21st Century UN Human Rights Mechanisms and the Tamils in Ceylon

| Human Rights Conference in Canada

( February 21, Toronto - Canada, Sri Lanka Guardian ) On 18th February 2012, a conference organised by the Centre for War Victims and Human Rights (CWVHR) took place in Toronto, Canada. It was attended by 400 participants. The conference title was: ”International Protection of Human Rights in the 21st Century and its challenges – Case Study on Sri Lanka”. Papers were presented by professionals, lawyers and intellectuals, followed by questions to the panel and discussion. Five Canadian Members of Parliament, from three political parties participated in the conference.

The speakers were: Ali Beydoun (Director of UNROW Human Rights Impact Litigation Clinic, working on a lawsuit against Major General Shavendra Silva in USA), Theodore Orlin (International Human Rights Lawyer, who has worked in many parts of the world, including the Balkans), John Argue (Amnesty International), Deirdre McConnell (Director – International Programme, TCHR -Tamil Centre for Human Rights), Rev. Dr S J Emmanuel (Priest, Author and President of the Global Tamil Forum), Danilo Reyes (Asian Human Rights Commission), David Matas (International Human Rights lawyer and specialist in Refugee Law) and Professor R. Sri Ranjan.

Mr. Anton Philip, founder-President of CWVHR, chaired the conference.

Here below is the paper given by Deirdre McConnell of the Tamil Centre for Human Rights. She is also author of “The Tamil People’s Right to Self Determination”, published in the Cambridge Review of International Affairs, March 2008.

 

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21st Century UN Human Rights Mechanisms and the Tamils in Ceylon (Island of Sri Lanka)

Deirdre McConnell

Director - International Programme

Tamil Centre for Human Rights – TCHR

Ladies and gentlemen, friends,

It is a pleasure to be here today. I thank the organisers for their kind invitation.

During my University time, I supported the anti-apartheid movement in South Africa, which was an important issue during the 70s and 80s. My involvement on human rights in Sri Lanka started during the time of widespread disappearances in the South, of Singhalese youth summarily executed in their tens of thousands in the late 80s. Through this, I learnt about the discrimination and oppression of the Tamil people and the long struggle in exercise of their right to self-determination and the approach throughout of the ruling Sinhala political leaders.

Concerning the Tamils’ perspective and hopes for peace, some years back I spoke at a conference in Ottawa, in this beautiful country. Three of those speakers, all human rights defenders, are no more with us. They were killed in Sri Lanka, in cold blood, in broad daylight, within a few years.

Kumar Ponnambalam, an eminent barrister and Joseph Pararajasingham, Member of Sri Lankan Parliament and Taraki Sivaram, well-known senior journalist, all advocated for the rights of Tamils.

I dedicate my talk to these people with whom we worked, and to all those who have died because they chose to defend the human rights of others.

To start, I would like to read you a paragraph from a letter written by Member of Parliament and Cabinet Minister, University professor and tutor of Queen Elizabeth II, C. Suntharalingam. He writes to then Prime Minister S.W.R.D. Bandaranaike, in May 1957:

“I have just studied the press report of your statement to the House on the ‘reasonable use of Tamil’. That statement reminded me of a case of a peculiar criminal. He had inflicted a serious injury on his enemy with a view to murdering him. The victim, fortunately, survived. The criminal, thereupon, invited his victim for a conference to devise a formula about reasonable terms on which the victim should be permitted to live! You have done, and are doing to the Tamils precisely what the criminal sought to do and did with his victim!”

This speaks for itself. It tells us what is happening now, and has been happening for more than six decades. The realities have become more and more harrowing – an accumulation of horrors lived by the Tamil people.

The UN human rights mechanisms came into being in the hope of preventing the reoccurrence of the horrors of the two world wars. Since the birth of the UN there have been no more world wars – but there have been many wars between countries, coalitions and also there have been births of new states.

These last, fall into a few different categories – some came into being through the help of the UN; some even though there was a armed struggle, were eventually born through UN processes and assistance, as was the case of East Timor. The oppression against the East Timorese eventually led to an armed struggle in exercise of the right to self-determination and finally, after years of building international solidarity, a UN process resulted in the birth of a new country. New states in Eastern Europe and the USSR cannot be categorised in the same way, but the causes are well-known.

Do these realities shed any light on the situation in the island of Sri Lanka, where individual and collective human rights have been violated for decades?

Tamil activists and international human rights activists report the human rights violations taking place in Sri Lanka, and have done so at least from 1983 regularly to UN human rights mechanisms and forums for over twenty years. These bodies are therefore well aware of the true situation are mostly situated in Geneva, but there are other locations too, including world conferences on human rights.

The birth of the 21st century has changed the human rights mechanisms within the UN. The earlier Human Rights Commission and Sub-Commission have now taken new form in the Human Rights Council and Advisory Committee. This last doesn’t have any teeth when it comes to taking action on any country – whereas the Human Rights Council has a more sophisticated system to scrutinise violating countries.

