Recently, Tamil National People’s Front (TNPF) Leader Gajendrakumar Ponnambalam said that Tamils would never get justice in the matter of war crimes allegedly committed by the Sri Lankan State as long as the matter was confined to the United Nations Human Rights Council (UNHRC) and that no foreign government was prepared to bring Sri Lanka before any court in the current situation.
Ponnambalam was speaking on the theme of ‘Gathering evidence against genocide under international intervention: Weaknesses and possibilities’ at an event organised by Makkal Seyal (People’s Action) in Jaffna on 6 October to pay tribute to Dr. Kasipillai Manoharan, who fought for justice for his son Ragihar, who was killed along with four other Tamil students by the Special Task Force (STF) on 2 January 2006 in Trincomalee. Dr. Manoharan died in London in late September.
Ponnambalam explained the present status of the efforts made so far by the Tamils to seek the help of the international community to hold the Sri Lankan Government accountable. He reiterated his party’s position that resolutions adopted by the UNHRC since 2012 had only served as instruments aimed at achieving geopolitical interests of international powers and had not been able to ensure justice and accountability for the affected people.
He took a firm stand that what had happened to Tamils in Sri Lanka was genocide, accusing the Geneva processes of reducing what had happened to the Tamils to just war crimes and crimes against humanity. He strongly believes that it will never be possible to hold the Sri Lankan Government accountable for ‘genocide’ through the UNHRC.
Reactions to the UN resolution
It is pertinent to see Ponnambalam’s comments in the context of the resolution on Sri Lanka passed on 6 October during the 60th session of the UNHRC.
The new resolution extended the mandate of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on reconciliation, accountability, and human rights in Sri Lanka. This means that the evidence-gathering mechanism being carried out by the OHCHR’s Sri Lanka Accountability Project (OSLAP) is being extended for another two years. The National People’s Power (NPP) Government has rejected this outright.
The Tamil National Council (TNC), which includes the TNPF and some other Tamil political parties and civil society organisations, and the Ilankai Tamil Arasu Katchi (ITAK) sent separate letters to the UN High Commissioner for Human Rights and member states of the UNHRC ahead of the session in early September. In the letters, both sides stated what they felt should be included in the resolution to be adopted by the UNHRC on Sri Lanka.
The TNC said that it had no objection to the extension of the mandate of the OSLAP but that it must be time-bound and coupled with an explicit message asking the UN Secretary-General/UN General Assembly/UN Security Council for referral of Sri Lanka to the International Criminal Court (ICC).
The ITAK said in its letter that although a referral to the ICC through a process of a Security Council resolution was almost impossible, the resolution should persuade the Sri Lankan State to sign and ratify the Rome Statute as has been recommended by the UN High Commissioner for Human Rights.
The new resolution clearly showed that those requests of the Tamil parties were not taken into account by the countries of the Core Group including Britain and Canada, which brought the resolution on Sri Lanka in the UNHRC.
The Tamil polity that had expected the new resolution to be more stringent than the previous resolutions was deeply disappointed. However, the ITAK welcomed the extension of the international community’s monitoring of Sri Lanka for another two years.
“A resolution to promote accountability and reconciliation in Sri Lanka has been passed by the UNHRC without a vote. We welcome the extension of international monitoring of Sri Lanka for another two years, despite the fact that various resolutions have been passed since 2012 and we are dissatisfied with the lack of progress for 16 years,” ITAK Acting General Secretary M.A. Sumanthiran said in a post on X.
Govt.’s position
Although the NPP Government rejected the new resolution, it did not challenge it by demanding a vote in the UNHRC. The fundamental problem for the Government is the two -year extension of the evidence-gathering mechanism.
Briefing Parliament on the Government’s position, Foreign Minister Vijitha Herath said: “If a credible national mechanism had been put in place immediately after the end of the war, Sri Lanka’s accountability problem would not have persisted in Geneva for 16 years. The internationalisation of the issue was due to the narrow political objectives and short-sightedness of the previous leadership.”
With the resolution asking the OHCHR to first submit a written report to the 63rd session and a comprehensive report to the 66th session on the progress of accountability, reconciliation, and human rights in Sri Lanka, the question arises as to how much the Government of Sri Lanka will be interested in the issue of accountability over the next two years.
It was customary for Sri Lankan governments to make certain declarations to satisfy the international community just before UNHRC sessions began. The NPP Government’s approach to the ethnic question has not been such as to give hope that it will display the political courage necessary to deviate from the set course.
Can the Foreign Minister, who blamed the narrow political objectives of the previous leadership for the internationalisation of the issue of accountability, persuade or prevail upon the Government to establish a domestic mechanism that can at least give some hope to the affected people even at this stage?
Options available for the Tamil polity
At such a juncture, let us look at the views expressed by Ponnambalam on what he sees as the options available to the Tamil polity to exert pressure on the Government.
Supporting the demand for a common framework across political party lines to deal with the issue of accountability, he stressed that some deep truths needed to be understood while deciding on such a framework.
Ponnambalam said that the ICC was the only institution that Sri Lankan Tamils could approach for accountability among the current international frameworks. At the same time, he pointed out that only a state could prosecute another in the International Court of Justice (ICJ).
The TNPF Leader cited the case of Myanmar as an example. The ICC can intervene only if a state is unable or unwilling to prosecute those responsible for international crimes. The Office of the Prosecutor at the ICC filed a complaint against the Myanmar Government for its atrocities against Rohingya Muslims.
Like Sri Lanka, Myanmar is not a signatory to the Rome Statute. However, the ICC exercised its jurisdiction on the basis that Bangladesh, where hundreds of thousands of Rohingya had fled to from Myanmar, had signed the statute and that the persecution of those people had taken place in Bangladesh as well.
The prosecutors at the ICC requested a warrant to be issued for the arrest of Myanmar’s military leader on charges of committing crimes against humanity in relation to the Rohingya people. This is the current status of the investigation against Myanmar in the ICC.
The ICJ is also currently hearing a case filed in 2019 by The Gambia, a small African country, against the Myanmar Government for not preventing the genocide of the Rohingya people and not punishing those responsible for the genocide. In 2020, the court issued an order compelling the Myanmar Government to take steps to prevent genocide.
The ICJ has no formal mechanism to implement its rulings. In the end, even the implementation of the decisions becomes a political matter involving the five permanent members of the UN Security Council, who have veto power. The decisions of the ICC can be implemented by states that have signed the Rome Statute. Another important question is how many states have been able to implement the court’s decisions in an effective manner so far.
In this context, the future approach to be adopted by the Tamil polity should be based on the experience of the efforts made by it over the last 16 years to enlist the help of the international community to hold the Sri Lankan Government accountable.
The Geneva resolution of 6 October clearly shows that the international community has no interest in applying pressure on the Sri Lankan Government regarding the issue of accountability.
In such a situation, the time has come for the Tamils and the parties representing them to rethink the approaches they have adopted so far in terms of finding a political solution to the ethnic problem and seeking accountability for the alleged crimes committed during the final stages of the war.
It is also important to understand the contradiction between demanding a political solution and accountability parallely from the Sri Lankan State. It is needless to interpret this as an argument for the abandonment of either of the two demands.
But how can one think of the next step without making an objective assessment of the merits and demerits of the strategies that have been adopted so far?
(The writer is a senior Tamil journalist based in Colombo)
(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)