Dharshan Weerasekera

The TNA-led Northern Provincial Council has adopted a resolution accusing successive Sri Lanka Governments of committing Genocide” against Tamils, and asking the UN High Commissioner for Human Rights to investigate these matters.

In my view, this latest move by the NPC is designed to advance the Eelam agenda in a very specific way, namely, to lay the groundwork for a demand for a referendum on secession, to be made through the UN, or one of its subsidiary organs.  I shall briefly explain how the aforesaid referendum will be brought about, and make some recommendations as to what the Government ought to do, before it is too late.

i) Why the NPC (and Eelamists in general) are fixated on Genocide”

In order to understand the general reasons why the NPC (and Eelamists in general) keep harping on Genocide” it is necessary to appreciate the role that the international law concept of self-determination of peoples” plays in the overall Eelam agenda.  To put it succinctly, that concept is the very linchpin of the aforesaid agenda.  I’ll first briefly explain this matter.

The Canadian Supreme Court, one of the world’s distinguished courts, considered the question of the self-determination of peoples” in its landmark ruling in Reference re Secession of Quebec (1998) 2 SCR 217.  In the course of that ruling, the court reviewed the relevant international law that pertained to the conditions under which a people could legitimately demand a separate state (i.e. unilateral secession) by invoking the international law concept of self determination.”

The court concluded that there were three situations where unilateral secession could be justified.  Here is what the court said:

A right to secession only arises under the principle of self-determination of peoples at international law where a people” is governed as part of a colonial empire; where a people is subject to alien subjugation, domination or exploitation; and possibly where a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.  A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that integrity recognized by other states.” (para. 154)

The Canadian Supreme Court, as I have indicated, is a world-class court, and, since it reviewed all of the relevant law on self-determination” when reaching the aforesaid interpretation, it is reasonable to presume that, were any other courts, including Sri Lankan courts, to review the same material, their respective interpretations will not differ drastically from the one reached by the Canadian court.  Hence, for all practical purposes, we can take the Canadian Court’s interpretation as authoritative, on the related matters.

To repeat, then, the three situations that would justify secession under the principle of self-determination” are:  formal colonial occupation; alien subjugation, domination and exploitation”; and three, possibly where a people” are denied any meaningful exercise of their right to self determination” within the existing state, which is to say they are completely deprived of any chance to participate in government, to enjoy their other rights as citizens.

Let’s now turn to Sri Lanka, and put ourselves for a moment into the shoes of a Tamil separatist.  Under which of the aforesaid scenarios would a separatist have the best chance of claiming a separate State within Sri Lanka, by invoking international law?  (Note, the principle of self-determination” is an ergo omnes principle in international law, which means that, if the claim is justified, the international community has to support it.)

I’ll go through each of the three scenarios.  The first scenario obviously doesn’t apply to the Tamils, since they are not under any sort of formal colonial rule by the Sinhalese.  The third scenario is also of very little help, since, no reasonable person would accept that the Tamils are completely deprived of the ability to participate in government, either as representatives or as voters, or to enjoy their other rights as citizens.

The very fact that Tamils voted in record numbers at the recent Presidential Elections, and played what may well have been a decisive role in the final outcome, would lay to rest any claims that the Tamils are deprived completely of any ability to participate in the democratic life of the country.

As for being deprived of other rights, say, of education, or being able to rise in the professions, there are Tamils in all of the professions, and frequently, occupying the highest positions.  We have had Tamil Attorneys-General, Chief Justices, Deans of the various colleges in the universities, heads of organizations of medical doctors, and so on.

So, as I said, no reasonable person (especially any foreign observer) would be able to say that the threshold has been reached in Sri Lanka, where the Tamils can pursue secession under third scenario discussed above.  That leaves the second scenario:  alien subjugation, domination and exploitation.”  And this is where the claim of Genocide” becomes useful.

If the Eelamists can show that the Tamils in this country have been subjected to genocide, i.e. that they have been subjected to systematic attack and decimated as a people, and also that there is a specific area of land inside the country that is a traditional homeland of Tamils,” it would naturally raise the presumption that they have a right to self determination” in the aforesaid homeland,” (in order to escape the alleged genocide).

