APPEAL TO UN HUMAN RIGHTS COMMISSIONER TO REFER SRI LANKA TO THE INTERNATIONAL COURT OF JUSTICE

                                                                               

PERPETRATORS OF HUMAN RIGHTS VIOLATIONS SHOULD BE BROUGHT TO JUSTICE

TAMIL ORGANISATIONS SAY TAMILS ARE SUFFERING ENSLAVEMENT

We, the undersigned representatives of the Tamil Diaspora, in exile from the island of Sri Lanka[1], submit this statement to responsibly convey to the member states of the United Nations Human Rights Council that neither a domestic mechanism nor a hybrid mechanism would be able to deliver justice to Tamil victims in Sri Lanka. We firmly believe that justice can only be meted out by referring Sri Lanka to the International Criminal Court.

In the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka[2] (March 31, 2011) it is stated inter alia: “Accountability also requires official acknowledgement by the State of its role and responsibility in violating the rights of its citizens when that has occurred.” When the State itself is implicated in international crimes, it cannot play any role in the administering of justice pertaining to those crimes. As the accepted legal principle holds, nemo judex in sua causa– an accused cannot be judge in one’s own case. 

The underlying nature of the conflict in Sri Lanka is a conflict between two nations, namely Sinhala Nation and Tamil Nation. Given that, for a State to play a role in its resolution, it must be neutral. However, as demonstrated by Sri Lanka’s history since “independence”, the Sri Lankan State, including the judiciary, overwhelmingly dominated by the Sinhala Nation, has failed to uphold even the appearance of neutrality. The judiciary has always been subservient to the political leadership when it comes to abuses against Tamils, and that is evidenced by all of the past Commissions of Inquiry. 

The mandate of the OISL is not limited to war crimes but also includes international crimes, which is further defined in Article V of the Rome Statute of the International Criminal Court as consisting of the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. Article II of the 1948 Genocide Convention defines genocide to mean “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.” By this very definition of genocide, the Sri Lankan State, controlled almost exclusively by the Sinhala ethnic group, will not be able to adjudicate any charge of genocide by the Sri Lankan State against the Tamils, whether as part of a hybrid mechanism or a domestic mechanism. Therefore, an outside, independent international mechanism is essential for a fair adjudication of the crimes which fall within the purview of the mandate.

It has been the belief in some quarters that the changing of the guard would result in change in institutionalized impunity in Sri Lanka. The Tamils have seen numerous regime changes since Sri Lanka becoming an independent State in 1948, and none of the regimes made any sincere effort to address Tamil grievances. The promotion of former Army Chief Sarath Fonseka to Field Marshal status and the recent appointment[3] of former Commander of the notorious 57th division, Major General Jagath Dias, as Army Chief of Staff, both of whom have been implicated in grave international crimes by reputable INGOs, is not only a slap on the face to the victims, but also to the principles of the UNHRC, an open flaunting of the accountability demanded of the Sri Lankan State. 

None of Sri Lanka’s domestic mechanisms, including the one that had the International Independent Group of Eminent Persons, has been successful. Accountability and justice are processes that must be credible in the view of the victims, ensuring the free participation of the victims, and complying with international norms and standards. 

Further, given that the exclusively Sinhalese Sri Lankan military apparatus is still intact, and given the intense militarization[4] of the North East where the Tamil victims live, the Tamils will continue to be fearful to participate in any in-country process.

Given the history and politics of Sri Lanka, a domestic or hybrid mechanism will not meet these standards and thus the only fair option is an international process led by the United Nations.

A hybrid tribunal can be useful, where a state has the will, but lacks the capacity to deliver justice. This is not the case in Sri Lanka, because there is no political will to prosecute members of the Sinhala Nation or to deliver justice to the Tamils. Even the Foreign Minister of Sri Lanka recently told the Southern constituency that they will set up a domestic inquiry “to clear the name of the army.” In fact, much of the upcoming parliamentary elections will revolve around precisely this issue. 

