Sri Lanka: Was It A Genocide? – Analysis

Dr. Parasaran Rangarajan,

The Liberation Tigers of Tamil Eelam (LTTE) were one of the most advanced militant groups in the world listed as the world’s greatest terrorist threat by the United States (U.S.) Federal Bureau of Investigation (FBI) ahead of Al-Qaeda¹. A lot has been made out of the destruction of the LTTE and end of the civil war in Sri Lanka ending in a bloody scene for civilians in the early months of 2009. However, the question which lingers in the minds of the international community is was the final stage a “genocide” under the cannons of international law?

To answer this, there is the following international legislature and customary international law we must examine:

1.      The 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide²

2.      The Rome Statute of the International Criminal Court (ICC)³

3.      The 1977 Additional Protocol to the 4^th Geneva Conventions relative to the Protection of Civilian Persons in Time of War⁴

4.      The 1907 Hague Convention⁵

5.      The 1925 Geneva Protocol For The Prohibition of Use in War of Asphyxiation, Poisons, or Other Gases, and Of Bacteriological Methods of Warfare⁶

6.      The 1997 United Nations (U.N.) Chemical Weapons Convention (CWC)⁷

Before examining the facts, we must realise there were many calls from the international community for a surrender by the LTTE and ceasefire including from U.S. President Obama but no action was taken to intervene⁸ nor did the LTTE accept this.

Senior U.N. officials such as Prof. Richard Falk, former U.N. Special Rapporteur for the State of Palestine attributed the failure of the international community to step in and save the Tamil civilians who perished as a lack of political will to enforce the Responsibility to Protect (R2P) doctrine in international law which the U.N. follows⁹.

While non-interference in other nations is a foreign policy doctrine of immense value, 5 years after the war, Sri Lanka has not held its side of the promise to the U.N. and international community to investigate alleged violations of international law which it agreed to in a communique¹⁰ with the U.N. Secretary General after the war

This has lead to the U.N. Human Rights Council passed a resolution calling for the investigation of alleged violations of international law which was sponsored by around 42 nations¹¹ and a committee composed of 3 international experts has been recently set up¹². The purpose of the international investigation on Sri Lanka by the U.N. is to bring out the truths of what occurred during the time frame of 2002-2009 in Sri Lanka from the Interim Self Governance Authority (ISGA)¹³ to the end of the war in 2009.

Relative to international law, we must first look at the legal definition of genocide given to us by the 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide which Sri Lanka is signatory to and The Rome Statute of the ICC. Article 2 of the 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide states;

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

Article 6 of the Rome Statute states the same;

“For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racialor religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

There have been arguments for war crimes such as murder which is a “crime against humanity” and other crimes against humanity but we will examine how genocide is the most applicable legal term for this which is supported by international legal scholars.

With these definitions in mind, we look at the existing facts presented in the U.N. Panel of Experts Report On Accountability In Sri Lanka issued in 2011. Referencing pages 68-69 of the report, it states that the Panel found the following crimes against humanity including “extermination” which has dual-usage under international law following “The 8 Stages of Genocide” written by Prof. Gregory Stanton¹⁴ as “extermination” is the 7^th stage of genocide. The report on pages 68-69 of the U.N. Report states;

“The credible allegations support the finding of the crime against humanity in so far as the conditions imposed on civilians in the final months in the NFZ’s (No Fire Zones) were calculated to bring about the destruction of a significant part of the civilian population.”

The No Fire Zones were pre-dominantly Tamil so this proves the mens rea of the crime of genocide as the statements from the U.N. Report satisfies Article 2 (c) of the 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute since there was “intent to destroy an significant part of the civilian ethnic population”. The statements are word for word.

In addition, as previously mentioned, the international community called for a ceasefire and surrender considering the amount of civilian deaths and with the government of Sri Lanka continuing to bomb a “No Fire Zone” after thousands of casualties certainly constitutes intent as there was knowledge of human rights violations. This is also a reason why many nations ended arms supplies to Sri Lanka leading up to this time.

The actus reus of genocide is present as it is estimated by the U.N. that up to 75,000 Tamil civilians were killed as stated in page 40 of the U.N. Report;

“Others have put the estimate at 75,000, a figure obtained by subtracting the number of the people who emerged from the conflict zone (approximately 290,000) from the estimate number thought to have been in the conflict zone (approximately 330,000 in the NFZ’s (No Fire Zones) from January, plus approximately the 35,000, who emerged from the LTTE-held areas before that time.)”

While it is accepted in Counter-insurgency operations (COIN) there is collateral damage, when there is knowledge of the COIN causing thousands of civilian deaths, it can no longer be considered collateral damage as alternative military tactics must be examined.

