. If so, as victims, what have we done about it? Some of
us selfishly blame and criticize countries like USA and India.
There are people who have not realized that as far as the
international community is concerned, since May 2009 we have
become a valueless coin. Considering these factors, there should
be a fundamental change in our approach to the international
community.
If Sri Lankan rulers can plead with the USA and change their
situation, what is lacking for us to do the same? We have never
approached India or USA in a manner which is acceptable to them
and strongly effective.
To be frank, platform speeches, press releases, TV/Radio
interviews, face book appeals with lot of exaggerations are not
going to bring any fruitful outcome for our Nation. These waste
time and worsen the situation.
To be frank, all Sri Lankan rulers are simply happy about and
made bold by our approach to the international community. They
know that our present approach will neither pressurise them nor
put them in any difficulty. Look at, what is happening to the GSP
plus concession. If there is no professional think-tank approach,
this will be the result.
Universal Jurisdiction UJ
If we had a think-tank approach on Universal/International
Jurisdiction, we as diaspora could do wonders. On 29 November
2010, I wrote an article in the Sunday Leader, Universal
Jurisdiction UJ (International Jurisdiction) This was written a
few days before former President Mahinda Rajapaksa visited
United Kingdom in 2010.
In 2010, when Mahinda Rajapaksa visited the UK, Tamils in the UK
worked hard on UJ. As a result, one of the war criminals who
accompanied Rajapaksa escaped secretly with the help of some
VIPs. This means that whoever from Sri Lanka is considered as a
war criminal, fears to step into the UK.
In fact, the last report on Sri Lanka by the UN High Commissioner
for Human Rights, reminds member states about UJ in Paragraph
71-B: Wherever possible, in particular under universal
jurisdiction, investigate and prosecute those allegedly responsible
for such violations as torture, enforced disappearance, war crimes
and crimes against humanity.
Its surprising that the diaspora organisations have not taken this
seriously. It was a shocking surprise that a war criminal and a
paramilitary member managed to attend the last UN HRC so
easily. I wonder how a few other war criminals still manage to live
and freely move in countries including Switzerland where UJ is
possible.
Presently, more than one hundred countries are qualified to
prosecute perpetrators under UJ. But only a few countries have
investigated and punished suspects. Some states have no political
will to exercise UJ. Other than in UK, have we tried UJ in other
countries?
So far, nearly twenty eight countries have dealt with UJ
Argentina, Australia, Austria, Belgium, Canada, Chile, Denmark,
East-Timor, Finland, France, Germany, Guatemala, Iceland, Israel,
Mexico, Netherland, New Zealand, Norway, Peru, Rwanda,
Senegal, South Africa, Spain, Sweden, Switzerland, Turkey, United
Kingdom and USA. The European Union and African Union have
also contributed to it.
Procedure for UJ
Here, I quote from my old article written on 29 November 2010.
UJ has become crucial because in the aftermath of many conflicts,
national courts have failed to prosecute perpetrators of
international crimes committed within their territory. Instead of
holding fair trials, amnesties have been awarded to suspects and
impunity prevails.
There is no special treaty on UJ. Its spontaneous authorization is
exercised when states are parties to certain international
conventions e.g. the Convention against Torture. Grave breaches
of provisions in the Geneva Conventions are another good
example.
UJ facilitates scrutiny into international crimes regardless of
whether the perpetrator(s) or victim(s) are nationals of the
country where the court is located. The crime that took place
could be outside that country.
Generally, national courts prosecute crimes under territorial
jurisdiction. Once a state party is signatory to certain
conventions, if there are sufficient admissible grounds,
international law allows national courts to proceed with a case.
Perpetrators can be prosecuted when they enter the territory.
International Criminal Court ICC
In the recent past, especially during the 34th session of UN HRC, I
heard many talking about taking Sri Lanka to the International
Criminal Court ICC, also some were murmuring about UN HRC
sending Sri Lanka to the UN General Assembly UN GA, as was
done to North Korea Democratic Peoples Republic of Korea
DPRK.
