KAMALIKA PIERIS

The word genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 for the killing of Jews in World War II. Genocide was first recognized as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the  UN Convention on the Prevention and Punishment of the Crime of Genocide 1948. Sri Lanka    signed the Convention in 1950. .The International Criminal Court (est. 2002) which is specifically mandated to judge crimes of Genocide uses the definition given in the UN Convention.

The international legal definition of the crime of Genocide is found in Articles II and III of the 1948 Convention. There must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Also action must be taken to carry out the intent. A crime must include elements, intent and action, to be called “genocide.” If the government is to be blamed, it must be a part of state policy.

The four groups which need to be protected from Genocide   as stated in the UN Convention were, a ‘national’ group meaning a set of individuals whose identity is defined by a common country of nationality or national origin. An ‘ethnical’ group is a set of individuals whose identity is defined by common cultural traditions, language or heritage. A ‘racial’ group means a set of individuals whose identity is defined by physical characteristics. And lastly, a ‘religious’ group is a set of individuals whose identity is defined by common religious creeds, beliefs, doctrines, practices, or rituals.

The victims of genocide must be deliberately targeted.  The target of destruction must be the group, not individuals. Genocide can also be committed against a part of the group, as long as that part is identifiable”, such as within a geographically limited area and substantial.” The part targeted must be significant enough to have an impact on the group as a whole.”

The tribunals appointed to investigate Genocide in Rwanda and Yugoslavia   used these criteria. Genocide was declared in Rwanda, where there was a mass slaughter of more than 800,000 ethnic Tutsi between April and July 1994. But not in Bosnia or Serbia.

In the case of Bosnia, the Court held that deporting a group to make an area ‘ethnically homogeneous’ is not genocide. Deportation or displacement, even if done by force, does not mean destroying that group, the Tribunal said.  It was the same in Croatia. . The deporting of the Serb population in Krajina by Croatian leaders did not mean destroying the group.

The Rohingya issue in Myanmar is another high profile Genocide trial. Myanmar is being tried simultaneously by three separate tribunals, ICJ, ICC and Argentina. Gambia   reported Myanmar to the International Court of Justice for violating the Genocide Convention.  The ICJ is now hearing the case. In 2019, Aung San Suu Kyi appeared before the ICJ, where she defended the Burmese military against allegations of genocide.

The UN sent a fact-finding mission to Burma In 2018, to examine the Rohingya issue. This mission urged the UN Security Council to report Myanmar’s’ top military officials to International Criminal Court on the charge of Genocide. The UN Mission however stated that the standard of proof used was lower than that required in criminal proceedings”.  The ICC duly opened an investigation on Myanmar, for crimes against humanity in its dealings with the Rohingya.

Thirdly a universal jurisdiction case was filed in Argentina by the Burmese Rohingya Organization of UK.  Argentina then started a case against Myanmar’s head of state, Aung Sang Suu Kyi using universal jurisdiction.

Myanmar   told the UN General Assembly that it had no right to interfere in the internal matters of a country. Myanmar is carrying out its own investigation on the 2017 events through its Independent Commission of Enquiry.

 Myanmar appeared before International Court of Justice in December 2019. Myanmar said that expelling a group was not Genocide. There must be firm proof of Genocide. It is not enough to say that an action looks like Genocide. It must be proved to be Genocide and nothing else. Genocide must bethe only inference that could reasonably be drawn from the acts in question.

The standard for proving genocide is now quite high, and very challenging, observed Myanmar. Even evidence of mass atrocity is not enough today to meet the strict legal definition of genocide.

Now to the situation in Sri Lanka .The Tamil Separatist Movement   stated that the Eelam war IV was Genocide of the Tamil people. Ceylon Tamils were living in the north for centuries, they said. It was their homeland.  The Sri Lanka army came there, without reason and started killing innocent Tamils’ with the deliberate intention of carrying out Genocide. This is nonsense. The Eelam War IV was a civil war started by the Tamils themselves. The Sri Lanka army had a legitimate right to be there and to engage in military action.

There is/are no ‘Tamil people’ or ‘Tamil nation’ or ‘Tamil homeland’ in Sri Lanka.  The Ceylon Tamil”   is descended from    the   low caste, landless agriculture laborers who were initially brought in to Sri Lanka by the Dutch in the 18th century to work on the tobacco plantations in the north. The Tesawalamai was drawn up by a Dutch administrator, Claas Isaaks in 1707 and the Yalapana Vaipaya Malai was written in 1736, at the request of the Dutch governor.

The British followed the Dutch policy and more Tamil laborers came in to the north. Tamil immigrants were also brought in by the British to populate the Eastern province. This was deliberate. It was to replace the Sinhala villagers who were allowed to die. These newly arrived Tamils of the north and east, were given the label ‘Ceylon Tamil’ in the Census which started in 1871.  The ‘Ceylon Tamil’ is a bogus race invented by the British.  The concept of ‘Race’ is itself bogus                                 

The notion of a ‘Tamil nation’ and ‘Tamil homeland’ are    inventions of the Tamil Separatist Movement. They can be dated to the post independence period.  Tamil ‘nation’ has been taken from the utterances of Lenin. It is used to justify the civil war.

 The term ‘Tamil homeland ‘was used by the Tamil Separatist Movement to mean ancestral land or the place where a cultural, racial identity had been forged. The notion of a Tamil homeland    got publicity through the Union of Regions” proposal of January 1996.

The concept was promptly squashed. Historians showed that there was no historical basis for a Tamil homeland in Sri Lanka. The public laughed at the very idea. They wanted to know, is there any other ethnic group that has two homelands, one in Tamilnadu and the other in Sri Lanka.

The government of Sri Lanka has consistently denied that it engaged in genocide. Sri Lanka said that it has rescued 295,000 hostages and rehabilitated 12,000 former LTTE cadres.

Sri Lanka government has   also challenged the use of the word Genocide for the Eelam war. The term has specific legal connotations, and the United Nations, which has codified the concept of ‘genocide’, has never used it in relation to the Sri Lankan conflict, nor has the term been used by any of the UN’s subsidiary bodies, including the UN Human Rights Council, Sri Lanka said.

The Paranagama Commission stated firmly that after many months of investigation and after consulting top legal experts, it had concluded that there is no     evidence to support the charge of Genocide. The Paranagama commission rejected the suggestion that civilians were targeted by the SLA as part of an alleged genocidal plan.

The Paranagama Commission also pointed out that the term ‘genocide’ is a legal concept with a very precise and definite meaning and scope of application. The International Court of Justice rejected claims of genocide by both Croatia and Serbia making it plain that the crime is only made out if it is proved that the perpetrators acted with specific intent to destroy physically the group concerned

Analysts pointed out something else in this Genocide claim.  If 40,000 were killed at Nandikadal in the last weeks of Eelam War IV, where are the bodies? If genocide of 40,000 occurred in the last weeks of Eelam IV, mass graves of 40,000 killed must emerge.  In every country where there have been “system crimes” invariably mass graves have been found.

It’s been ten years since the end of the war, but no mass graves have been found.Even the Northern Provincial Council under Wigneswaran, which charged the government with genocide, has not succeeded in finding mass graves. The Mannar mass grave, which was excavated with great expectations contained skeletons that have been carbon dated to the Portuguese era. 

Analysts observed that it would not have been possible to conceal the piles of skeletons or mountains of ashes of 40,000 bodies in an area like Nandikadal, which is not heavily forested. Also,   if the skeletons existed, then they would have been found during the mine clearing operations. (Continued in A2)