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Was Mullaithivu Sri Lanka's Srebrenica?

by Chithirai, TamilCanadian, March 22, 2009

Moving forward, the central obstruction to pursuing Tamil justice will not be the international community’s indifference or the historical impediments of the GoSL’s political will or Sinhala-Buddhist majoritarian consent, but the global Tamil Diaspora itself and its own ability to unify and collectively mobilize behind legal action in international or non-Sri Lankan national courts. If Mullaithivu was not Sri Lanka’s Srebrenica, if the counter-insurgency was not genocidal, the Tamil position should be: genocidal impunity is not immunity. Let the courts decide.

In recent months, Sri Lanka has become a Tamil slaughter house with glass walls.

In the fog of asymmetric war, while global focus remains transfixed on the Tiger, gross violations of international criminal law are effortlessly obfuscated and erased by the government within the pretext of post-9/11 counter-terrorism. As what looks like a Sri Lankan Srebrenica unfolds in Mullaithivu, the nation breathes at a polarizing Rubicon where increasingly, support for war appears to be support for genocide in part.

Today, in Lanka, the spread of internment camps and steady torrent of death, abduction, alleged rape, arbitrary or indefinite detention, bombardment, shelling, and otherwise general decimation and progressive socio-cultural and economic strangulation of Tamil civilian areas over recent months, has pushed the global Tamil Diaspora to a tipping point. When the siege of Mullaithivu ends, and when those seriously injured Tamils denied medicines have died, the whole or partial extermination of Tamils in the territories in and surrounding Mullaithivu will be a fait accompli and arguably legally constitute genocide or an act of genocide committed by the GoSL.

The Diaspora must assess whether or not sending remittances, aid, relief, and building infrastructure, while constructive and viable methods of Diasporic activism during peace or low-intensity conflict, are sufficient in this hour. The Diaspora must choose whether the time has come for new complementary approaches to activism.

Collective legal action is one.

Thus far, shades of division and indifference within the global Tamil Diaspora has impeded exploration of this option as a means of engagement to pressurize the Sri Lankan government. If the Tamil Diaspora across nations can begin to act with common purpose supporting collective legal action, this activism can influence what unfolds at present. To provide one application of this angle of legal mobilization, an analysis of the Srebrenica/Mullaithivu parallel and the legal criteria for genocide and its application to the case of Tamil genocide in Sri Lanka, is detailed in this article.

Srebrenica/Mullaithivu Parallel

Firstly, analyzing the Srebrenica/Mullaithivu parallel necessitates analyzing the language historically contextualizing the violence. Categorizations such as “ethnic conflict” and “War on Terror” it appears have been part of a vocabulary which frames civil war, counter-terrorism, and genocide as mutually exclusive conflict phenomenon. Upon reinvestigation, the historical arc of Lanka's 4 civil wars since independence is also interpretable as one protracted, attritional Tamil genocide of slow death, sustained by forced cultural assimilation into majoritarian culture and genocidal conditions of life institutionalized to bring about the physical destruction of the Tamil people in whole or in part, to create a Tamil-free Buddhist Sinhala Sri Lankan state.

While Tamil genocide can be framed as such, within Eelam War IV (November 2005 - Present) or the 61-year post-independence history, recent mass atrocity crimes in Mullaithivu between January and March 2009 alone, are arguably legally constitutive of genocide, and will be analyzed in isolation in this article.

A post-mortem of January-March 2009 in Mullaithivu elucidates parallels between the 1995 Bosnian Muslim genocide in the Srebrenica Safe Area and Tamil genocide in Mullaithivu's Safety Zone.

To surmise Srebrenica, at the tail end of the Balkan Wars from 1991-1995 as Yugoslavia dissolved, before the 1995 Dayton Accords and later 1999 NATO bombing, a genocide was committed. In mid-July 1995, members of the Bosnian Serb army, the Vojska Republike Srpske (VRS), massacred between 7,000-8,500 Bosnian Muslim military age men. The massacre took place in the town of Srebrenica located in eastern Bosnia and Herzegovina. Srebrenica at the time fell within a United Nations Safe Area. One objective of this Safe Area was to protect civilians from the armed conflict that was occurring in Bosnia and Herzegovina at the time. Radislav Krstic was both a general Major in the VRS, and a member of the VRS Main staff. Radovan Karadzic, the president of Republika Srpska, who stewarded the Greater Serbia project to create a racially pure Serbian republic, was Supreme Commander of the VRS, and assigned Krstic with command and control responsibility over the Drina corps, a subunit of the VRS responsible for the territory of Srebrenica.

During the Srebrenica genocide, VRS soldiers removed Bosnian Muslim women, children and the elderly from the Srebrenica enclave. The military-age men who remained were systematically murdered through summary execution. This plan was devised by the VRS main staff. The U.N. Security Council established the ad hoc International Criminal Tribunal of the Former Yugoslavia (ICTY) in 1993 to investigate and prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. On August 2, 2001, the Trial Chamber for the ICTY convicted Krstic on a variety of charges related to his role for participating in the Srebrenica genocide, which exterminated 7,000-8,500 of the approximately 40,000 Bosnian Muslims in the area at the time the genocide was committed. The Trial Chamber concluded the massacre in Srebrenica was a genocide of the Bosnian Muslim population “in part”, which effectively destroyed Bosnian Muslims as a social entity such that Bosnian Muslims would not be able to reconstitute themselves in the territory of Srebrenica as they existed pre-genocide.