In reality, these two options are not straightforward as, some of
us shrill! Those are just emotional statements ignoring the reality.
I am not preaching that taking Sri Lanka to the ICC is impossible.
It is true that Sri Lanka has not signed the Rome Statute. But for
the ICC to charge war criminals from any country, being signatory
to the Rome Statute is not mandatory.
It is a pity that being a Lawyer, Sri Lankan Prime Minister doesnt
know about the process of the ICC, or perhaps he is pretending
that he is not aware of what happened to Sudan a country which
is not a signatory to the Rome Statute. In June 2005, the ICC
Prosecutor charged six Sudanese including the President of Sudan
with offences within the jurisdiction of the ICC. They were charged
on five counts of crimes against humanity, two counts of war
crimes and three counts of genocide allegedly committed in
Darfur, Sudan.
Therefore, my view is that our lobby at present which is limited
only to the UN HRC should be extended to the UN GA and UN
Security Council UN SC. Also we should work with USA which can
move matters to the ICC.
Whereas there is no lobby in New York, for some reason, Tamil
activists from Canada and USA too are lobbying in Geneva. This is
a waste of time and energy. If we continue in this line, we will not
find justice for the victims. To be frank, taking Sri Lanka to the ICC
cannot be done by platform speeches, press releases, TV/Radio
interviews and internal discussions. This affair has to be dealt with
by co-ordination arising from a think-tank in which some members
should be working full-time. High-profile lobby is a must. Presently
government observers are happy with our bluff in the name of
lobby.
Organisations which have enough funds collected from the
diaspora can easily go to New York with a group from a think-tank
and accomplish this task. If we lack in this approach, we will fail in
our diplomatic approach as well.
Blaming the USA is not a solution for accountability and
reconciliation. This is seriously damaging our future.
Those who claim that they understand global politics and
countries interests are damaging our Nation for their political
motives. A good politician will sacrifice his/her ego for the future
of the people, rather than harbour ambitions of re-entering
parliament, which obviously did/does nothing for the people of the
North and East.
North Korea / DPRK
Now let me deal with the claim that the UN HRC should send Sri
Lanka to the UN GA as was done to North Korea. As far as I am
concerned, those who make this claim have followed neither the
procedures of the UN HRC nor read the UN documents. Those who
understand UN procedures are laughing at them.
Let us look at what is happening to North Korea/DPRK in the UN
and the UN HRC.
Since 2004, the UN HRC has appointed a Country Rapporteur on
North Korea. As the UN representatives can work for only a limited
period on their assignment, the third Country Rapporteur is now
dealing with North Korea. At the same time, North Korea is already
on the radar of the UN Secretary General as well as the UN GA. On
18 December 2009, the UN GA adopted a resolution on North
Korea.
In fact, what happened in the UN HRC was that, as the Country
Rapporteurs could not dealt with North Korea, on 27 March 2015 a
resolution was adopted in the UN HRC, in which paragraph 22
says that the Council Decides to transmit all reports of the
Special Rapporteur to all relevant bodies of the United Nations
and to the Secretary-General for appropriate action. It is obvious
that those lobbying on North Korea were working not only in the
UN HRC in Geneva but also with UN GA as well as with UN SC.
Without knowing these facts, making statements to mark time, is
a foolish idea.
Concerning Country Rapporteur, the Tamil Centre for Human
Rights TCHR has been appealing for a very long time, for a
country Rapporteur on Sri Lanka to be appointed. This was done
with the UN Commission on Human Rights CHR, as well as with
the UN HRC. Unless we win the support of powerful countries and
heads of state, Country Rapporteur may be the next mechanism
that will happen in the UN HRC on Sri Lanka. It is true, it is very
late but considering our bluff in the name of lobby this is what
we may be qualified to get after another two years.
In conclusion, taking Sri Lanka to the ICC or even winning our
Right to self-determination internally or externally, depends on
our think-tank approach and related action, vis-a-vis powerful
head of states. Otherwise this may end-up as another
unsuccessful attempt, bringing more and more disaster to our
people. (End)
Posted by Thavam