ERASING THE EELAM VICTORY Part 21Hb
Posted on August 1st, 2021

KAMALIKA PIERIS

2nd Revision  6.8.21

REPARATION

In 2005, the UN General Assembly passed a  Resolution titled Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”  (General Assembly resolution 60/147 of 16 December 2005) .

This UNGA Resolution defines victims” as persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, and economic loss in war, due to gross violations of International Human rights law (IHRL) and International Humanitarian law. (IHL) The Resolution says the safety and needs of such victims and their families must be looked after. IHRL and IHL are directed mainly at wars between nations, not internal warfare.  Due to this, the Resolution   says nothing about violence by non-state groups, such as LTTE.

This Resolution is about those caught up in the war, involuntarily. Not about civilians who take part in the war.  The Tamil civilians in the north supported the LTTE. LTTE were engaged in   high treason, considered the worst crime of all. Therefore, Tamil civilians are not persons innocently caught up in a war. They are complicit”. Complicit means involved with others in an activity that is unlawful or morally wrong.” This means Tamil civilians do not qualify under this Resolution.

Tamil civilians  had acted as spies for the LTTE . They had reported on troop moments. They visibly supported the LTTE at the final phase of the war. in 2009 The Tamil civilians marched in huge numbers towards the war zone in Putumatalan area on the orders of the LTTE.  They went  willingly.  20,000 LTTE could  not have forced 330,000 civilians to follow them . The Tamil civilians cooperated , because they thought the LTTE would win,. Interviewers reported  later that many  had believed that the West would intervene and save them and the LTTE. 

The whole family, including aged relatives, made the journey. They went in buses, cars, and on foot. As late as 2012 it was possible to see large piles of corroding motor vehicles, motor cycles, and bicycles, parked on top of each other on either side of the road .  There were large swathes of land with thousands of abandoned plastic vessels, cooking utensils, clothing, shoes children books, and other personal items strewn around.

The  Tamil civil sins did not go on this journey empty handed. It was reported that the IDPs who came across at Puthumathalam, fleeing from the LTTE came with their land deeds tightly held.  They also carried millions of rupees in cash and gold securely wrapped in pottanis. 

In Pudumatalan, LTTE used the Tamil civilians  to form a defense that would  hold back the government forces and allow an international rescue operation by sea carried out by  Norway and USA to take place. The  civilians  became a buffer, a   human shield. Acting as a ‘buffer’ or  human shield, is considered a  criminal act.

Also, the civilians   dug trenches, prepared bunkers and helped  build  the  formidable earth bunds  which  protected the LTTE .  The civilians also did sentry duty,  and carried supplies. Each family was allotted  specific tasks like building bunkers, the civilians said.

ICRC rules say Civilians  caught up in a war are entitled to protection under International law.. But civilians taking direct part in hostilities lose that immunity. Since they had directly participated in hostilities, the Tamil civilians  were not entitled to protection as civilians. They had forfeited that protected status. Since these Tamil civilians supported the military efforts of the LTTE, they lost the protection offered to non combatant civilians under International Humanitarian Law.. 

The  UNGA Resolution permits a victim  to seek judicial remedy”. But the Tamil civilians have not gone to courts, for the simple reason that they   have no case. If they go to court the fact that they were complicit will emerge.

 The Resolution says victims are entitled to reparation for acts committed by the state. Reparation must be paid by the state and it should be proportional to the violations and the harm caused. The Tamil Separatist Movement and its NGOs, the UNHRC and its High Commissioner have    latched on to this issue of Reparation. They demand reparation from the state for their ‘innocent Tamil civilians’ caught up in war.

OISL report recommended reparation, the UNHRC included reparation in its resolutions on Sri Lanka and Tamil Separatist Movement keeps talking about reparation. ICES conducted discussions in Jaffna, Trincomalee, Colombo and Galle on reparations. These discussions were published in the ICES monograph, Memorialisation and reparations, report of four dialogues” (2016)

This UNGA Resolution   says victims must be provided with full reparation. Full Reparation” means restitution, compensation, rehabilitation and   guarantees of non-recurrence.  Restitution” includes returning the victim to his original situation and residence, restoring his liberty and   family life, giving back his employment and his property.”Non recurrence” includes legal action against those who were responsible for the violence”; this means ‘war crimes.’

The Resolution also, inter alia, called for several other actions,   which have been recognized in Sri Lanka. They are, searching for the disappeared, finding bodies of those killed, issuing a public apology and permitting tributes and memorials to the LTTE.  Analysts observe that the process of tracing people and identifying human remains after many years is extremely difficult. The government of Sri Lanka under Mahinda Rajapaksa has never apologized for the Eelam wars, as far I know and it was opposed to commemorations of the LTTE.

