By Veeragathy  Thanabalasingham

Colombo, October 21- Recently, the Tamil National People’s Front (TNPF) leader Gajendra Kumar Ponnambalam said that the Tamils of Sri Lanka will never get justice in the matter of war crimes allegedly committed by the Sri Lankan State so long as the matter is confined to the United Nations Human Rights Council (UNHRC). 

Ponnambalam was speaking on the theme of ‘ Gathering evidence against genocide  under international intervention ; weaknesses and possibilities’ at an event organized by ‘Makkal Seyal’ (People’s Action) in Jaffna on October 6 to pay tribute to Kasipillai Manoharan who fought for justice for his son Rajihar who was killed by the Sri Lankan Special Task Force (STF) on January 1 2006 in Trincomalee.  

Kasipillai 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 have  only served as  instruments aimed at achieving the geopolitical interests of the international powers and have not ensured justice to the affected people.

He has taken a firm stand that what happened to Tamils  in Sri Lanka was genocide, accusing the Geneva processes of narrowing down what 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.

It is pertinent to see his comments in the context of the resolution on Sri Lanka passed on October 6 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 reconciliation in Sri Lanka.

This means that the evidence-gathering mechanism of the Sri Lanka Accountability Project (OSLAP) is being extended for another two years. However, the National People’s Power (NPP) government has rejected it outrightly.

The Tamil National Council which includes the TNPF and some other Tamil political parties and civil society organisations, and the Ilankai Thamuzharasu Katchi (ITAK)  had sent separate letters to the High Commissioner for Human Rights and Member States of the UNHRC ahead of the session in early September. In these letters, both sides stated what they felt should be included in the resolution to be adopted by the UNHRC on Sri Lanka.

Tamil National Council said that they had no objection to the extension of the mandate of the OSLAP but it must be time-bound and  coupled with an explicit message urging the United Nations Secretary General/ UN General Council / UN Security Council asking for referral to the International Criminal Court (ICC).

The ITAK said in the letter that although a referral to the ICC through a Security Council resolution is almost impossible, a resolution  should persuade the Sri Lankan State to sign and ratify the Rome statute as has been recommended by the National Human Rights Council and 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 which 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 UN Human Rights Council without a vote. We welcome the extension of the 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,” Sumanthiran said in a post on  X (formerly Twitter).

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 in the next two years.

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 the government to establish a domestic mechanism that can at least give some hope to the affected people even at this stage?

At such a juncture, let us look at the views expressed by Gajendra Kumar Ponnambalam on what he sees as the options available to the Tamil polity to exert pressure on the Sri Lankan government.

Supporting the demand for a common framework across political party lines to deal with the issue of accountability, he said that some deep truths need to be understood while deciding on such a framework.

Ponnambalam acknowledges that the ICC is the only institution that Sri Lankan Tamils can approach for accountability among the current  international frameworks. At the same time, he points out that only a  State can prosecute another in the International Court of Justice (ICJ).

Ponnambalam 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 Prosecutor’s Office at the ICC filed a complaint against the Myanmar government for its atrocities against the Rohingya Muslims. Like Sri Lanka, Myanmar is not a signatory to the  Rome Statute. But the ICC exercised its jurisdiction on the basis that Bangladesh, where hundreds of thousands of Rohingya had fled from Myanmar, had signed the statute and that the persecution of those people had taken place in Bangladesh also.

The Prosecutors at the ICC asked for a warrant to be issued for the arrest of Myanmar’s military leader on charges of committing crimes against humanity against 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 Rohingyase 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 the 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, 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 October 6 clearly shows that the  international community has no interest in applying pressure on the Sri Lankan government on the issue of accountability.

It is also important to understand the contradiction between demanding a political solution and accountability.

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?

END