D. 22.03.09
fra Patrick Mac Manus <patrickpmacmanus@gmail.com>
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Sri Lanka's Srebrenica?
By: Chithirai
<http://www.tamilcanadian.com/page.php?cat=5&id=5720>
In the fog
of asymmetric war, while global focus remains transfixed on the Tiger, gross
violations of international criminal law are effortlessly obfuscated and erased
by the government within the pretext of post-9/11 counter-terrorism. As what
looks like a Sri Lankan Srebrenica unfolds in Mullaithivu, the nation breathes
at a polarizing Rubicon where increasingly, support for war appears to be
support for genocide in part.
Today, in
Lanka, the spread of internment camps and steady torrent of death, abduction,
alleged rape, arbitrary or indefinite detention, bombardment, shelling, and
otherwise general decimation and progressive socio-cultural and economic
strangulation of Tamil civilian areas over recent months, has pushed the global
Tamil Diaspora to a tipping point. When the siege of Mullaithivu ends, and when
those seriously injured Tamils denied medicines have died, the whole or partial
extermination of Tamils in the territories in and surrounding Mullaithivu will
be a fait accompli and arguably legally constitute genocide or an act of
genocide committed by the GoSL.
The
Diaspora must assess whether or not sending remittances, aid, relief, and
building infrastructure, while constructive and viable methods of Diasporic
activism during peace or low-intensity conflict, are sufficient in this hour.
The Diaspora must choose whether the time has come for new complementary
approaches to activism.
Collective
legal action is one.
Thus far,
shades of division and indifference within the global Tamil Diaspora has
impeded exploration of this option as a means of engagement to pressurize the
Sri Lankan government. If the Tamil Diaspora across nations can begin to act
with common purpose supporting collective legal action, this activism can
influence what unfolds at present. To provide one application of this angle of
legal mobilization, an analysis of the Srebrenica/Mullaithivu parallel and the
legal criteria for genocide and its application to the case of Tamil genocide
in Sri Lanka, is detailed in this article.
Srebrenica/Mullaithivu
Parallel
Firstly,
analyzing the Srebrenica/Mullaithivu parallel necessitates analyzing the
language historically contextualizing the violence. Categorizations such as �ethnic conflict� and �War on Terror� it appears have
been part of a vocabulary which frames civil war, counter-terrorism, and
genocide as mutually exclusive conflict phenomenon. Upon reinvestigation, the
historical arc of Lanka's 4 civil wars since independence is also interpretable
as one protracted, attritional Tamil genocide of slow death, sustained by
forced cultural assimilation into majoritarian culture and genocidal conditions
of life institutionalized to bring about the physical destruction of the Tamil
people in whole or in part, to create a Tamil-free Buddhist Sinhala Sri Lankan
state.
While
Tamil genocide can be framed as such, within Eelam War IV (November 2005 -
Present) or the 61-year post-independence history, recent mass atrocity crimes
in Mullaithivu between January and March 2009 alone, are arguably legally
constitutive of genocide, and will be analyzed in isolation in this article.
A
post-mortem of January-March 2009 in Mullaithivu elucidates parallels between
the 1995 Bosnian Muslim genocide in the Srebrenica Safe Area and Tamil genocide
in Mullaithivu's Safety Zone.
To surmise
Srebrenica, at the tail end of the Balkan Wars from 1991-1995 as Yugoslavia
dissolved, before the 1995 Dayton Accords and later 1999 NATO bombing, a
genocide was committed. In mid-July 1995, members of the Bosnian Serb army, the
Vojska Republike Srpske (VRS), massacred between 7,000-8,500 Bosnian Muslim
military age men. The massacre took place in the town of Srebrenica located in
eastern Bosnia and Herzegovina. Srebrenica at the time fell within a United
Nations Safe Area. One objective of this Safe Area was to protect civilians
from the armed conflict that was occurring in Bosnia and Herzegovina at the
time. Radislav Krstic was both a general Major in the VRS, and a member of the
VRS Main staff. Radovan Karadzic, the president of Republika Srpska, who
stewarded the Greater Serbia project to create a racially pure Serbian
republic, was Supreme Commander of the VRS, and assigned Krstic with command
and control responsibility over the Drina corps, a subunit of the VRS
responsible for the territory of Srebrenica.