Everyone who has been a victim is entitled to reparations, said Jehan Perera. Where reparations are concerned, the victims do not have to confront those who did wrong by them. Nor will they be required to speak up before the general public and before commissioners. Victims can receive reparations on the basis of already existing evidence. The advantage of reparations is that they can be determined administratively, and not through a legal process where the burden of providing evidence lies with the victim.

The Yahapalana government, which was a puppet government of the USA, passed the Office for Reparations Act No. 34 of 2018. This repealed the Rehabilitation of Persons, Properties and Industries Authority Act No. 29 of 1987. (REPPIA).The new Act would identify persons eligible for reparations and give reparation.

In 2018, D.M.Swaminathan had for three weeks in a row, submitted a Cabinet Paper which proposed to pay reparations for families of dead LTTE cadres. The Cabinet Paper had been deferred twice but on the third occasion, due to protests from ministers, was stopped for good, reported the media. The Cabinet  paper had proposed to compensate those affected by the war, including civilians, places of religious worship and the families of dead LTTE cadres.

 The present government, Pohottu, plans to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons, said Jehan Perera in 2021.

MISSING  PERSONS”

After the war ended the Tamil Separatist Movement encouraged the ‘innocent Tamil civilians ‘ in the north to start protesting about ‘’Missing persons’,  who had ‘Disappeared’ due to the war, most likely   killed by the army. Almost every family had lost a relative in the war, said analysts.   A villager living near Udaiyaarkadu hospital  had told Rajiva Wjesinha  that  he had 5 brothers and all survived the conflict except the one who joined the LTTE.

In 2010 the  LLRC  received   1,018 complaints of persons who had disappeared  due to the war.  In 2015, Presidents Commission to Investigate Complaints regarding Missing Persons (PCICMP),received 23,099.  5000  were from the army.

R. Sampanthan, said that TNA had conducted its own investigations and found that there were at least 350,000 to 400,000 people in the Nanthikadal area in the last stage of the war. Only 290,000 people came out. What happened to the rest.

The    figure of 400,000 was  promptly shot down. This count, provided  By the Government Agent, Mullaitivu and Bishop of Mannar was not the count for Nanthikadal in  the last phase of the war, said Ladduwahetty. Further, the   figure of 300,000 was not  an invention of the government. The figure was  determined by the government  jointly with the  international agencies working in the area, such as   ICRC and  World Food Programme  .

Tamil Separatist Movement  said that scores of persons had disappeared  after they were   handed over” to the military by their families soon after the war ended.  “If a mother handed over her son to armed forces or a police officer she wants to know what happened to him. It is a legitimate demand”, said R. Sampanthan.  For the Tamils these were not LTTE , they were sons, husbands, wives, daughters, kin neighbors and friends, said a supporter, emotionally.

.I saw at first hand at a recent meeting the powerful sentiments of a people who have lost their loved ones and found no answers  from the government, said an activist  . One mother said that she had surrendered her son to the military at the end of the war and she wants to know what has happened to him. She hopes he is still alive. Other people’s  sons had been returned.

Many if not most of them continue to hope that their loved ones are being held in some place of detention, Whenever government authorities tell them that there are no such places they get highly agitated, said Jehan Perera. Both President Sirisena and Prime Minister Wickremesinghe have each said that their government is not holding anyone in places of secret detention . If OMP says that their loved one is either dead or they are unable to trace what happened to him, this truth will be difficult for the families to bear, added Jehan.

Sri Lanka army  firmly denied that these ‘missing’ persons were killed  by  them. The Sri Lanka army said it was a highly professional army, not a weak undisciplined one as the Tamil Separatist Movement tried to show. Sri Lanka army  considered these accusations beneath them. They were contemptuous, not defensive regarding these accusations.

Spokesman Brigadier Sumith Atapattu told BBC in May 2019 “.People who  surrendered to the army were not  killed. That is for sure. Those who surrendered or were captured  have been accounted for. There are no underground detention camps in Sri Lanka . Foreign delegates including the UN have come and checked our camps.

In 2020 former army commander Daya Ratnayake was asked by an interviewer,  it is 10 years after the war, Tamil families are still looking for their loves ones. Their complaint is that these loved ones surrendered to the army during the final days of the war but still there is no trace of them. These families want answers. What happened to these people. Ratnayake replied, none went missing under our custody. The army has already said so. These allegations are false.

Anti –Eelamists alsopointed out that quite a number of persons who had been reported  missing during the conflict and after, were  living abroad under assumed names.

However, Tamil  families of disappeared persons  lodged complaints with all possible authorities, police, army, Human rights Commission and various domestic commissions of inquiry. The only response they got was that the person concerned had not been detained.

 A few  had filed writs of habeas corpus but this did not yield results either. The habeas corpus petition filed with the Vavuniya High Court in 2013 regarding the disappearances of the group led by Father Francis, seen surrendering to the army in May 2009 did not bring  forth Father Francis.

