SRI LANKA: Realities Of An 'International Investigation'

It is pertinent that anyone calling for an international investigation do so under the powers of Article 99 of the UN Charter routing this through the UNSG instead of the UNHRC for more effective action and avoiding political factors...

(COLOMBO, Sri Lanka) - It is important to point out that nobody should have any illusions of where an "international investigation", if conducted through the U.N. Human Rights Council

(UNHRC), is leading to. If an international investigation is commissioned by the UNHRC as promised by March 2014, it does not mean the Rajapaksas will be taken to court the next day. Just a normal murder trial can take years so you can imagine a trial for genocide and how much evidence will need to be presented.

However, there are still some questioning if what happened in Sri Lanka in 2009 was indeed a genocide confusing the terms with war crimes, crimes against humanity, ect. It is important to interpret that genocide is a sub-category of crimes against humanity or even its own category falling under the larger scope of a war crimes. If you refer to Section 251 (page 68) of the March 31st, 2011 Report of The UN Secretary General’s Panel of Experts into Accountability in Sri Lanka which referred to what happened as “extermination”. Under that section it states:

"The credible allegations support a finding of the crime of humanity of extermination in so far as the conditions imposed on the civilians in the final months of the No Fire Zones were calculated to bring about the destruction of a significant part of the civilian population."

“Intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of the population”.

This is indeed "genocide" if we follow Resolution 260, Article 2 of the Genocide Convention of 1948 which states the definition as:

"Intent to destroy in whole or in part, a national, ethnical, racial or religious group".

Note that there is the intent to destroy in all three legal classifications. Furthermore, if we refer to the article 8 Stages of Genocide written by Prof. Gregory Stanton and cited by scholars in the ad-hoc Khmer Rouge tribunals, he explains how genocides occur in war, hence are war crimes, and “extermination” is the 7th stage of genocide. He also explains the last phase is denial which many are stuck in, including the government of Sri Lanka.

If the UNHRC is utilized for bring the perpetrators of genocide to justice, we can expect the organization to establish a "Independent International Commission on Sri Lanka" or some similar body which will conduct an investigation into these allegations with a time frame of minimum 1-2+ years (Ref: Syria and Korea). Furthermore, a vote by the UNHRC will need to take place to implement such a commission where new member states such as China will use its political powers to reject such a demand. However, if an international investigation is commissioned by the UNHRC as expected with western pressure, evidence will surface that Rajapaksa and his brothers were involved in the genocide as these commissions are not established if there is not enough evidence by convention. After this evidence is presented and referred to the U.N. Security Council (UNSC) to establish a tribunal, only then will the International Criminal Court (ICC) will issue an arrest warrant where a trial will take place. The total process of international justice through the UNHRC could very well take 5+ years which is why we need "Article 99" of the UN Charter invoked by the U.N. Secretary General (UNSG) immediately which was recommended by the UN Office of Legal Affairs, the UNSG’s own legal team, at the time of the genocide. If Article 99 is used, a fact finding mission can be set up instantly by the UNSG which will lead to referral to the UNSC who may then request the International Criminal Court (ICC) to take jurisdiction and issue an arrest warrant for the Rajapaksas much quicker than utilizing the UNHRC which extends procedural requirements to political factors when this is a matter of law, not politics. The UNSC by convention has heeded to commission requests by the UNSG in the past so a veto may not be of issue at that point. This call has been reinforced by many as U.S. Congressman Steve Driehaus in 2010 who requested U.S. Department of State to urge the UNSG carry out the international investigation rather than the UNHRC for these very reasons, once again which may be done under Article 99.

It is important to note that Article 99 has been used on three famous occasions; Congo in 1960, in 1979 during in Iran during the U.S. Embassy hostage situation, and in 1989 in Lebanon. While the three mentioned usages of Article 99 usage are the most famous, there have been more recent cases. The UNSG has exercised Article 99 to establish fact finding missions after the military coup in Fiji during 2006, to investigate "clean up" operations in Zimbabwe in 2005, and when the UNSG established an official international commission of inquiry into the violence that took place in Guinea in 2009. Many have pointed out that it is too late for the UNSG to utilize Article 99 since the situation is no longer genocidal on the ground as it was in 2009, therefore no longer a threat to “international peace or security”. However, failure to act in accordance with the “Responsibility to Protect” doctrine by the UNSG in 2009 cannot be an excuse to protect the Tamils of Sri Lanka today and invoking Article 99 today where “coercive population control”, a form of ethnic cleansing and genocide is taking place among other atrocities. In fact, the UN Follow-up Report to the Secretary-General’s Internal Panel of UN Action on Sri Lanka issued July 9th, 2013 compared Sri Lanka to the Rwandan genocide and states that the UN will move towards an “Article 99 attitude”. The report also admits a “systematic failure” in 2009 in failure to invoke this legal instrument. At the very least, these recommendations should be heeded to now to avoid further such failures in the case of Sri Lanka.

Therefore, it is pertinent that anyone calling for an international investigation do so under the powers of Article 99 of the U.N. Charter routing this through the UNSG instead of the UNHRC for more effective action and avoiding political factors as once again, this is a matter of human rights, not a matter where the economic or political interests of one country should play a factor. This genocide was committed in 2009 and optimistically, Rajapaksa and his brothers can be brought to justice by 2015 through using Article 99 and with consent and recommendation to the ICC from the Security Council or a resolution establishing a tribunal.

The consent by the western states is there in the UNSC but it is expected China will oppose and a question mark remains over Russia. These are the realities of the calls for an international investigation. What is in the interests of furthering the ideals of international criminal and human rights law to hold genocidal governments accountable would be to interpret Article 99 to allow the UNSG to recommend jurisdiction to the ICC although this is not expressly written in the Rome Statute and establish an ad-hoc tribunal to preserve international peace and security on his own cognizance taking into account the reports of the situation.

Pessimistically, through successful use of the UNHRC, a conviction date of 2020 is possible by then which President Rajakapsa may die of natural cause since he is 67 years old right now but nevertheless, the other Rajapaksa brothers who also participated in this genocide will be held accountable and the “authoritarian” regime, as described by U.N. Human Rights Commissioner Ms. Navi Pillay, will be removed which is most important. An alternative is also to use the domestic court systems as genocide legislation is universal and Spain has recently issued arrest warrants for ex-Chinese leaders for their involvement in Tibetan genocide of the late 1980’s. This is only possible because these Chinese leaders including the former President of China no longer have diplomatic immunity as head of state – Rajapaksa’s diplomatic immunity runs at the end of his term in 2016 unless re-elected. When these domestic arrest warrants for genocide are routed through Interpol, a worldwide manhunt will result for these war criminals and it is likely they will never be able to leave the country that is shielding them. In addition, there might even be pressures to extradite them depending on the political will of the countries involved and bi-lateral extradition treaties.

Let it be known today, that no matter long how it takes, we never gave up and never will give up after more than 60 years of struggle and hundreds of thousands of lives lost. Tamil Eelam will be born.

Parasaran Rangarajan: Editor-in-chief for the International Law Journal of London and member of the legal department of the Prime Minister's Office of the TGTE.