Feature Article

Sri Lanka, acid test for International Law

[TamilNet, Sunday, 07 February 2010, 23:15 GMT]
The widespread systematic pattern of crimes committed by the Sri Lankan state against Tamil civilians, particularly during the first five months of 2009 in the Northeast province, constitute violations of international humanitarian and human rights law, legal scholars have said. During this period, indifference exhibited by the international community, including the United Nations, led to the deaths of more than 30,000 Tamils. The strong transnational expatriate Tamil community now has the burden (a) to prevent Sri Lanka from erasing the massacres from historical record, (b) to resist attempts by international powers to persuade Tamils for reconciliation without establishing justice and accountability for the crimes, and (c) to seek justice for tens of thousands of Tamil victims by charging Sri Lanka of war crimes and genocide against Tamils in world courts.

The hidden massacre Sri Lanka's
final offensive against Tamil Tigers:
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The global focus on the suppression of the LTTE and Sri Lanka's 'democratic' processes, has deliberately neglected and continues to side-step the state-sponsored campaign of jus cogens norm violations which ended the conflict, a campaign in which Sri Lanka was widely reported to have engaged in ethnic cleansing, and committed war crimes, crimes against humanity, and acts of genocide.

Given the failure of the international community's responsibility to protect the Tamil people during the slaughter and during the post-massacre collective internment in Manik Farm, new national and transnational litigation strategies must be explored by all actors supporting the cause of Tamil justice so that substantive remedy can be afforded to the thousands of Tamil victims.

Military supervised internment camp in Vavuniyaa (Photo: The Times, UK)
Military supervised internment camp in Vavuniyaa (Photo: The Times, UK)
The global Tamil Diaspora can play a central role in this movement, counterbalancing the complicity through act or omission of the Sri Lankan state and multilateral human rights organizations, such as the United Nations, in the perpetration of the Vanni Massacre, the justification of post-massacre collective internment, and subsequent de facto policy designed to gradually erase this massacre from Sri Lankan and international history.

World at large has witnessed unambiguous lack of political will by powerful actors in the international scene to force independent investigations into Sri Lanka's violations of international humanitarian law during the last phases of the war. Tamil Diaspora remains the only entity that can act as a catalyst in initiating legal actions on war-crimes that will decisively expose the character of Sri Lanka state. Moreover, unlike circumstances surrounding the earlier anti-Tamil pogroms in 1956, 1958, 1977, 1981, and Black July, at the end of Eelam IV the Eezham Tamil community is geographically spread out in sufficient strength, and individuals are generally beyond the reach of State's intimidatory tactics and threats to individual's and their families' safety.

Almost all western countries have either signed, or respect international human rights treaties, and every Tamil who is either directly impacted by the SLA campaign, or indirectly impacted by the death or serious injury or detention of a relative, is likely entitled to fundamental rights and freedoms arising from these obligations by his/her country of domicile.

Interview with Philip Alston
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Courtesy: Channel-4
Historically, Tamil justice has been conceptualized as realizable only through Sri Lankan national judicial institutions, whose power and independence have chronically been compromised by the pervasive influence of executive encroachment and Sinhala-Buddhist majoritarian culture.

Exploring a new, necessary path to address the legacy of abuse and injustice suffered by the Tamil people, the Tamil Diaspora can initiate legal action from outside of Sri Lanka for egregious crimes against Tamils committed inside Sri Lanka by the state or its agents.

Through either the extra-territorial application or exercise of universal jurisdiction of non-Sri Lankan national laws or international laws, the Tamil Diaspora can potentially organize to initiate a multi-pronged criminal and civil legal action agenda from multiple nations outside of Sri Lanka, to either support future international efforts in this regard if they are to emerge, or contrarily, to pressure and force legal action and Tamil justice at national, regional, and international venues where government or multilateral institutional involvement suggests exoneration of the Rajapakse administration or the Sri Lankan state is a preferred policy objective.

Hierarchy of venues available for legal action
Hierarchy of venues available for legal action [Illustration by TamilNet]
Venues available to diaspora to mount legal actions fall into three broad categories, international, regional, and national judicial institutions.

With regard to filing a claim against the state based on state criminal responsibility, the main venue available is the International Court of Justice (ICJ), where procedures allow only member states of the ICJ to to file a claim against another member state. Here, Tamil expatriates should lobby to identify a willing State to file charges against Sri Lanka.

National courts that support extra-territorial/universal jurisdiction AND which allow exceptions in their domestic laws for state immunity, also are suitable venues.

With regard to filing a claim against an individual or group based on individual criminal responsibility, multiple potential venues where claims against individuals in the Rajapakse administration can be brought or initiated by the transnational Tamil Diaspora.