During the
Srebrenica genocide, VRS soldiers removed Bosnian Muslim women, children and
the elderly from the Srebrenica enclave. The military-age men who remained were
systematically murdered through summary execution. This plan was devised by the
VRS main staff. The U.N. Security Council established the ad hoc International
Criminal Tribunal of the Former Yugoslavia (ICTY) in 1993 to investigate and
prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1991. On August 2, 2001, the Trial Chamber for the ICTY convicted Krstic on a
variety of charges related to his role for participating in the Srebrenica
genocide, which exterminated 7,000-8,500 of the approximately 40,000 Bosnian
Muslims in the area at the time the genocide was committed. The Trial Chamber
concluded the massacre in Srebrenica was a genocide of the Bosnian Muslim population
�in part�, which effectively destroyed Bosnian Muslims as a
social entity such that Bosnian Muslims would not be able to reconstitute
themselves in the territory of Srebrenica as they existed pre-genocide.
The
chronology of, and intention behind, the mass atrocity crimes in Mullaithivu
seem to fit the Srebrenica model. The genocides in Srebrenica's Safe Area and
in the Vanni Region (Kilinochchi District, Mullaithivu District) including the
Safety Zone in Mullaithivu district from January through March 2009, share
similarities in intent, jurisdictional applicability of military command and
control responsibility over superiors, and in the pattern of extermination of a
protected group within a defined locality to ensure the group as a cohesive
social entity will be unable to reconstitute itself in this territory,
post-genocide.
In
Srebrenica, Bosnian Muslim military-age men were forcibly deported to an area
within Srebrenica, where they were exterminated by summary execution as part of
a widespread and systematic plan, policy, and pattern to create a racially pure
Serbian Republika Srpska. In the months leading up to January-March 2009 in the
Vanni Region, the mono-ethnic Sinhala army systematically committed a pattern
of war crimes and crimes against humanity under the pretext of
counter-terrorism, targeting densely populated, ethnically homogeneous
Hindu-Christian North-East Sri Lankan Tamil civilian areas, to drive, through �genocidal corridors�, Tamil IDP flows
amounting to 350,000+ civilians into the Mullaithivu District, including the
Safety Zone in Udayaarkaddu.
Like in
Srebrenica's Safe Area, after Tamil civilians relocated to Mullaithivu's Safety
Zone, the armed forces attacked the Safety Zone.
Between
January and March, the army launched indiscriminate artillery and Multi-Barrel
Rocket Launcher (MBRL) attacks and aerial bombardments, targeting territories
inside, surrounding, and outside Mullaithivu's Safety Zone, including the
repeated targeting of communal shelter infrastructure such as schools,
hospitals, temples, churches, and temporary refugee camps. The siege of the
Safety Zone was preceded by the withdrawal of all humanitarian aid
organizations in the region enforced by the state. A regional media black out,
in effect episodically over the past 3 years, was enforced during the assault
and continues to blur humanitarian accountability mandated by the 1949 Geneva
Conventions. Key roads and bridges were closed by the army to trap civilians.
Medical supplies were denied to treat the wounded during and after the siege.
The
ethnic-cleansing in Srebrenica's Safe Area and arguably in Mullaithivu's Safety
Zone during January-March 2009 was systematic, premeditated, and part of a
widespread plan and policy in each case to destroy or attempt to destroy the
target group, physically, or as a cohesive social entity, in whole or in part,
in territories in and surrounding a Safe Area. The crime of genocide, committed
in Srebrenica and arguably committed in Mullaithivu, was committed by armed
forces or state-sponsored military actors in the region, as part of a plan of
progressive racial purification, in the former the vision of Serbian Repulika
Srpska, in the latter the Sinhadhippa-Dhammadhippa inspired vision of a
Tamil-free Buddhist Sinhala Sri Lanka as prophesied by the 6th century B.C.
central text to Sri Lankan Thereveda Buddhism, the Mahavamsa.
