Is International Criminal Court action possible on Sri Lanka?

Is International Criminal Court action possible on Sri Lanka?

May 8, 2017Views expressed in this article are author’s 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 don’t 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”.

It’s 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 People’s 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 doesn’t 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)

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