It should be noted, meanwhile, that the Eelamists’ claim of Genocide” is invariably accompanied by a claim of Colonization,” i.e. that successive Sri Lanka Governments have been systematically imposing illegitimate Sinhalese settlements on Tamil Lands.”  (The Genocide Letter” to the UN Human Rights High Commissioner in August 2014, by 28 members of the Northern Provincial Council and 5 members of the Eastern Provincial Council, contained both of the above charges.  So does the NPC’s resolution)

To repeat, then, the genocide claim, coupled with the colonization” claim, is the Eelamists’ only way to agitate for a separate state, using international law.  If the Eelamists can make a prima facie case for Genocide” and Colonization” (and, in the absence of a strong reply by the Government to such charges, a prima facie case is almost presumed) they will be able to get the issue of Tamil self determination” into the agenda at international forums, including the UN and its subsidiary organs.

ii) The role of the UNHRC investigation in advancing the Eelam Agenda

I shall now turn to the UNHRC investigation currently underway, whose final report was to be released next month, but has been postponed to September.  It should be noted that the Eelamists have seen this investigation all along, as something that could serve two purposes:  one, to gain a measure of revenge against the persons responsible for defeating the LTTE; and  two, to get the issue of Tamil self determination” on the UN agenda.

Here, for instance, are some observations of V. Rudrakumaran, the prime minister” of the Transnational Government of Tamil Eelam, in April 2012:

The Tamil Struggle in Sri Lanka for an independent and sovereign state has two dimensions.  One is to create conditions for international recognition and full realization of the Tamils’ right to self-determination and the other to bring to light what happened in the final stages of the war in 2009….The Tamil, community has widely succeeded in focusing the attention of the world’s nations on the war crimes and genocide perpetrated on Vanni soil by the Sri Lankan Government….After justice is done to our people, we want the UN to deliberate, similar to deliberations pertaining to Kosovo, about measures that should be taken to prevent recurrence of genocide on the island of Sri Lanka….And we hope that the UN will organize a referendum to ascertain the will of the people of the North and Eastern parts of the island.”  (As Tamils have been subjected to Genocide, V. Rudrakumaran urges UN to organize and Eelam referendum,” 4-4-2012, www.tamilinsight.com)

To turn to the investigation, all indications are that its final report will conclude that the Government committed war crimes during the last phases of the war, and recommend that tribunals be set up to pursue these matters.  It is reasonable to presume that, based on the aforesaid recommendation, the Council will ask the General Assembly to launch the related tribunals.

I must now digress a moment and discuss an important case of the International Criminal Court (ICC) that is pertinent to the present discussion.  The case is:  Al Bashir, Judgment on the appeal of the Prosecutor against the Decision on the Prosecution’s Application for a warrant of arrest against Omar Hassan Al Bashir,” (The Appeals Chamber, ICC-02/05-01/09-73(3 February 2010).

The elements of the case relevant to the present discussion are as follows.  In 2009, the Pre-Trial Chamber of the International Criminal Court issued an arrest warrant against Omar Hassan Al Bashir, President of Sudan, for complicity in war crimes committed by his Government in Darfur, between 2003-2008.  The Prosecutor also laid genocide charges, but the Court refused to accept these, saying that evidence sufficient to prove genocidal intent had not been presented.

The Prosecutor appealed against the above ruling, and the Appeals Chamber overruled the Trial Chamber.  The Appeals Chamber said that, at the Pre-Trial stage, the Prosecutor did not have to prove the genocide charge, for instance, by showing that genocide was the only possible inference, given the evidence:  all he had to do was to show that there was reasonable grounds to believe” genocide took place, which is to say, genocide was a possibility, given the evidence.

 

Based on the above ruling, the Trial Chamber amended the arrest warrant previously issued against Al Bashir, to include the genocide charge.

 

Let’s now turn to the prospective Tribunals against Sri Lanka.  (Sri Lanka is not a signatory to the Rome Statute, and cannot be taken to the ICC, hence, the need for a Special Tribunal.)  In any event, the point is this.  Once the Tribunal is established, the next step will be the issuing of arrest warrants.  At that juncture, the Prosecutor (no doubt with the required encouragement from the Eelam Lobby, along with their friends” the U.S. and U.K.) can push for genocide charges to be added to the war crimes charges.

 

Based on the Al Bashir ruling cited above—and there’s no reason to think it will not apply to the Tribunal—it is likely that the Tribunal will indeed add the genocide charges to the war crimes charges (as long as the Prosecutor provides some evidence that genocide may have been a possibility) and issue the arrest warrants.  If that happens, the Eelamists will have succeeded in getting the issue of possible genocide against the Tamil people on the UN’s agenda.

