And Innovative Justice Mechanisms
by Anji Manivannan, ‘Opinion Juris’ Emerging Voices, New York, August 15, 2019
[Anji Manivannan is the Legal Director at People for Equality and Relief in Lanka (PEARL) and a Senior Programs Officer at the World Federalist Movement – Institute for Global Policy (WFM-IGP).]
May 18th marked the tenth anniversary of the end of the 26-year-long armed conflict between the Government of Sri Lanka (GoSL) and the Liberation Tigers of Tamil Eelam (LTTE). The GoSL’s victory came with the deaths of 70,000–140,000 Tamil civilians in the Vanni region, largely due to the deliberate military shelling of GoSL-designated “No Fire Zones.” Although the LTTE committed human rights violations (albeit on a smaller scale), only the GoSL perpetrated abuses with the specific intent to destroy an ethnic group, also known as genocide. In the decade since, Tamil asks have not always taken a front seat in the international theater, where genocide recognition is scarce and impunity for atrocities remains common.
Victim-centric justice requires listening to the most-affected population. Therefore, in accordance with Tamil demands, I argue for the need for recognition and investigations of allegations of the GoSL’s genocide against the Tamil people and for an independent investigative mechanism to facilitate and expedite criminal justice proceedings. The first section of this article describes the Tamil perspective on genocide and the handling of genocide allegations by the 2015 report of the OHCHR Investigation on Sri Lanka (OISL). The second section presents a legal analysis of the GoSL’s specific intent and acts of genocide. I focus solely on the politically charged crime of genocide because the international community has generally accepted that the GoSL may have committed war crimes and crimes against humanity. Finally, the third section proposes the timely establishment of an independent investigative mechanism as an innovative reaction to domestic impunity in Sri Lanka.
International Community’s Treatment of Genocide Allegations
Tamils have advocated for their harms to be called genocide for years, making a concerted push in recent times. This year, several federal, provincial, and city-levelCanadian politicians and British MPs joined in by labeling the atrocities genocide. International and cabinet-level policymakers, on the other hand, still refrain from using the “G-word” regarding the GoSL’s atrocities.
The dearth of findings and recommendations on genocide by OISL, the first independent, international human rights investigation into the atrocities on the island, may have effectively excused the international community from promoting critical discourse, let alone political recognition, of genocide. Genocide appears in the report’s section on applicable international criminal law, which defines the elements of genocide and outlines Sri Lanka’s legal obligations under the Genocide Convention. It is mentioned only once more when the report recommends the domestic criminalization of genocide. The report is silent on genocide allegations as well as investigations and prosecutions thereof. Its omission is unfortunate in light of the fact that 63 Tamil diaspora organizations, the Northern Provincial Council of Sri Lanka, and legal experts, academics, and organizations called on OISL to specifically investigate allegations of the GoSL’s genocide against the Tamil people.
The report neither justifies the exclusion of genocide allegations nor addresses the aforementioned pleas by affected Tamils, opening the investigation to criticism. Positively, in response to inquiries regarding OISL’s silence on genocide, OHCHR, including the UN High Commissioner for Human Rights, stressed that OISL’s findings do not necessarily signify the absence of genocide. The High Commissioner explained: “we didn’t have the full cooperation of the previous government, certainly, and not the cooperation of this government when it came to our investigation in the way that we wanted”; for example, OISL faced obstacles to gathering information, including “lack of access to Sri Lanka and witness protection concerns.” OHCHR therefore decided to delegate genocide determinations to criminal investigations that have yet to occur.
The disregard of Tamil demands and perspectives by policymakers and civil society is not new. During the military’s onslaught, Tamil sources provided updates that fell on deaf ears. For instance, it took years for international stakeholders to admit that the military killed tens of thousands of Tamil civilians, which Tamils on the ground had reported in real-time. While Tamils were identifying the GoSL’s atrocities as genocide against their people, international human rights organizations kept quiet, or actively rejected, even the risk of genocide (see, e.g., 42:19–45:00) despite UN guidance encouraging different actors to acknowledge when violations of international law may amount to genocide.
Evidence of the GoSL’s Genocide Against the Tamil People
Naysayers would do well to consider the legal analysis by independent legal expertsdetermining that GoSL superiors and military commanders possessed the dolus specialis (specific intent) of genocide with which it committed acts of genocide. Under international criminal law, the specific intent of genocide is the intent “to destroy at least a substantial part of the protected group.” “A substantial part” refers to a part’s numeric size and proportion of the whole group and its significance, including the presence of the protected group’s leadership within that part (Krstić, Appeals Chamber, para. 12). Given the parallels between the fact patterns in Srebrenica and the Vanni, jurisprudence on the Srebrenica genocide is an excellent starting point for proving the GoSL’s intent.
- Numeric size and proportion: Bosnian Muslims in Srebrenica were only a small part of the Muslim population in Bosnia and Herzegovina. By contrast, the 360,000 Tamils in the Vanni constituted 18% of the 2 million Tamils in Sri Lanka.
- Significance: The elimination of the Tamils in the Vanni was of “immense strategic importance” because their existence in the Vanni joined the Northern and Eastern Provinces into a contiguous de facto state of Tamil Eelam, which the GoSL sought to dismantle (see Krstić, para. 15).
