The Responsibility to Protect Tamil Civilians

by Prof. M Sornarajah, February 13, 2009

It has been reported that the Sri Lankan government has rejected the appointment of Mr. Des Brown by the British Government as an envoy to deal with issues arising from the persecution by the state of the Tamil population in the country. As with all totalitarian governments, like those in Zimbabwe and Sudan, the Sri Lankan government takes refuge in its sovereignty to deny the competence of the international community’s concern with the plight of the Tamil civilians who have been confined to a small space and subjected to relentless bombings by the Sri Lankan army.

The brutality with which Tamils have been treated in Sri Lanka by successive Sinhalese governments has justified a claim to self-determination in the Tamil minority.  It is an idea and a claim that cannot be extinguished by the killing of people, either the LTTE militants or the civilian Tamils. As with Palestine, the more killing there is, the more entrenched the determination and will of the suppressed people to continue the struggle, a fact lost both on Israel as well as the Rajapakse government. The history of the Tamil struggle shows that the more the repression, the greater becomes the resolve of the people to ensure their freedom.

In Sri Lanka, every government of every major party, from that of the two Bandaranaikes, the Jayawardene government and that of Chandrika Kumaranatunge kept themselves in power by stoking ethnic hatred and unleashing the army on the Tamil population, without making efforts at a political solution to an obviously political problem. That tendency has become more severe under the government of Mahinda Rajapakse, who finds in ethnic chauvinism, not only the means of maintaining the power of his family group but also of hiding the looting of the country and the economic decline that such plunder has created. Many civilians, largely Tamils but also Sinhalese,  have suffered so that this coterie could be kept in power. Sinhalese journalists brave enough to question the fact that the government is bombing its own people out of existence have been murdered within security zones which the government itself has established. No one has yet been arrested in connection with any of these murders. Sinhalese of good will, who queried the conduct of the government, have been quelled through fear or have left the country under threats of violence.

The plight of the Tamils at the present moment is grave. They are being decimated by bombings of hospitals and safety zones by the air-force and direction of artillery fire at these zones. The luring of these people into the safety zones and then bombing the zones smacks of genocide. This practice gives rise to the inescapable inference that ethnic cleansing is the clear purpose of what is being attempted. Taken together with the views expressed by the army commander about his mission to make the island under Singhalese rule and the obvious destruction of Tamil lives, there is genocide taking place in Sri Lanka. In the South, the torture of arrested persons, the disappearances of those opposed to the regime and the violence unleashed on the voices of dissent indicate that the whole of Sri Lanka is being subjected to colossal violations of a diverse category of vital human rights.

In the light of these circumstances, a responsibility to protect the Tamil civilians arises in the international community. The Responsibility to Protect is now well recognized in international law. It results from an international instrument which the General Assembly of the United Nations approved in 2005 at the World Summit. The Responsibility to Protect is a duty every state owes its minorities. The Responsibility requires that the minority not be subjected to atrocities involving genocide or crimes against humanity like torture. Where this duty is violated by the state, it is incumbent on other members of the international community to intervene and ensure that the persecuted group is protected. Such intervention is legitimate in international law. It is opposed only by a few states like China, Russia, Sudan and Zimbabwe, fellow travelers with the government of Sri Lanka and persistent violators of the rights of their own citizens.

There has been a history of violence against Tamils by the Sri Lankan government. The entrenched discrimination began with the independence of Sri Lanka in 1948 with a slew of legislative measures disadvantaging the minority Tamils. But, it soon turned into violence to dispossess them of their traditional homelands. This resulted in violent resistance which successive Sinhalese governments have sought to crush. Tamil men and women have been arrested and tortured. They have been transferred out of the main cities. Their homes have been taken over for construction of high security zones. Bombings of schools and hospitals in the Tamil region have been frequent. Women have been raped by the occupying forces. Children have been killed. Temples and churches have been demolished or desecrated.

Under Rajapakse, these practices have taken a more intense turn. Hiding under the war on terror initiated by a now defunct American government which also unleashed un-American practices in the name of the war on terror, the Rajapakse government has intensified atrocities on the Tamils. The Tamils have now been driven into a thin strip of land and are subjected to constant shelling by the government troops even in the designated safety zones. Independent verification for such shelling exists.

In these circumstances, a clear responsibility to protect arises. It is unlikely that the United Nations would act, as Russia and China, both Security Council members, have their own incidents of oppression of minorities in Chechnya, Tibet and Xiamen to hide. It is incumbent now on individual members of the international community who respect this Responsibility to protect the Tamil minority in its current plight of helplessness against atrocities. Britain has made a start in attempting to send an envoy. More requires to be done so that the gang of international criminals who rule Sri Lanka do not commit further atrocities. As with the British government, other Western states should insist on sending envoys to determine the situation that prevails in the hope of bringing help to a besieged people. The urgency of this situation is great as the people face decimation at the hands of the government troops.

One other urgent measure is to identify the coterie in power in Sri Lanka as international criminals who will have to pay for their crimes in the future in the same way Milosovic was expected to pay for his. What is happening in Sri Lanka is no different from what is happening in Dafur or what happened in Gaza. The equality principles requires these situations to be treated alike. As the impeachment of the President of Sudan is being contemplated by the International Criminal Court, it is necessary to think in terms of the prosecution of Rajapakse as well.  Another is to ensure that the corrupt wealth the Rajapakse coterie has spirited away in Western banks is identified and returned to the people of Sri Lanka. The announcement of these measures by well-meaning states will deter the continued persecution of the people, both Tamil and Sinhalese alike, by the Rajapakse government.

It is important to remember that a right to self-determination has arisen in the Tamil people as a result of continued discrimination and oppression which cannot be extinguished through government violence. It will live on however many people of whatever combatant status - terrorists, armed thugs, civilians call them what you want - are eliminated. It can only be dealt with politically through discussion between the two parties. There is a possibility still, as the majority of Sinhalese people who refuse to be deluded by ethnic chauvinism believe, of resolving this issue peacefully through the search for a constitutional mechanism. It must be said that the LTTE itself was not averse to this idea. It is time that the international community intervened in order to ensure that a guranteed settlement comes about through peaceful means and that a problem which has befuddled the island for over a generation is ended.

Professor M Sornarajah, a former lecturer in law at the University of Ceylon, teaches and works in the area of public international law.