The present regime lacks the stability and capacity to uphold a prolonged trial of war crimes, crimes against humanity, and genocide. Such a trial, if held, will only intensify anti-Tamil sentiments and may result in anti-Tamil pogroms. The result will be diametrically opposed to what the accountability process hopes to achieve, namely non-recurrence, deterrence, healing and peace. The Secretary General’s internal report on the failures in Sri Lanka (the Petrie Report) gave birth to the Rights Upfront initiative, drawing lessons from Sri Lanka. The UN should not fail the Tamil victims yet again by instituting any mechanism dependent on the Sri Lankan State.

Meanwhile, the “One Million Signature Campaign,” a campaign to urge the UN High Commissioner for Human Rights to refer the OISL Report on Sri Lanka to the International Criminal Court, has surpassed its target. It also urges the High Commissioner to recommend continued action on Sri Lanka at the Human Rights Council. The one million signatures rejecting local and hybrid mechanisms also jibes with the recent survey results conducted by the Center for Policy Alternatives that found an overwhelming 84% of Tamils wanting an international accountability process.

With great respect for the Human Rights Council’s commitment and work to protect and promote human rights around the globe, to ensure justice and accountability, to build deterrence, and to ensure that injustices are never repeated, we would like to request the following action from the delegates of the thirtieth session:

A recommendation to refer the case to the International Criminal Court or an international accountability process, rather than support for a domestic or a hybrid judicial process.

Submitted by:

1. British Tamil Conservatives (UK)

2. British Tamils Forum (UK)

3. Illankai Tamil Sangam (USA)

4. International Council of Eelam Tamils (Canada-Norway-Finland-Denmark-Sweden-Holland-Belgium-Germany-France-Switzerland-Ireland-Italy-Australia-New Zealand and partner country Mauritius)

5. Pasumai Thaayagam Foundation (Green Motherland), (India)

6. People for Equality and Relief in Lanka (USA)

7. Southside FM Radio (South Africa)

8. Swedish Tamils Forum (Sweden)

9. Ministry of International Affairs - Transnational Government of Tamil Eelam (TGTE)

10. United States Tamil Political Action Council (USA)

11. World Tamil Organization (USA)

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[1] Tamils in Sri Lanka have been referred to as Ceylon Tamils for centuries. The 1972 constitution that changed the name from Ceylon to Sri Lanka was adopted without the consent of Tamils, and hence their reluctance to be called Sri Lankan Tamils. Over the past 3 decades, they have been calling themselves Eelam Tamils. Referring to them as Eelam Tamils also differentiates them from Tamil Nadu Tamils of South India.

[2] POE Report, pg iv http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

[3] Sri Lanka: New Army Chief a Blow to Justice. https://www.hrw.org/news/2015/05/17/sri-lanka-new-army-chief-blow-justice

[4] More than 18,000 people were taken away for interrogation by the Sri Lankan military at the end of the war. While few of these people have been released after undergoing torture and abuse in state custody, vast number of those remains unaccounted for. The Sri Lankan state continues to defy calls for a comprehensive list of those who were taken into custody.

OTTAWA PICTURES

(This picture of Blue Bells House of the old Jhugroo School where Globe's shopping centre is now situated. Some of the people in the picture are (Centre) From left: 1.Mr Gobind (who used to live in a house on the main road in the Uplands area of Ottawa), 2. Prithima Maharaj (daughter of Mr S S Maharaj), two girls I don't recognise, Mr Hiraman, Mr Moon Subrayen, two girls I don't recognise, and Mr D S Maharaj, the youngest brother of Mr S S Maharaj. Top from left: 1. The young boy who looks like Deeplall, whose family used to live in Maharaj Road, 2. Angela Naidoo, whose family used to live off Munn Road near the River; 3. one of the Naicker sisters (a sister of Barry Naicker) whose family used to live in a house near the Hiramans off Munn Road, 4. Kalimuthu (whose family used to live behind Hoosen's shop in central Ottawa), 5. Valiatham Moonsamy (whose family used to live in a small road at the far end of Uplands), 6. Ismail Dhooma, whose family used to live in a house at the corner of Maharaj Road and the Main Road, Janaki (who used to live in a house near Ramnan's in Kissoon Road), 7. A girl that I cannot identify. Front: (Subry (Mari) Subramoney and a girl's whose name skips me)