The chronology of, and intention behind, the mass atrocity crimes in Mullaithivu seem to fit the Srebrenica model. The genocides in Srebrenica's Safe Area and in the Vanni Region (Kilinochchi District, Mullaithivu District) including the Safety Zone in Mullaithivu district from January through March 2009, share similarities in intent, jurisdictional applicability of military command and control responsibility over superiors, and in the pattern of extermination of a protected group within a defined locality to ensure the group as a cohesive social entity will be unable to reconstitute itself in this territory, post-genocide.

In Srebrenica, Bosnian Muslim military-age men were forcibly deported to an area within Srebrenica, where they were exterminated by summary execution as part of a widespread and systematic plan, policy, and pattern to create a racially pure Serbian Republika Srpska. In the months leading up to January-March 2009 in the Vanni Region, the mono-ethnic Sinhala army systematically committed a pattern of war crimes and crimes against humanity under the pretext of counter-terrorism, targeting densely populated, ethnically homogeneous Hindu-Christian North-East Sri Lankan Tamil civilian areas, to drive, through “genocidal corridors”, Tamil IDP flows amounting to 350,000+ civilians into the Mullaithivu District, including the Safety Zone in Udayaarkaddu.

Like in Srebrenica's Safe Area, after Tamil civilians relocated to Mullaithivu's Safety Zone, the armed forces attacked the Safety Zone.

Between January and March, the army launched indiscriminate artillery and Multi-Barrel Rocket Launcher (MBRL) attacks and aerial bombardments, targeting territories inside, surrounding, and outside Mullaithivu's Safety Zone, including the repeated targeting of communal shelter infrastructure such as schools, hospitals, temples, churches, and temporary refugee camps. The siege of the Safety Zone was preceded by the withdrawal of all humanitarian aid organizations in the region enforced by the state. A regional media black out, in effect episodically over the past 3 years, was enforced during the assault and continues to blur humanitarian accountability mandated by the 1949 Geneva Conventions. Key roads and bridges were closed by the army to trap civilians. Medical supplies were denied to treat the wounded during and after the siege.

The ethnic-cleansing in Srebrenica's Safe Area and arguably in Mullaithivu's Safety Zone during January-March 2009 was systematic, premeditated, and part of a widespread plan and policy in each case to destroy or attempt to destroy the target group, physically, or as a cohesive social entity, in whole or in part, in territories in and surrounding a Safe Area. The crime of genocide, committed in Srebrenica and arguably committed in Mullaithivu, was committed by armed forces or state-sponsored military actors in the region, as part of a plan of progressive racial purification, in the former the vision of Serbian Repulika Srpska, in the latter the Sinhadhippa-Dhammadhippa inspired vision of a Tamil-free Buddhist Sinhala Sri Lanka as prophesied by the 6th century B.C. central text to Sri Lankan Thereveda Buddhism, the Mahavamsa.

In the Srebrenica/Mullaithivu parallel, overall differences are largely trivial, other than that Tamils in Mullaithivu during January-March 2009 were more vulnerable to genocide than Srebrenica's Bosnian Muslims in 1995 where the U.N. presence in the Safe Area was a deterrent in theory.

Legal Criteria of Tamil Genocide

Secondly, acts committed in Mullaithivu during January-March 2009 arguably satisfy the legal criteria for genocide.

Arguments referencing historical or present crimes committed by the LTTE against the Muslims or Sinhalese articulate the complexity of Sri Lanka’s conflict and have no bearing on the case of Tamil genocide. Arguments refuting whether Tamil genocide has occurred by comparison of Mullaithivu to the Holocaust or otherwise are legally non-substantive. Arguments alleging acts in Mullaithivu targeted only the Tiger confuse the issue, as counter-insurgency and genocide are not incompatible.

The application of the legal definition of genocide to intent-based acts is what determines whether certain acts constitute genocide, rendering as baseless assertions that acts of Tamil genocide in Mullaithivu or in the North-East, must optically, or numerically, measure up to a Holocaust or Rwanda standard. The crime of genocide, as set forth in the 1948 Genocide Convention, and promulgated in the ICTY, the International Criminal Tribunal of Rwanda (ICTR), the Rome Statute, and as domestically ratified by national courts across the world, is defined as acts intended to destroy, in whole or in (substantial) part, a national, ethnical, racial, or religious group, as such.

Therefore, to commit genocide at the group level, it is not necessary to physically destroy the target group in whole. The mens rea of genocide requires that so long as there is an attempt to destroy in whole or in part a target group, then these acts would be constitutive of genocide or acts of genocide, whether or not the acts succeeded in the physical and socio-cultural destruction in whole or in part of the target group. At the individual level, murdering a Tamil because s/he is Tamil is genocide; the counter-insurgency logic that a particular demography of Tamils in a particular area might be Tigers, and therefore these Tamils maybe murdered on suspicion of being a Tiger, is erroneous and not exculpatory through the eyes of the law.