Whereas the Commission only met annually, the Council meets several times a year in Geneva, which helps keeps the pressure up. The Universal Periodic Review - UPR, is a new mechanism where each country is scrutinised in turn, to verifywhether their obligations under the conventions and covenants the country has ratified, have been met. But the UPR does not deal with war crimes. The treaty bodies of course continue to monitor obligations under the relevant conventions, for instance the Convention against Torture.

The crucial question is, “Why have the international human rights promotion and protection systems failed when it comes to Sri Lanka? If we consider the Security Council, the General Assembly and the Human Rights Council, we see that the Human Rights Council is the only place where there can reasonably easily be a resolution passed against a violating country. So this is the right place for human rights activists to work hard on bringing a resolution – on crimes against humanity and war crimes.

The contempt for international human rights and humanitarian law displayed by the Sri Lanka government has been breath-taking -literally. The worst is the snuffing out of precious life with absolute impunity – far more than 100,000 Tamil people over the decades. Then the systematic and horrific disappearances including by means of the notorious “white vans”, still continue today; the gruesome torture and collective punishment methods; rape used as a weapon of war; arbitrary arrest and detention. All this is done legally under for example the PTA (Prevention of terrorism Act), that protect the perpetrators and permit confessions made under torture as admissible evidence in court.

The catalogue of human rights violations is far too long. Waves of violations sprang from a range of repressive legislations over the decades. Colonisation of the Tamil hereditary land started even before independence, and grew steadily with calculated and methodical precision - the taking of land was not for farming or production – but for power. The changing of the demographics, to give successive governments increased electoral advantage was managed by settling Sinhala armed communities.

Add to this colonisation process, racist legislation introduced piece by piece to throttle the necks of Tamils people in economic, social and cultural matters as well as civil and political – and you have the relentless background to the history of human rights violations.

For thirty five years the Tamils used peaceful and non-violent means to protest - history shows that they were mercilessly repressed with military means. Pogroms against the Tamils were frequent and even the whole library in Jaffna was burned down in an act of memoricide – an attempt to kill the collective memory of a people.

The fact of genocide has been recognised, in 1983 by the International Commission of Jurists, based on the fact that Tamils represent a clearly defined group and those killing them, did so with the intent to wipe them out as a group – in whole or in part; that the killers encouraged or implicitly supported by state authorities and that the acts of violence and mass killings of Tamils were criminal and systematic.

To understand the ideology that fuels the calculated will to destroy a people in whole or in part (Article 2 of the Genocide Convention) is important. The distorted interpretation of a Buddhist text legitimises violence against Tamils “The myth of reconquest” (Mahavamsa). The legitimization of violence dehumanises the “Other” who are rendered disposable, being an obstacle to an ideological vision of mono-ethnic “purity”. This reality needs to be grasped.

I have written in the Cambridge Review of International Affairs, published in March 2008, on the Right to Self Determination of the Tamil people, a right enshrined in the UN major covenants and the UN Charter. There I have examined the links between the definition of the Tamils as a distinct people, and the political and ethnic violence meted out to them as falling within the definition of genocide according to precedents in international criminal law. The first international genocide trial in history, the Rwandan Akeyesu case, considered the scope and elements of genocide, defined what constitutes a protected group (shared language culture and stable existence) and recognized individual criminal responsibility for acts committed by subordinates. The trial chamber concluded that the victim 'is the group itself and not only the individual’. It established crimes against humanity as inhumane acts part of a widespread or systematic attack, committed with intent to destroy, in whole or in part an ethnic group. These acts include extermination, murder, torture and rape.

In 1977 that the Tamil people backed the collective Tamil political parties in their election manifesto exercising the right to self-determination. It is the flagrant breaching of this collective right that encompasses the whole range of rights mentioned previously. Ironically, there is no mechanism for the protection of this right in the human rights mechanisms. Recognition becomes a political matter as invariably self-determination struggles occur where the powers over them, UN member states, are resistant to respecting those rights, and will go to extraordinary lengths sometimes to crush the people.

It is high time for the international community to recognise and understand these dynamics, and ensure that Tamils rights are protected, after all there is even a Responsibility to Protect.

When perpetrators of violations are not brought to book, then impunity becomes the next horror, leaving violators to commit increasingly horrendous crimes. Mr Bacre Ndiaye (UN Special Rapporteur for extra-judicial killings) said in his 1998 report after visiting Sri Lanka: “The culture of impunity has led to arbitrary killings and has contributed to the uncontrollable spiralling of violence”.

During the nineties there were many peace conferences and seminars on the situation in Sri Lanka. Tamil intellectuals and others called for a paradigm shift. The situation needed to be understood differently from the usual cursory, superficial sound-bites emanating from Colombo news rooms and by-lines, and organisations mimicking the government’s standpoint or paid vast sums to make clever deceitful propaganda for the government.

