by Thambu Kanagasabai, LLM [Lond.] Former Lecturer in Law, University of Colombo, Sri Lanka, January 11, 2020
There is no denying of the fact that Tamils in Sri Lanka have been at the receiving end since 1949, when power was transferred to the majority Sinhala Government. Successive Sinhala Governments continued and still continue the marginalisation of minorities to achieve their goal of a SINHALA-BUDDHIST STATE. Peaceful protests, non-violent and violent campaigns were ruthlessly crushed by the 99% Sinhalese dominated Security Forces.
The Government’s hidden agenda of GENOCIDE including STRUCTURAL GENOCIDE was set in motion from 1949 and culminated in a full GENOCIDAL WAR which ended in May 2009, with the elimination of the Liberation Tigers of Tamil Eelam [LTTE] from the Tamil political front and devaluing the subsequent Tamil national minded parties like the TAMIL NATIONAL ALLIANCE [TNA]
The end result of the war brought a drastic mindset deepening cleavage, mistrust and suspicion among the communities, with a mindset of Sinhalese as conquerors and Tamils , the conquered and vanquished. The fallout produced the feeling of defeat and end of the problems of Tamils as well as the end of any political initiatives to solve the 70 year old ethnic problem which remains intact and alive.
The reconciliation gestures and proposals initiated by Governments in power from 1956 were either nipped in the bud or scuttled by Sinhala opposition parties, Maha Sanga. Buddhist Clergy and Sinhala Extremist Goups. Sinhala nationalism, chauvinism, Buddhist hegemony and majoritarinism took control, shaping and determining the policies and politics of ruling Governments, which also relied on these slogans to outwit their opposing parties paying no heed to build a united nation with its citizens enjoying equal rights and opportunities with respect and protection for all languages and religions, faiths while prioritising electoral fortunes and wins.
The fall out of the failings of Sri Lankan Governments have led to the International Community and United Nations to focus on Sri Lanka’s role as a member observing the democratic norms of human rights, rule of law including accountability and justice, becoming a rare commodity in Sri Lanka which is dubbed as an island of impunity for Security Forces and top Government Officials who committed or continue to commit crimes of all kinds, political, economic and including war crimes, crimes against humanity etc.
The majority of victims clamouring for justice and accountability are the Tamils, victims of pogroms and genocide living in the North and East of Sri Lanka, their traditional and historical homelands.
The United Nations and UN Human Rights Council finally realized the severity of the situation in Sri Lanka concerning human rights and the results were the Resolutions in 2012, 2014, 2015 and 2018. The Reesolution of 30/1 of 2015 made 25 Recommendations with the approval of Sri Lanka for implementation. Almost five years have elapsed since then and Sri Lanka sits comfortably unconcerned with no attention and interest to respect UNHRC or United Nations regarding compliance of those Recommendations. It need not be stated that Sri Lanka has achieved its desired results with defiance and lame excuses to nullify those Recommendations, while compounding the miseries of victims and leaving them in a state of anguish and uncertainity.
The present government, adding insult to injury has indicated its rejection of 30/1 UNHRC Resolution, even any future involvement with United Nations and UNHRC. President Gotabaya Rajapakshe’s statement at a News conference on October 15, 2019 confirms this contemptuous stand when he said ‘ I CANNOT RECOGNIZE WHAT THE PREVIOUS GOVERNMENT HAVE SIGNED. WE HAVE TO MOVE FORWARD, WE HAVE TO FORGET ABOUT HANGING ON TO OLD ALLEGATIONS AND ALL THAT’.
All in all, United Nations and International Community should no more delay or defer taking appropriate steps against Sri Lanka to ensure its respect and compliance with the UN Charter obligations, and UNHRC Recommendations.
The steps that have to be taken in respect of Sri Lanka by United Nations, UN Human Rights Council and/or Security Council are:-
 The setting up of an UN sponsored independent International Ad-Hoc investigation mechanism like Yugosolovia, Cambodia and Rwanda.
