Justifying a Referral to International Court of Justice
by Thambu Kanagasabai LLM [Lond.] Former Lecturer in Law, University of Colombo, Sri Lanka, January 27, 2020
The International Court of Justice [ICJ] is the principal organ of the United Nations and was established in 1945 by the Charter of the United Nations. This Court is located in Hague, Netherlands and was founded at the initiative of USA in 1945 in California.
ICJ’S primary function is to settle disputes between United Nations member states and gives advisory opinions on International legal issues referred to it by the United Nations. Its opinions and rulings are considered as one of the sources of International Law. It is composed of 15 judges. Furthermore, it’s decisions are legally binding on the parties to the dispute.
The case filed by Gambia on December 12, 2019 against Myanmar alleging genocide of Rohinya Muslims is an example of a case filed under the 1948 Convention on Genocide Article 9 which “Allows for disputes between parties” relating to the responsibility of a state for genocide and related acts to be submitted to the ICJ by any party. ICJ has already confirmed that “All member states of the Genocide Convention have a duty to prevent and punish genocide”. Sri Lanka is also a party to this Convention since 1950. It is not necessary that a state filing a case in ICJ is directly involved in the alleged crimes like Gambia. This case is now proceeding in Hague and ruling is expected within this year.
Sri Lanka’s alleged war crimes, crimes against humanity and enforced disappearances etc. without any doubt constitute genocide within the definition of UN Convention. The victims of these can seek the assistance of any UN member state to file a complaint of genocide against Sri Lanka in the ICJ to rule on the question of genocide against Tamils. A favourable ruling can lead to Resolutions in the UN, UNHRC and/or Security Council for reference to ICC. To prove genocide, genocidal intent is a must. This includes “ general mental element” and “special intent” that have to be proved to establish a prima facie case to activate the ICJ for filing a law suit against Sri Lanka.
In this respect, allegation of the commission of genocide against Tamils has to be and can be proved, with graphic pictures, documents, witnesses, oral evidences of witnesses and documented reports by various Human Rights Groups, Human Rights Activists, Human Rights Organizations and Special UN Reporters including UN and UN High Commissioners of for Human Rights, most of them visited Sri Lanka between 2010 to 2016.
General mental element includes acts committed with intent, knowledge, recklessness or negligence. Perpetrators must act with intent to cause particular consequences or being aware that it will occur in the ordinary course of events.
Specific intent implies “Purpose to commit the acts to destroy in whole or part of a national, ethnical, racial or religious group as such”. It is clear as crystal that Tamils fall within this definition as a national, ethnical and/or racial group killed in various locations in Sri Lanka during the pogroms against the Tamils in 1956, 1958, 1971, 1977, 1981, 1983 and genocidal war from 2006-2009 which caused the lives of more than 200,000 Tamils.
A specific part of the group is emblematic of the overall group or essential to its survival which is enough to qualify as part of a substantial group.
It is to be noted that genocides do not happen overnight or due to sudden provocation or impulse of few and some, but it is a calculated designed agenda and move with meticulous planning and methodical executions.
There can be no iota of doubt that Sri Lanka’s Tamils living in their traditional and historical homelands in the North and East of Sri Lanka have suffered the genocide including structural genocide since 1949. The politics and policies of Sinhala/Buddhist Governments in Sri Lanka since 1949 vouchsafe this irrefutable truth and fact. Various pogroms, massacres, discrimination and marginalization, Sinhalisation and Buddhisisation point to the commission of genocide. Intention of successive Governments is to erase the history, culture, language, traditions and historical sites and marks of Tamils to make Sri Lanka an exclusive SINHALA-BUDDHIST STATE. The recent statements of Government leaders confirm this position with no room for ambiguity. As such the justification to approach ICJ by the affected Tamils through a UN member state to seek accountability and justice is grounded on the following causes of action, which are irrefutable facts solidly founded on unshakable evidence.