In the
Srebrenica/Mullaithivu parallel, overall differences are largely trivial, other
than that Tamils in Mullaithivu during January-March 2009 were more vulnerable
to genocide than Srebrenica's Bosnian Muslims in 1995 where the U.N. presence
in the Safe Area was a deterrent in theory.
Legal Criteria of Tamil
Genocide
Secondly,
acts committed in Mullaithivu during January-March 2009 arguably satisfy the
legal criteria for genocide.
Arguments
referencing historical or present crimes committed by the LTTE against the
Muslims or Sinhalese articulate the complexity of Sri Lanka�s conflict and have no bearing on the case of Tamil
genocide. Arguments refuting whether Tamil genocide has occurred by comparison
of Mullaithivu to the Holocaust or otherwise are legally non-substantive.
Arguments alleging acts in Mullaithivu targeted only the Tiger confuse the
issue, as counter-insurgency and genocide are not incompatible.
The
application of the legal definition of genocide to intent-based acts is what
determines whether certain acts constitute genocide, rendering as baseless
assertions that acts of Tamil genocide in Mullaithivu or in the North-East,
must optically, or numerically, measure up to a Holocaust or Rwanda standard.
The crime of genocide, as set forth in the 1948 Genocide Convention, and
promulgated in the ICTY, the International Criminal Tribunal of Rwanda (ICTR),
the Rome Statute, and as domestically ratified by national courts across the
world, is defined as acts intended to destroy, in whole or in (substantial)
part, a national, ethnical, racial, or religious group, as such.
Therefore,
to commit genocide at the group level, it is not necessary to physically destroy
the target group in whole. The mens rea of genocide requires that so long as
there is an attempt to destroy in whole or in part a target group, then these
acts would be constitutive of genocide or acts of genocide, whether or not the
acts succeeded in the physical and socio-cultural destruction in whole or in
part of the target group. At the individual level, murdering a Tamil because
s/he is Tamil is genocide; the counter-insurgency logic that a particular
demography of Tamils in a particular area might be Tigers, and therefore these
Tamils maybe murdered on suspicion of being a Tiger, is erroneous and not
exculpatory through the eyes of the law.
To discern
whether genocide has occurred, three elements must be established:
1. the act occurred
2. the existence of a national, ethnical, racial or religious group as such
3. the intent to destroy that group in whole or in part
Given this
definitional rubric, an act is genocidal if it is committed with the intent to
destroy, in whole or in part, the national, ethnical, racial, or religious
group, as such. This mens rea and actus reus requirement for Bosnian Muslim
genocide was met in Srebrenica, and is arguably met for Tamil genocide in
Mullaithivu during January-March 2009. The joint criminal enterprise of
extermination which took place in Srebrenica and Mullaithivu, unfolded within a
broader series of campaigns. Whereas in the Srebrenica genocide, individual
criminal responsibility under the international customary law doctrine of
military command responsibility was attributed to Karadzic and Krstic, in the
Mullaithivu genocide, individual criminal responsibility is attributable to
President Mahinda Rajapaksa, Defense Secretary Gotabaya Rajapaksa, Lt. General
Sarath Fonseka, and other superiors and subordinates in the Eastern provincial
military hierarchy.
Proof of
genocidal intent, which separates the crime of genocide from crimes against
humanity or perseuction, as established in ICTY and ICTR jurisprudence, may be
inferred from the factual circumstances of the case. The inference that a
particular mass atrocity was motivated by genocidal intent may be drawn even
where the individuals to whom the intent is attributable are not precisely
defined, and maybe inferred where the crime is motivated by dual motives, in
the Mullaithivu context, genocide or counter-insurgency.