International Criminal Court (ICC), which exercises jurisdiction based on the Rome Statute, primarily have complementary jurisdiction over Nations who are signatories to the Rome Statute. Sri Lanka is one of several South Asian countries that are non-signatories, and therefore, enjoys some level of protection. However, the Office of the Prosecutor can be directed by the U.N. Security council to investigate egregious crimes against nationals of a non-signator State.

National level action should focus on countries whose judicial system provides extra-territorial or universal jurisdiction. Countries where there is well-established precedent including Norway and Spain, is where efforts should begin first.

Once the legal forums are identified and a committed diaspora structure is setup to pursue legal remedies, logistical issues particular to different country of action need to be considered before moving to more labor intensive actions.
  1. Legal action will first require evidence collection mechanisms which will collect, consolidate, and standardize the available fragmented body of evidence available in Sri Lanka and in the Tamil Diaspora, into multiple narratives establishing discrete counts of jus cogens norm violations, including war crimes, crimes against humanity, torture, and genocide. This phase is best done by expatriate volunteers recording audio/video evidence from victims (relatives), and then transcribe/translate into legally presentable affidavits for later notarization in the presense of the victims (relatives).

  2. This evidence collection body then will be able to feed evidence to legal constructions of these crimes based on the national laws of different non-Sri Lankan countries, such as France or Norway or Canada or the UK for example.

  3. The legal constructions of the crimes can then be operationalized into criminal and civil complaints, which in certain national jurisdictions can be filed, and in others can be lodged with the national judicial establishment where the Tamil constituency in that nation may lobby for the government to support furtherence of the criminal procedure. These legal constructions can also be pushed at international and regional legal venues.
Functional framework for legal action
Functional framework for legal action [Illustration by TamilNet]


This effort can be carried out in parallel in several countries. The transnational dimension of this effort arising from the the geographic distribution of the Tamil Diaspora allows for engagement regional/international venues and generally plays to the advantage of holding the GoSL accountable by providing multiple legal venues to file legal action.

Diaspora will also be indirectly internationalizing the Vanni massacre in a manner outside the capacity of the GoSL to suppress.

Diaspora activists who take up the legal action will face several challenges. While there are many avenues for the Tamil Diaspora to deliver Tamil justice, a clear understanding of the following challenges is imperative to sustain the process until successful legal results are achieved.
  • Legal procedures are lengthy multi-year processes and will not deliver Tamil justice over night.

  • Jurisdictional complexities may provide legal challenges in certain national courts that exercise extra-territorial or universal jurisdiction over certain crimes.

  • If jurisdictional hurdles are overcome, defense arguments on non-exhaustion of domestic remedies or forum non conveniens are likely to be raised, and convincing legal arguments should be crafted to convince the courts to allow criminal/civil procedure to advance.

  • Sovereign immunity and/or head-of-state immunity are also impediments to legal action against individuals with military command responsibility over the Vanni massacre. In the cases of individuals who have been removed from the their official positions, such as Sarath Fonseka or other military commanders, sovereign immunity will not be a valid defense. For others still holding official positions, such as Gotabhaya Rajapakse, or Mahinda Rajapakse, for the class of crimes constituting non-derogable peremptory norms under customary international law, sovereign or head-of-state immunity defense is not unconditionally accepted as a refuge of immunity. The legal theory to pursue the prosecution of President Mahinda Rajapakse for jus cogens norms violations perpetrated during at least January-May 2009, will be partially based on precedent-setting instances of litigation rejecting the head-of-state immunity defense, including concurrent criminal and civil litigations in the U.S. and Europe against Chile's Pinochet, Republika Srpska's Milosevic, and Liberia's Charles Taylor.

  • Sri Lanka was able to exploit the generally pliant international community to destroy material evidence of the large scale killings that occurred during the critical early months of 2009. While courts will be sympathetic to spoliation arguments, evidence collection should be efficient and innovative, and will need to employ precedence setting techniques including the use of Satellite-based images.
Legal challenges might appear complex and difficult, but they are not insurmountable. Diaspora Tamils have the resources and know-how to successfully haul the Sri Lanka state into the global judicial net.


Chronology:


External Links:
ICJ: Boyle's submission to ICJ on Bosnia and Herzegovina
ICC: Rome Statute of the ICC
ICJ: International Court of Justice
EU: Legal information in Denmark, Norway, Sweden
ICC: International Criminal Court
IFPSL: Irish Forum for Peace in Sri Lanka
IACHR: Inter-American Court of Human Rights
ECHR: European Court of Human Rights

 

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