 A politicized security sector [consisting of 98% Sinhala/Buddhist] with entrenched culture of impunity to Security Forces and top Government Officials. Alleged war criminals are showered with promotions and top posts in Security Sector and Government Departments.[eg. Major General Shavendra Silva, Major General Kamal Gunaratne]
 Presidential pardons to convicted Intelligence Officials including Sergeant Sunil Ratnayake sentenced to death in 2015 for killing eight civilians in the North in 2000. [Sergeant Sunil Ratnayake detained the four Tamil adults, three teenagers and one five-year-old in 2000, then cut their throats and buried them]
 Absence of internal laws in Sri Lanka to try international crimes like war crimes, crimes against humanity, violation of International Humanitarian Laws and human rights. It is certain that no Sri Lankan Government will dare bringing legislation to incorporate them in its judicial system. As such there will not be any internal judicial mechanism to investigate war crimes etc. in Sri Lanka.
 The Government’s open defiance and rejection of compliance with most of the UN Conventions dealing with human rights, accountability and justice including UNHRC Resolutions 30/1 and 40/1.
 An estimated 40,000 to 65,000 have disappeared during and after the war which includes the surrendered and those taken away by the military in military Buses and military Trucks. Now the President Gotabaya openly admitted that “They are all actually dead” to the UN Envoy in Colombo who visited him on January 17, 2020] implying the civilian killings in the hands of the Security Forces. This callous and casual statement by President Gotabaya confirms his intention to close this matter and shield the Security Forces for any liability and culpability. To redress the grievances of Tamils, United Nations has the option to set up Hybrid Courts or Ad-Hoc Tribunals as it has done earlier to deal with the question of genocide in East Timor, Sierra Leone, Cambodia and Kosovo. Ad-Hoc Tribunals can try individuals accused or core international crimes like war crimes, crimes against humanity and genocide, as done for Congo, Iraq, South Sudan, Syria and Yemen. It is to be noted that Hybrid Tribunals consists of foreign and domestic judges and usually operate within the jurisdiction of a state with its consent. However, Sri Lanka has already rejected this mechanism as interference in its internal matter and the option left is to seek United Nations to set up an Ad-Hoc Tribunal.
 The Draconian Prevention of Terrorism Act [PTA] 1978 is now vigorously pursued and will remain in force despite promises to European Union to restore GSP+ concession, United Nations and the International Community to repeal this Act.
Thus, with accountability and justice treated with disdain and almost buried by the Governments of Sri Lanka, there is no other option available for the Tamil victims of war to seek the shelter of ICJ which carries the responsibilities and functions as a beacon of hope for victims of state terrorism worldwide.
To open the doors of ICJ is not a smooth path for the victims of genocide in Sri Lanka. Gambia’s filing of a case in ICJ accusing Myanmar of Genocide of Muslim Rohinyas has set up a precedent for the Tamils for any UN member state to file a complaint of genocide against Sri Lanka. In this respect, one of the countries which co-sponsored the UNHRC Resolutions 30/1 and 40/1 bear moral and ethical responsibility to consider initiating this just process in ICJ. [USA, UK, Macedonia, Montenegro and Northern Ireland sponsors of UNHRC Resolution 30/1 with Sri Lanka also co-sponsored].
Out of these countries, United Kingdom holds the priority and leading responsibility to resort to ICJ on behalf of the Tamils in Sri Lanka. It can be stated that the proximate cause of the miseries and sufferings of the Tamils is due to the grave political blunder committed by United Kingdom in 1948 when granting independence, it handing over the power to majority Sinhalese without considering the history of Tamils and the existence of Tamil Kingdoms and failing to offer a two state solution within one nation. Furthermore, the UK government leaders including the Prime Minister and Opposition Leader have forthrightly spoken for the causes of Tamils including a two state solution by the Prime Minister in their Thai Pongal messages to Tamils. Therefore, it is high time for the Diaspora Tamils to get united together and function under one umbrella to mount a campaign to refer Sri Lanka to ICJ and/or to International Criminal Court [ICC] In this respect, Tamils living in United Kingdom and the Associations in United Kingdom carry the primary responsibility to take the initiatives to forge a United Front and exert maximum pressure on the UK Government and not allowing for the issues to fade away but keeping them alive and kicking with lobbying and interaction with UK Government opposition leaders and members of Parliament while enlisting the support of like minded Groups and Activists.
A win in the ICJ will lead to Security Council’s and a UNHRC’S involvement as well as United Nations to a referral to International Criminal Court [ICC} as well as worldwide positive reaction and possible isolation of Sri Lanka in the world community.