 

Of course, genocide will have to be proved, if it is to have any legal consequences for Sri Lanka.  But, I believe the Eelamists and their friends” are not interested in proving anything.  What they are after is the political and diplomatic leverage of having the genocide-issue merely in the UN agenda, which will allow them to move to the next step in their overall game-plan, namely, the call for a referendum on secession.

 

iii)  Possible ways the Eelamists will exploit the genocide-issue once it is inserted into the UN agenda

 

I see two possible scenarios:

 

1. a) Once genocide charges are added, and arrest warrants issued against key Sri Lankan war-time leaders, the Eelamists and their friends” will start a massive propaganda campaign—similar to the 40,000 dead” campaign pushed the present investigation—to persuade the outside world that genocide has in fact been committed against Tamils.

 

Most foreigners are relatively unfamiliar with the situation of Tamils in Sri Lanka, particularly the fact that they were a privileged minority in this country during the colonial era, and that, if there has been a diminution in their fortunes, it has been in terms of making them more equal with the other ethnic groups, particularly the Sinhalese.

 

The propaganda campaign  will highlight the fact that the UN has issued arrest warrants against key Sri Lankans for committing genocide” during the war, and insinuate that what was (allegedly) done during the war is only symptomatic of how Tamils have been treated since, say, independence.

 

Then, with that as leverage, an exploratory resolution can be introduced at some UN forum—similar to the way the first exploratory resolution on the investigation was introduced at the Human Rights Council in 2012—which will set out the idea of a referendum for secession, and asking the Secretary General, or the High Commissioner, to prepare a report on the matter.

 

1. b) Since the investigation’s final report has now been postponed to September, that report can incorporate whatever information is generated through any domestic mechanism” between now and September, and, based on that new” information, directly recommend an exploratory resolution on the question of a referendum

 

Either way, the point is to get an exploratory resolution that raises the issue of a referendum on secession.  After that, it’s a matter of ratcheting up the pressure—just as was done with the present investigation—until a final resolution is passed that explicitly calls for the referendum in question.  If this juggernaut is to be stopped, it has to be done now, before the exploratory resolution is introduced.

 

1. iv) Recommendations

 

I have 3 recommendations

 

1. a) One or more Provincial Councils where the Sinhalese are a majority must adopt a resolution denouncing the NPC’s resolution, and also giving a point-by-point refutation to the document the NPC had reportedly annexed to the resolution, which gives the NPC’s reasons foe considering that Tamils have been subjected to genocide.

 

Both the resolution and accompanying refutation must then be sent to the UN Human Rights High Commissioner.  This will put the High Commissioner officially on notice that the NPC’s claims are being actively disputed by other Sri Lankans, and also acquaint him with the arguments of those others.

 

Once the High Commissioner is officially made aware that Sri Lankans are disputing the NPC’s claims, he can’t issue statements supportive of the NPC’s position, or take any action that promotes the latter, because he would be violating Article 2(7) of the UN Charter, which prohibits interference in the internal affairs of members.

 

1. b) The President must immediately appoint a Commission of Inquiry to undertake a comprehensive investigation into the Genocide allegation.

 

The Commission must probe, among other things, into whether there’s any objective and verifiable data to substantiate the view that Tamils have been subjected to genocide for the last sixty years such as whether there has been a marked decline in the Tamil population, whether there are marked disparities in the quality of life indices between the Tamils and the Sinhalese (in access to education, health services, employment, and so on), and produce a comprehensive assessment, that can be presented at international forums, if needed

 

The existence of a Commission such as the above would mean that Sri Lanka has in place a domestic mechanism looking into the Genocide” allegation, which means the UN can’t start looking into it, without risking a breach of Article 2(7)

 

1. c) Parallel to the aforesaid Commission, the President should initiate a second Commission of Inquiry, to investigate the possible ethnic cleansing of Sinhalese and Muslims from the Northern Province since the time of independence. This Commission should definitively establish, among other things, the following:  how many Sinhalese and Muslims were living in the Northern Province at the time of independence, how many Sinhalese and Muslims are living in that Province now, and what happened to those people in the intervening years.

 

Such a Commission will, again, ensure that the UN can’t start looking into the Genocide” allegation, without risking a breach of Article 2(7).  Meanwhile, information generated by the Commission will be invaluable in changing the outside world’s perceptions about what has really been going on in the North and East of the island since independence, and, in the long run, will be one of the most effective ways of putting an end to allegations such as the ones presently being made by the NPC.

 

 

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)