Establishing
intent can begin by establishing the counter-insurgency was not non-genocidal,
and thus by inference at least in part genocidal, which would meet the
requisite mens rea requirement. This can be demonstrated by showing those
individually criminally responsible had knowledge about the situation facing
the protected group targeted for extermination during and in the wake of the
military campaign; they had direct or indirect interaction with the main
participants of the joint criminal enterprise; they had knowledge that
resources and soldiers under their command were used to facilitate the killings
In Mullaithivu, genocidal intent can be shown in several ways, including, but
not limited to the following three approaches. Firstly, intent can be
established by recent public statements by the Rajapakses and Fonseka which
imply or state that Sri Lanka is a Sinhala or Sinhala-Buddhist nation, or which
by negative inference imply that via their overly broad interpretations of
non-Sinhala collateral damage, partial Tamil genocide is not an illegitimate
method of Sri Lankan counter-insurgency. Secondly, intent can be inferred from
the post-independence history's litany of anti-Tamil pogroms and anti-Tamil
legislation promoting Buddhism, the Sinhala language, and which are arguably
part of a larger historical pattern evincing a longer-term attritional design
to Buddhist-Sinhalize the entire island. Thirdly, intent can also be
established in the Mullaithivu context by the weapon of choice. It can be
argued systematic and widespread use of indiscriminate aerial bombardments and
artillery and MBRL shelling on densely populated ethnically homogeneous Tamil
civilian areas, targeted the destruction in whole or in part of the
Hindu-Christian North-East Sri Lankan Tamil ethnic group, rather than targeting
a collective of individuals. Since these attacks were indiscriminately launched
on areas packed with Tamil civilians, the inference that the intent of the act
or acts targeted the whole or partial destruction of a protected group and not
just a collective of individuals who by coincidence were Tamil, would be
reasonable, and therefore, would be dispositive in determining genocidal
intent.
The
Srebrenica/Mullaithivu parallel and legal criteria for genocide, during
January-March 2009, suggest that the question at present is not whether
genocide has occurred, but rather can the global Tamil Diaspora mobilize to
pursue justice in international and non-Sri Lankan national courts for a Tamil
genocide which may have been already committed.
If the
artillery and MBRL shelling, aerial bombardment, media blackout, deprivation of
essential foods and medicines, barring of journalists, barring of independent
observers, and mass confinement in internment camps where rape and
disappearance have been alleged, all stop today in Tamil areas, it will not
weaken the Tamil genocide argument, nor will plausible future counter-attacks
by the Tigers. What has already occurred in Mullaithivu as perpetrated by the
GoSL between January and March 2009 was not exclusively collateral damage,
counter-insurgency, ethnic conflict, war crimes, or crimes against humanity. It
was arguably a genocide in part blurred by or embedded within counter-insurgency,
an operational duality which in court, would not exonerate perpetrators of
committing genocide, the crimes of crimes.
If Tamil
genocide in part has already been committed, Tamils should not allow Black July
justice to recur. This time, the global Tamil Diaspora must find an
international or non-Sri Lankan national court and a prosecutor, and engage in
and establish a judicial process through universal jurisdiction or
extra-territorial application of domestic law which can deliver to Tamils, justice
commensurate with the crimes committed.
Moving
forward, the central obstruction to pursuing Tamil justice will not be the
international community�s indifference or
the historical impediments of the GoSL�s political will or
Sinhala-Buddhist majoritarian consent, but the global Tamil Diaspora itself and
its own ability to unify and collectively mobilize behind legal action in
international or non-Sri Lankan national courts. If Mullaithivu was not Sri
Lanka�s Srebrenica, if the
counter-insurgency was not genocidal, the Tamil position should be: genocidal
impunity is not immunity. Let the courts decide.
--
Patrick Mac Manus
Midgaardsgade 13, 3. th.
2200 København / Copenhagen N
+45 22 45 41 78
Foreningen Oprør / Rebellion (Denmark): www.opror.net/blog/
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