Furthermore, if there are findings that the LTTE used human shields or used civilian buildings for military purposes, International Humanitarian Laws (IHL) in relation to “proportional use of force” to protect civilians is relevant. Sri Lanka is legally bound by the 4^th Geneva Conventions relative to the Protection of Civilian Persons in Time of War to this as Article 52 (1) of the 1977 Additional Protocol is the basis for nearly every international military doctrine on “proportional use of force”. The 1991 Swedish International Humanitarain Law (IHL) Manual states that;

“The proportionality rule must always enter into the assessment even though this is not directly stated in the text of Article 52.”

It would not seem reasonable that Sri Lanka took proportional measures under international humanitarian law under the 4^th Geneva Conventions to destroy the LTTE as firings of rockets, shootings, etc are not equated with repeated air raid bombings in a “No Fire Zone”. U.N. satellite images¹⁵ show the before and after the bombings of the “No Fire Zones” while the U.N. has stated the government of Sri Lanka bombed these areas¹⁶. Former U.S. Ambassador to Sri Lanka and Maldives H.E. Patricia Butenis has also stated there is enough evidence to extradite the top leadership of the government of Sri Lanka for these crimes¹⁷.

In addition, the pages 47-48 of the U.N. Report states that LTTE combatants surrendered were executed, known as the “White Flag Event”. Article 47 of Customary IHL and Article 23 (c) of the 1907 Hague Convention states that attacks against persons ad hors de combat is prohibited¹⁸. In other words, execution of the LTTE combatants who surrendered constitutes a war crime.

The usage of chemical weapons, a serious war crime, is also stated in page 47 of the U.N. report as there are allegations of chemical weapons, cluster weapons, and white phosphorous;

“There are allegations that the SLA (Sri Lankan Army) used cluster bomb munitions or white phosphorous or other chemical agents against civilian, particulary around the PTK and NFZ’s (No Fire Zones). Accounts refer to large explosions, followed by smaller explosions consistent with the sound of a cluster bomb. Some wounds in the various hospitals are alleged to have been caused by cluster munitions and white phosphorous.”

Sri Lanka is signatory to the U.N. Chemical Weapons Convention (CWC) and the use of chemical weapons was banned as early as 1925 with the Geneva Protocol For The Prohibition of Use in War of Asphyxiation, Poisons, or Other Gases, and Of Bacteriological Methods of Warfare. Under subsection 8 and Article X of the CWC, any persons affected by chemical weapons may seek international protection/assistance and this would extend to the victims. Under Article XII, the member State using chemical weapons may be placed under sanctions or referred to the U.N. General Assembly and U.N. Security Council.

In a very simple comparison, the International Criminal Tribunal for the former Yugoslavia (ICTfY) found that the act of Serbian General Radko Mladic overrunning a U.N. “Safe-Area” and executing at least 7,500 Bosniak men and boys who were sheltering with Dutch peacekeeping troops was legally “genocide”.

In addition to legal aspect of proving the genocide, internationally, politicians have also concluded Sri Lanka to be a genocide such as former Financial and External Affairs Minister of India Shri. Yashwant Sinha¹⁹,  the Attorney General and Minister for Human Rights of Mauritius Jaya Valayden, the Deputy Prime Minister of Mauritius Rama Sithenen²⁰, former Prime Minister of India Smt. Indira Gandhi²¹, former Attorney General of the U.S. Ramsey Clark²², former European Union (E.U.) Parliament Member Robert Evans, former U.S. Secretary of State Madeline Albright, etc.

However, it is a gradual process to term any event as a genocide and the same would be expected with the case of Sri Lanka. In case of Bosnia, the U.S., and the U.N. Security Council all rejected the phrase “genocide” at first, preferring “ethnic cleansing” instead, as genocide would require international action. Although this was the case, when genocide was proven, the U.N. stepped in to create Kosovo due to the international legal doctrine of “remedial justice” or “remedial sovereignty” recognised by the International Court of Justice (ICJ)²³.

Former U.S. Presidential Special Envoy to Sudan Richard S. Williamson and U.S. Secretary of State Madeline Albright had stated that the least the U.S. could do for the Eelam Tamils was to grant them the right of “remedial sovereignty” after the genocide in 2009 in her report regarding the Responsibility to Protect (R2P) doctrine²⁴.

Whether the victims can expect any “remedial justice” might be speculative at this stage but it is clear from the facts given to us by the U.N. and relevant international laws that the government of Sri Lanka can be found guilty of genocide and war crimes.

In fact, every mock legal tribunal established on this matter of genocide such as the Dublin Tribunal²⁵ consisting of Chief Justices, the former Assistant Secretary General of the U.N. who is a Gandhi International Peace Award laureate, and prominent international figures has already found the government of Sri Lanka “guilty”.

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