 Complainants were sent from place to  place, without receiving any information regarding their missing relatives. One witness stated that she had to pay an interpreter when she visited different Government offices. There was also the issue of language .  The police would record the statement in Sinhala and ask them to sign, though they did not know Sinhala. When the LTTE  took away my elder son, I knew which part of the jungle he was in. In the case of the army, I did not  know Sinhala to ask where they were taking  our children, one said.

The Tamil civilians, especially women, have been very active in the matter of Missing Persons. They have  protested vigorously and are continuing to demonstrate and protest to this day. Their support could be considered a continuation of their complicit behavior during the war. They supported the LTTE then, they were supporting the Tamil Separatist Movement now.

This group has demonstrated vigorously. Demonstrations were held in Colombo Mannar, Vavuniya and Jaffna reported Amnesty International in  2013. These got publicity, which was the purpose of the demonstrations.

In 2017 there has been a spectacular demonstration which went on for 500 days, into August 2018. These  impoverished women  could be seen,  dressed in  fresh, bright saris, holding placards and  photographs. On their 100th day of protest, the mothers called a massive demonstration and hundreds of people took to the streets and blocked the A-9 in Kilinochchi, reported the media.

source https://nhrf.no/article/2018/the-long-shadow-of-disappearances-in-sri-lanka

They sit when it rains, and they sit when the hot wind off the A-9 highway blows sand into their makeshift tent, reported the media, dramatically.  They’ve been sitting for over 200 days now in Kilinochchi, protesting the loss of their family members. They are mostly women, and they say they have one thing in common: they all lost their loved ones in the final days of the war, in 2009.

They want to know if their sons, daughters, parents, husbands and in-laws are dead, or if they’re alive somewhere, in a prison or detention camp. Some of their sons and husbands were fighters for the LTTE  they said, who surrendered after the Army’s final offensive. Some were just civilians, picked up in camps for internally-displaced persons or loaded onto buses and never seen again.

Kathasamy Ponnamma, a mother whose son-in-law disappeared in Vavuniya. If they supported the LTTE in some way, we are ready for judicial processes, we are not saying just release them.”  If you’ve killed my son, you can give me the body,” she said, with tears in her eyes. I need to do the final rituals. You can at least give the body to us.”

The relatives of the missing were organized into the Association for the Relatives of the Enforced Disappeared. This  would have been done by Tamil Separatist Movement. These village women lack the ability  to  organize in this manner.  In 2021 this Association came  Colombo to complain to the Sri Lanka HRC. They wanted  to  go to the ICC.    HRC had told them this was not possible. These  uneducated , backward women  from the north, could not have known of the ICC. They were doing as they were told.

Pohottu government plans to put an end to this matter by declaring all the missing as dead,  issue certificates and  give some  money to the relatives. This should  not be  done in a hurry. Each claim should be examined closely. Tamils have listed those killed in war as  ‘missing’.   The Census data for 1981 could be used as the baseline.

The stories related by the relatives of the Disappeared can be true or  false. Some sound flimsy. One said the  neighbors had seen the army  arrest and take away her husband.  I am still searching for him.

Here are some first person stories related in 2017. On a recent afternoon, surrounded by about 25 other mothers, Thangavelu Sathiyathevy recalled the last time she saw her family. She said she remembers the day exactly. This was May 18, 2009. We were in Vadduvakallu, and there were buses taking people away,” she said. Thousands of displaced people had gathered on the beaches there, seeking safety from the fighting. Vaddavakallu was technically in a no-fire zone.My daughter, son-in-law, and their three children were taken into the bus. He was an LTTE member,” she said, and we also asked to join with them. But they said no, you can go separately.”Sathiyathevy said she was taken to Manik Farm, an IDP camp near Vavuniya. But she has never seen or even heard from her family again. The children were 2, 9, and 10 years old.

Jeyakanthi Narmila’s husband from Thilaiyampathi in Kondavil, Jaffna, disappeared on August 17, 2007. She alleged that he was taken away by the Army in a white van.Some Army soldiers reached my home in a white van—it was around 3.30 am. He has not returned since. I haven’t heard anything about him. I made complaints about the abduction of my husband to both, the Uralu Army Camp and the Kopai Police,” she said.

Six months after the disappearance, she had seen her husband on a motorcycle pillion, ridden by an Army soldier. Three years later, she saw her husband once again, in an army truck.On that day, a piece of cloth was tied  round his mouth. Thereafter, I never saw my husband again.

Sivayogam Ratnaraja said she and her family was also taken to an IDP camp in Vavuniya after the war. In June, her son Ratnam Ratnaraja came to visit them from the University of Moratuwa, where he was studying engineering. But after he left the camp, he was arrested by local police.  She was never given a reason for his arrest. But she has a suspicion. Her elder son, Ratnam’s older brother, was an LTTE cadre and died during the fighting. Six months later, Ratnaraja said one of her neighbors, had met with and spoken with her son at Anuradhapura prison. She has not heard from  her son for the past eight years.( continued)

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