If analysis is based on erroneous thinking, the problem appears a complete riddle. A puzzle that is impossible to figure out. For instance there are people who hold that the conflict is the Tamils’ fault in the first place. Fallacious arguments are sometimes used such as, “Tamils only came in the early 19th Century to Sri Lanka to work on the tea plantations”, or “Tamils want to carve out a state” – as if the land was not theirs all along, especially the North and East. Contrary to these popular misunderstandings, promulgated for political reasons, as you know, there is evidence that Tamils lived on the island for more than 2,500 years.

In 2001, when I was in South Africa attending the World Conference Against Racism, TCHR had a stall with various photographs and leaflets explaining about racism in Sri Lanka. South Africans who visited the TCHR stall remarked that in South Africa they had had ‘Apartheid’ but never the type and extent of massacres that were happening in Sri Lanka.

Also I met Tamils living in South Africa, whose families had lived there for more than 140 years. In fact, these Tamils from South India had been brought by the British to South Africa as indentured Labourers to work in the sugar cane estates. It was during the same period, that the plantation Tamils were brought from South India to work in the tea plantations in then Ceylon (Sri Lanka), where they are still plucking tea leaves whereas in South Africa not a single Tamil is today in the sugar cane plantations, but they have senior positions in the Ministerial cabinet, business and entrepreneur community as well as academia. This shows how the racism in Sri Lanka is worse than Apartheid was in South Africa.

It is interesting that a writer in The Economist tried to understand what was happening, and wrote in 2007 that the war in Sri Lanka was a “War strange as fiction”. Without understanding the fact of an ongoing genocide it is difficult to comprehend. The real facts are kept away from the light of day, by suppressing journalism and not permitting witnesses to be present, whether as media or humanitarian NGOs, a known tactic of perpetrators of genocide. The non-“interference” of other countries is an absolute necessity for the continuation of the genocide. If others smelt the true stench of reality they would not stand for it.

One of many striking examples of the abuse of power was in 2003 the then President Kumaratunga, while her Prime Minister from another political party was out of the country, all of a sudden sacked the Ministers of Defence, Interior and Media and dissolved parliament with no valid reason. Three days prior to this, a proposal for a political solution known as the Interim Self-Governing Authority - ISGA had been presented by the Tamils to the government. Media personnel in Britain and other countries were stunned for twenty four hours wondering how these sackings could possibly happen in a “democratic” country. Soon international news moved its focus from Sri Lanka, and the questions died away.

So the paradigm shift is to see the situation as one where there has been a massive abuse of power, leading to violations reaching eventually genocidal proportions, the culmination being the unspeakable brutality we saw unfolding in early 2009 and ending in May of that year.

Clever and sophisticated eye-washes were carried out in the form of lip-service commissions into human rights, with narrow terms of reference that never addressed the root causes. Talk of commissions, investigations, even peace talks and even more absurdly war for peace were all mechanisms used by Sri Lanka to avoid scrutiny, to dodge accountability. Negotiating stances were a charade for public consumption rather than serious engagement in conflict resolution.

Sri Lanka managed to avoid scrutiny for a long time. But it cannot do so forever. In fact now the tables are turning slowly, but surely. The mills of the United Nations grind slow but sure. The genocide of the Chemmani mass graves in 1996, though taken up by international human rights organisations, and the Office of the High Commissioner for Human Rights, did not attract any major action in the Human Rights international forums, the genocidal annihilation in 2009 is being viewed with horror and outrage. Sri Lanka is the first country for which the UN Secretary General, using article 100 under the UN Charter, has appointed a panel to investigate war crimes. The resultant Panel report, is a serious initiative, not to be underestimated. It challenges the resolution in favour of Sri Lanka passed at the Human Rights Council - HRC in May 2009, calling for this to be reviewed. It says “the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace”.

I would advise everyone to find ways to take up this issue in the forthcoming session of the Human Rights Council. Sri Lanka is not responding to the UN Secretary General’s report and international human rights organisations like Amnesty International, Human Rights Watch and the International Crisis Group are consistently maintaining that Sri Lanka has committed war crimes and crimes against humanity. Whereas Sri Lanka always maintains it is a matter of internal affairs and denies the need for an independent investigation.

There is a recent precedent to take hope from. Belarus was strongly criticised for its abuse of Presidential powers, which led to violations of trade union rights and the serious assaulting of protesters. Belarus insisted this was an “internal affair”, that the government had itself established who was responsible, and that it was confident it could rely on influential countries to block a resolution in the Human Rights Council. However a resolution was successful, in June 2011, strongly condemning Belarus’ human rights violations. This could happen because 21 countries voted in favour, 5 against and 19 abstained.

Therefore we must call on all people who love freedom, justice and human rights, who uphold international human rights law and international humanitarian law, to work hard on this issue – so a next step can be taken to find justice for the Tamil people of Sri Lanka.