(Memebers of the Ottawa branch of the S A Red Cross: 1. Mr Bali (whose family still live in Munn Road), 2. (I do not recall this person's name but he and his wife used to occupy a house in the property of George Singh's family in School Road), 3. Chotu (whose family still live in a home near the former Ramnanan shop on the main road in the uplands area of Ottawa), 4. Mr Dicky Maharaj, brother of Mr S S Maharaj of Flash Clothing, 5. Mr Ramnanan (owner of Ramnan's shop), 6. Mr Padaychee who was an official of SA Red Cross (not a resident of Ottawa), 7. Subry (Mari) Subramoney (whose family used to live in a wood and iron home in Munn Road in those days). 8. Mr Moses ( who used to live in a house at the back of the t-room on the main road of the uplands area). class="separator" style="clear: both; text-align: center;">

Subry Govender News Pictures

(MOTOR SCRAP YARD AND TRUCK BUSINESS DESTROYING THE ENVIRONMENT IN OTTAWA, NEAR VERULAM, NORTH OF DURBAN)

(DELEGATES WHO ATTENDED THE TAMIL SRI LANKAN CONFERENCE IN DURBAN IN EARLY NOVEMBER 2015)

(BEACH ARTISTS SAY THE DURBAN MUNICIPALITY IS ROBBING THEM OF THEIR ART WORK AND LIVELIHOOD BY REFUSING TO ALLOW THEM TO CARRY OPUT THEIR ARTISTIC WORK WITHOUT PAYING A FEE TO BE ON THE BEACH. YET THERE ARE OTHER ANTI-SOCIAL AND UNRULY ELEMENTS WHO FREQUENT THE BEACHES TO PREY ON THE INNOCENT.)

(Photographer Omar Badsha, M S Roy (slightly blocked), reporter , Natal Indian Congress secretary R Ramesar, outside the Durban Prison in 1978 waiting to welcome Billy Nair who was released from Robben Island after 15 years in prison)

(Subry Govender interviewing the first Indian Consul General in Durban, Ms Reddy, at the SABC offices in Durban sometime after June 1994)

(Natal Indian Congress and anti-apartheid activist, Rabbi Bugwandeen, addressing a meeting in Asherville in the late 1970s and in the 1980s)

(Anti-apartheid advocate and later judge

(Anti-apartheid leaders, D K Singh and Archie Hulley, at a meeting of the non-racial swimming union in Durban in the 1980s)

(Mewa Ramgobin addressing an anti-apartheid rally in Durban in the 1980s) (SUBRY GOVENDER OUTSIDE THE HOSPITAL IN PRETORIA WHERE NELSON MANDELA WAS BEING TREATED BEFORE HIS PASSING IN 2013)

(PEOPLE ATTENDING NORMAN MIDDLETON'S FUNERAL IN JUNE, 2014)

(NIRUPUMA SUBRAMANIAN AT HER HOME IN CHENNAI, INDIA, IN 1995) (NHANGANIPHO ZULU)

(NHLANGANIPHO ZULU)

(VISIT TO THE VILLAGE OF MNTUNZINI WITH GERMAN COLLEAGUE, )

(MR MOSES ALLY, OWNER OF MARITZBURG CITY, AND COLLEAGUES AT THE FUNERAL SERVICE OF NORMAN MIDDLETON IN JUNE 2015)

(KENNEDY ROAD INFORMAL SETTLEMENT PICTURES)

(GOD IS ONE)

(GENEVIVE GOVENDER AND MAYA

(AFRICAN MIGRANTS AT A MEETING PLACE IN CENTRAL DURBAN AFTER BEING AFFECTED BY THE ZENOPHOBIA ATTACKS IN 2012)

(The late Mr R R Singh of Verulam)

(SOUTH AFRICANS OF INDIAN ORIGIN SPEAKING ABOUT THE ANC AND THE PEOPLE) BUTCH, MOODLEY, ALIMUTHU,

(DURBAN SINGER - PATRICK NGCOBO - WHO MASTERED TAMIL KARNATIC MUSIC BY STUDYING IN CHENNAI - DIED A DISAPPOINTED PERSON AFTER CLAIMING HE WAS FORGOTTEN BY THE PEOPLE)