- Presence of leadership: The Vanni was home to Tamil Eelam’s political, administrative, judicial, law enforcement, and financial branches. It was also the last stronghold of the LTTE, who governed Tamil Eelam and whose own leadership was killed by the military’s final offensive (Jelisić, Trial Chamber, para. 82).
With the aforementioned specific intent, GoSL superiors and military commanders perpetrated three acts of genocide during the final phase of the armed conflict.
- Killing: The GoSL encouraged Tamil civilians in the Vanni to relocate to the “No Fire Zones” that were then shelled by the military. This intentional shelling of the UN hub, hospitals (sometimes multiple times), food distribution lines, and areas near humanitarian organization ships were largely responsible for killing 70,000–140,000 Tamil civilians.
- Causing serious bodily or mental harm: Military shelling also maimed 25,000–30,000 Tamil civilians. In addition, state security forces raped and sexually mutilated hundreds of Tamil women and girls who were shot dead. Tamil men and women who were detained after crossing into GoSL-controlled areas are still subjected to sexual violence today.
- Deliberately inflicting conditions of life to bring about the group’s physical destruction: The GoSL purposefully understated the number of Tamil civilians in the Vanni to limit necessary food, surgical, and other medical supplies going into that area and to facilitate the deaths of survivors. Military shelling systematically displaced at least 300,000 Tamils in the Vanni, sometimes multiple times (see ICC Elements of Crimes, Art. 6(c)(4), fn. 4).
Ideally, such legal examinations would have advanced greater political recognition of genocide against the Tamil people or, at the very least, critical engagement on the question of genocide. Instead, international stakeholders have avoided these discussions, neglecting the views of Tamils and exacerbating their hopelessness and frustrations by supporting the GoSL’s failing transitional justice process under UN Human Rights Council Resolution 30/1 (2015).
Creative Responses to Impunity: The Independent Investigative Mechanism
On the heels of OISL’s report, the GoSL cosponsored Resolution 30/1, agreeing to fulfill 25 key commitments, including creating a judicial mechanism involving foreign judges, lawyers, and investigators. The UN Human Rights Council adopted Resolutions 34/1 (2017) and 40/1 (2019) to give the GoSL more time, but what it needs is political will. Following the passage of Resolution 30/1, the GoSL rejected its promises about justice, namely the participation of foreign judges and the prosecution of individuals it deems “war heroes.” The most recent progress reportof the UN High Commissioner for Human Rights was damning: “Sri Lanka has failed to seize the opportunity provided by the Human Rights Council” to achieve criminal accountability. Therefore, international actors have increasingly accepted the need for alternative, complementary avenues to justice, such as the use of universal jurisdiction and “some forms of international investigation and prosecution” as recommended by the High Commissioner. It should be remembered that Tamils expressed concerns about the GoSL’s inability to implement confidence-building measures on the justice issue within a matter of months after the adoption of Resolution 30/1.
Since international and Tamil perspectives may be aligning more and more regarding the GoSL’s failures and the need to innovate, the time is ripe to address Tamil demands. Creative responses to impunity following (non-criminal) findings of human rights violations have recently emerged in the form of independent investigative mechanisms to collect, consolidate, preserve, and analyze evidence and to prepare files in order to facilitate and expedite criminal justice proceedings as and when they occur. At the end of 2016, the UN General Assembly established the International, Impartial, and Independent Mechanism to assist in investigating and prosecuting perpetrators of atrocities committed in Syria. Last year, the UN Human Rights Council set up the Ongoing Independent Mechanism to perform similar functions concerning Myanmar.
There is already considerable civil society documentation regarding the individual criminal responsibility of GoSL superiors and military commanders (e.g., dossier on Shavendra Silva; dossier on Jagath Dias), several of whom have been subjected to legal action. U.S. lawsuits were filed against Shavendra Silva (dismissed in 2012 on diplomatic immunity grounds because he was a deputy UN ambassador at the time) and former defense secretary Gotabaya Rajapaksa (ongoing since April). A war crimes case under universal jurisdiction was filed against Jagath Jayasuriya, an ambassador at the time (filed in August 2017, after which Jayasuriya immediately fled to Sri Lanka). In other words, an independent investigative mechanism covering Sri Lanka could readily secure civil society cooperation and information as the foundation for constructing trial-ready files. Any evidence that supports a legal finding of genocide could be used to promote legal determinations in courts of law as well as increase political recognition by UN, lower- and cabinet-level state, and civil society actors in accordance with Tamil demands.
Tamils have finished their tenth year without a modicum of justice as a result of not only the GoSL’s lack of political will, but also an international reluctance to adequately prioritize Tamil asks and perspectives. Although the UN system acted relatively quickly to innovate the independent investigative mechanism model in Syria and then in Myanmar, it has yet to afford the same consideration to the Tamil people it systemically failed over a decade ago. Since time is the enemy of evidence-gathering, international legal experts and Tamil activists are urgently calling for the establishment of an independent investigative mechanism before physical evidence is destroyed and victims forget or die. At this juncture, the international community should adopt a truly victim-centric approach by listening to Tamils and authorizing an independent investigative mechanism to ensure the eventual delivery of justice and accurate naming of their harms suffered.