The term ‘genocide’ was first introduced in 1944 by Polish jurist Raphael Lemkin in his work ‘Axis Rule’ in Occupied Europe. It is derived from the Greek word ‘genos’ (meaning race or tribe) and the Latin suffix ‘-cide’ (meaning killing). 

Lemkin coined the term in response to the systematic extermination of the Jewish population by the Nazi regime during the Holocaust, as well as in recognition of earlier historical instances involving the intentional destruction of specific groups. Subsequently, Lemkin played a leading role in advocating for the legal recognition and codification of genocide as a crime under international law.

The crime of genocide was formally codified in 1948 through the Convention on the Prevention and Punishment of the Crime of Genocide, which has since been ratified by over 150 States. The prohibition of genocide constitutes a peremptory norm of international law (jus cogens), from which no derogation is permitted under any circumstances. Accordingly, genocide is legally binding on all States, regardless of whether they have ratified the convention or not. 

International Criminal Court (ICC) which has been established by the Rome Statute, has jurisdiction in prosecuting individuals for the gravest crimes of concern to the international community, including genocide, crimes against humanity, war crimes, and the crime of aggression. 

Legal recognition 

For the purpose of Article II of the Genocide Convention and the Article 6 of the Rome Statute of the International Criminal Court, ‘genocide’ means any of the following acts committed with intent to destroy in whole or in part a national, ethical, racial or religious group, as such; Killing members of the group, Causing serious bodily or mental harm to members of the group, Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, Imposing measures intended to prevent births within the group, Forcibly transferring children of the group to another group

As a fundamental principle in criminal law, a conviction for any alleged offence requires proof beyond reasonable doubt of the two essential elements: ‘Actus reus’ (the physical act) and ‘Mens rea’ (the mental or intentional element) of the accused. This standard equally applies to the crime of genocide. To establish the commission of genocide under international criminal law, the following elements must be clearly demonstrated:

1. Protected Group: The acts must be directed against a specifically protected group, namely a national, ethnical, racial, or religious group.
2. Underlying Acts: It must be proven that one or more of the following prohibited acts were committed against members of the targeted group: Killing, Causing serious bodily or mental harm, Deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part, Imposing measures intended to prevent births within the group, Forcibly transferring children of the group to another group
3. Specific Intent (‘Dolus Specialis’): Crucially, it must be established that the accused acted with the specific intent to destroy, in whole or in part, the targeted national, ethnical, racial, or religious group. This element of intent requires more than evidence of mass killings or violence; it demands proof of a deliberate purpose to eradicate the group, wholly or partially, motivated by animus toward that group.

Moreover, in the jurisprudence of international courts and tribunals, the requirement of genocidal intent has often been assessed in light of the existence of a State or organisational policy or plan. Case law has thus extended the interpretive framework of international legal instruments to include contextual factors that support the inference of genocidal intent, particularly in cases involving large-scale or systematic acts of violence.

Humanitarian ops. against terrorism in Sri Lanka

The humanitarian operation conducted by the Government of Sri Lanka against the Liberation Tigers of Tamil Eelam (LTTE) constituted a counter-terrorism campaign, and not a campaign directed against any national, ethnic, racial, or religious group. The primary objectives of this operation were: To safeguard national and public security; to uphold the Constitution and the laws of the Democratic Socialist Republic of Sri Lanka; and to protect the human rights of both citizens and non-citizens.

In pursuit of these goals, the Sri Lankan Armed Forces comprising the Tri-Forces, the Police Department, and Civil Security personnel undertook operations to liberate civilians, including women and children, who were being held hostage or used as human shields by the LTTE during the final stages of the conflict. While many of these civilians were ethnically Tamil, they were, foremost, Sri Lankan nationals whose rights and safety the Government sought to protect.

The government forces operated under the principles of international humanitarian law, taking deliberate measures to protect civilian lives and civilian objects during military engagements. The protracted nature of the conflict spanning over three decades demonstrates the defence authorities’ adherence to the abovementioned laws and principles, as a rapid and indiscriminate military response would have contradicted humanitarian obligations. For instance, the LTTE’s control was geographically limited to parts of the Northern and Eastern Provinces (approximately 28% of the entire land). In these circumstances, unless Sri Lankan Air Force observed international humanitarian law, the terrorists could have been militarily neutralised through aerial bombardment in a far shorter time frame. This restraint underscores the absence of any intent by the Sri Lankan forces to destroy, in whole or in part, any segment of the Sri Lankan population. The military objective was strictly limited to defeating the terrorist organisation.

Was there an intent to commit genocide?