To discern whether genocide has occurred, three elements must be established:

    1. the act occurred
    2. the existence of a national, ethnical, racial or religious group as such
    3. the intent to destroy that group in whole or in part

Given this definitional rubric, an act is genocidal if it is committed with the intent to destroy, in whole or in part, the national, ethnical, racial, or religious group, as such. This mens rea and actus reus requirement for Bosnian Muslim genocide was met in Srebrenica, and is arguably met for Tamil genocide in Mullaithivu during January-March 2009. The joint criminal enterprise of extermination which took place in Srebrenica and Mullaithivu, unfolded within a broader series of campaigns. Whereas in the Srebrenica genocide, individual criminal responsibility under the international customary law doctrine of military command responsibility was attributed to Karadzic and Krstic, in the Mullaithivu genocide, individual criminal responsibility is attributable to President Mahinda Rajapaksa, Defense Secretary Gotabaya Rajapaksa, Lt. General Sarath Fonseka, and other superiors and subordinates in the Eastern provincial military hierarchy.

Proof of genocidal intent, which separates the crime of genocide from crimes against humanity or perseuction, as established in ICTY and ICTR jurisprudence, may be inferred from the factual circumstances of the case. The inference that a particular mass atrocity was motivated by genocidal intent may be drawn even where the individuals to whom the intent is attributable are not precisely defined, and maybe inferred where the crime is motivated by dual motives, in the Mullaithivu context, genocide or counter-insurgency.

Establishing intent can begin by establishing the counter-insurgency was not non-genocidal, and thus by inference at least in part genocidal, which would meet the requisite mens rea requirement. This can be demonstrated by showing those individually criminally responsible had knowledge about the situation facing the protected group targeted for extermination during and in the wake of the military campaign; they had direct or indirect interaction with the main participants of the joint criminal enterprise; they had knowledge that resources and soldiers under their command were used to facilitate the killings In Mullaithivu, genocidal intent can be shown in several ways, including, but not limited to the following three approaches. Firstly, intent can be established by recent public statements by the Rajapakses and Fonseka which imply or state that Sri Lanka is a Sinhala or Sinhala-Buddhist nation, or which by negative inference imply that via their overly broad interpretations of non-Sinhala collateral damage, partial Tamil genocide is not an illegitimate method of Sri Lankan counter-insurgency. Secondly, intent can be inferred from the post-independence history's litany of anti-Tamil pogroms and anti-Tamil legislation promoting Buddhism, the Sinhala language, and which are arguably part of a larger historical pattern evincing a longer-term attritional design to Buddhist-Sinhalize the entire island. Thirdly, intent can also be established in the Mullaithivu context by the weapon of choice. It can be argued systematic and widespread use of indiscriminate aerial bombardments and artillery and MBRL shelling on densely populated ethnically homogeneous Tamil civilian areas, targeted the destruction in whole or in part of the Hindu-Christian North-East Sri Lankan Tamil ethnic group, rather than targeting a collective of individuals. Since these attacks were indiscriminately launched on areas packed with Tamil civilians, the inference that the intent of the act or acts targeted the whole or partial destruction of a protected group and not just a collective of individuals who by coincidence were Tamil, would be reasonable, and therefore, would be dispositive in determining genocidal intent.

The Srebrenica/Mullaithivu parallel and legal criteria for genocide, during January-March 2009, suggest that the question at present is not whether genocide has occurred, but rather can the global Tamil Diaspora mobilize to pursue justice in international and non-Sri Lankan national courts for a Tamil genocide which may have been already committed.

If the artillery and MBRL shelling, aerial bombardment, media blackout, deprivation of essential foods and medicines, barring of journalists, barring of independent observers, and mass confinement in internment camps where rape and disappearance have been alleged, all stop today in Tamil areas, it will not weaken the Tamil genocide argument, nor will plausible future counter-attacks by the Tigers. What has already occurred in Mullaithivu as perpetrated by the GoSL between January and March 2009 was not exclusively collateral damage, counter-insurgency, ethnic conflict, war crimes, or crimes against humanity. It was arguably a genocide in part blurred by or embedded within counter-insurgency, an operational duality which in court, would not exonerate perpetrators of committing genocide, the crimes of crimes.

If Tamil genocide in part has already been committed, Tamils should not allow Black July justice to recur. This time, the global Tamil Diaspora must find an international or non-Sri Lankan national court and a prosecutor, and engage in and establish a judicial process through universal jurisdiction or extra-territorial application of domestic law which can deliver to Tamils, justice commensurate with the crimes committed.

Moving forward, the central obstruction to pursuing Tamil justice will not be the international community’s indifference or the historical impediments of the GoSL’s political will or Sinhala-Buddhist majoritarian consent, but the global Tamil Diaspora itself and its own ability to unify and collectively mobilize behind legal action in international or non-Sri Lankan national courts. If Mullaithivu was not Sri Lanka’s Srebrenica, if the counter-insurgency was not genocidal, the Tamil position should be: genocidal impunity is not immunity. Let the courts decide.