 Referrals to International Court of Justice and/or International Criminal Court.
 A concerted relentless campaign justifying to hold a United Nations sponsored referendum based on self-determination.[ As in UN Charter.]
 A UN sponsored referendum like Kosovo, East Timor and South Sudan on the basis of the exercise of the Right of Self-Determination by Sri Lankan Tamils under Article 1 of UN Covenant on Civil and Political Rights 1966.
 Imposition of economic, political and diplomatic sanctions including diplomatic priviledges and visa restrictions to Sri Lankan Government Officials accused of war crimes etc.
 Invoking and enforcing the Universal Jurisdiction Clause against alleged war criminals when visiting a country which has acceded to this Provision.
Seeking the involvement and jurisdiction of the UN Organs International Court of Justice and/or International Criminal Court is not an easy task. International Court of Justice settles legal disputes between states and give advisory opinions on legal questions referred to by authorized UN Organs Specialized Agencies. The pending case instituted by Gambia against Myannmar alleging genocide committed on Rohinya Muslims in 2017 when they were forcefully expelled from Myannmar’s Buddhist Government, is a precedent for any UN member state to institute similar proceedings against Sri Lanka for the crime of genocide commited against the Tamils, a crime which is now confirmed and documented by United Nations and UN Human Rights Council.
The Diaspora Tamils shoulder this responsibility to initiate this step by soliciting and lobbying a friendly state which symphazises with the Tamils and endorses the just grievances of Tamils, like Great Britain and Canada. It is by no means easy but can be achieved with the help of Human Rights Groups and activists like Madam Sooka of International Truth and Justice Project [ITJP]and countries which sponsored the UNHRC 30/1 Resolution, USA, UK, N.Ireland, Macedonia and Montenegro.
The other step of referral to International Criminal Court is more difficult, since Sri Lanka is not a signatory to the Rome Statute. It can only be referred to International Criminal Court when UN Security Council resolves to do so under Section 1:3 B of Rome Statute, as has happened to Sudan and Libya. Great Britin being a Permanent Security Council Member, it could initiate it for approval by other Security Council Members, provided China and Russia all-time backers of Sri Lanka do not veto it.
However, the countries which sponsored the UNHRC 30/1 Resolution in 2015 shoulder an un-excusable and indispensable obligation and duty to ensure the implementation of this Resolution. Since Sri Lanka has miserably failed to honor its commitments and now reneging from this Resolution, the countries which sponsored this Resolution and subsequent Resolution 40/1 of 2018, particularly Great Britain and Canada should not shirk their heavy statutory responsibilities. Canada’s recognition of Genocide and British Prim Minister’s call for justice and accountability should not be allowed to pass or lapse without necessary accompanying follow up action by these two great world champions of Human Rights. Besides, European Union also plays an important role by watching Sri Lanka’s performance on human rights. It’s withdrawal of GST+ in 2010 is one example to haul up Sri Lanka. It is now more than necessary and important for the European Union to act on Sri Lanka viewing the present Government’s defying stand and progress towards for entrenching a SINHALA-BUDDHIST CHAUVINISTIC STATE in Sri Lanka.
Undoubtedly, Tamils worldwide have to spring into a unified and co-ordinated action spearheaded with campaigns and agitations preceded by propaganda/lobbying and dissemination of information as to the fate of minorities particularly Tamils who are targeted for liquidation as a race alone with their rich culture, language, history and traditions. Only a UN sponsored referendum can only put a break on the Sri Lankan Government’s genocidal program and the role of a united Diaspora Tamils Front who should preferably seek the support of Great Britin, Canada and European Union through proper pressure, contacts and lobbying.
In this respect, the various and several Tamil Associations functioning in several countries should actively involve and spare no efforts to press and impress upon the respective Government leaders to voice our rights and justify the call for a Referendum in Sri Lanka.