The allegation of genocide directed against the Government of Sri Lanka in the context of its military operations against the LTTE can be substantially rebutted based on the following considerations;

• Throughout the conduct of the humanitarian operation, the Government of Sri Lanka continued to facilitate the delivery of essential services, including food, medical supplies, and other humanitarian assistance, to areas under the LTTE control, without deliberately targeting or disrupting the civilian population
• The Sri Lankan Armed Forces successfully rescued over 300,000 civilians who had been forcibly held by the LTTE, thereby demonstrating a commitment to the protection of non-combatants
• Following the cessation of hostilities, over 12,000 individuals identified as former LTTE combatants were subjected to a government-led rehabilitation program and subsequently reintegrated into society. Notably, some of these rehabilitated individuals have since joined the Sri Lanka Army, including service as female personnel
• Approximately 50% of the Tamil population continues to live peacefully within a multi-ethnic and multi-cultural society, evidencing the absence of any systemic campaign of ethnic eradication
• At no point during or after the armed conflict were there any government-imposed restrictions on religious or cultural practices throughout the country, further negating the assertion of genocidal intent
• The International Committee of the Red Cross (ICRC), United Nations agencies, and independent foreign journalists have acknowledged and documented the Sri Lankan Government’s genuine efforts to eliminate terrorism while taking measures to safeguard civilian lives
• Engaged in the redevelopment of the Northern and Eastern regions by enhancing infrastructure facilities and facilitating the removal of anti-personnel mines, in collaboration with international organisations, with the objective of improving living conditions for the civilian population. Additionally, involved in the restitution and release of lands and other properties that were previously occupied by the LTTE during the armed conflict  

Importantly, in the context of international criminal jurisprudence, mere allegations are insufficient to establish the crime of genocide. Under international law, genocide must be proven beyond a reasonable doubt through concrete and credible evidence, particularly with regard to the specific intent to destroy a protected group.

For instance, the International Criminal Tribunal for the former Yugoslavia (ICTY) in 2012 dismissed one of the genocide charges against Radovan Karadžić, finding that there was insufficient evidence to prove genocidal intent in several Bosnian municipalities during the early 1990s. Similarly, in 2006, the ICTY acquitted Momčilo Krajišnik of genocide, ruling that there was no sufficient evidence to establish the requisite specific intent (‘dolus specialis’) necessary for a conviction under the Genocide Convention.

These precedents illustrate the high evidentiary threshold required to sustain a genocide charge, reinforcing the principle that such serious allegations must be assessed rigorously and objectively within the framework of international criminal law.

Terrorist activities during SL humanitarian ops.

It is well-documented that the Liberation Tigers of Tamil Eelam (LTTE), a proscribed terrorist organisation under the laws of numerous countries including the United States, the United Kingdom, India, and all 27 Member States of the European Union repeatedly and systematically violated international human rights law, international humanitarian law, and the constitutional and statutory laws of Sri Lanka. The LTTE’s actions included, but were not limited to, the following serious breaches: Targeted bombings of civilians in public spaces and modes of public transportation, including buses, trains, and commercial centers; direct attacks on civilian infrastructure; the killing of innocent religious devotees at sacred sites; the forcible closure of the Mavil Aru anicut, depriving civilians of access to water for agriculture and daily use; the unlawful extortion of civilians through ransom demands; the forced conscription of children and women into combat roles; the deployment of anti-personnel landmines, causing harm to both civilians and animals in contravention of international norms;  the destruction of critical civilian infrastructure, such as the Kilinochchi water tank; the misuse of internationally protected emblems, including that of the International Red Cross, for military purposes; the targeted killings of Tamil civilians and diplomats who opposed or criticised the LTTE; the deprivation of voting rights of citizens in LTTE-controlled areas; persistent violations of the Constitution and other duly enacted laws of Sri Lanka; the use of coercion, threats, and inducements to unlawfully recruit and mobilise individuals for terrorist activities.

In light of these acts, it is evident that the humanitarian operation undertaken by the defence authorities of Sri Lanka was directed solely at dismantling a violent terrorist organisation, not at any national, ethnic, racial, or religious group. Accordingly, the operation does not meet the legal definition or elements required to constitute the crime of genocide under international law.

By eradicating the terrorism from Sri Lanka, concrete measures have been taken to safeguard the right to life, restore the rule of law, and ensure equal access to fundamental freedoms including freedom of movement, education, and security for all citizens, regardless of ethnic or religious background. Symbolically, the post-conflict transformation is reflected in the replacement of instruments of war, such as cyanide capsules, with books and educational opportunities for children, affirming the country’s commitment to human development and reconciliation.

In this context, it is imperative for all Sri Lankans to move forward in unity beyond racial, ethnic, religious, or sectarian divisions and to contribute collectively to lasting peace, democracy, and national development.

(Article has been edited under editorial discretion for space requirements)

(The author is a Legal Officer attached to the Ministry of Defence)

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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication