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THE UNHRC RESOLUTION AND ITS REPERCUSSIONS

The Tamil Eelam liberation struggle and its solidarity movement now face the question: What is to be done? To find an answer, we have to reckon with certain facts.

The genocidal war against the people of Tamil Eelam reached its traumatic climax at Mullivaaikkaal on 2009 May 16, 17 and 18. And in this holocaust thousands of Tamils were massacred and the armed struggle for the liberation of the Eelam nation was totally crushed.

The military hegemony over the Tamil Eelam areas has, in conjunction with Sri Lanka’s rigidly unitary constitution and the supremacist psyche of the Sinhalese people, brought about a situation where the democratic space for the Tamil Eelam people in their homeland to continue the struggle has been done away with or highly restricted.

The Mullivaaikkaal massacre has neither ruled out nor brought down the historic necessity for the liberation of Tamil Eelam, but rather enhanced it manifold. On the other hand, it has mostly destroyed the capacity to fight for liberation. The growth or otherwise of a liberation struggle on Eelam soil depends on how we proceed to solve this contradiction. In other words, how are we going to help the homeland Tamils to rise again to fight? We have to find an answer to this question in theory and practice.

WHAT IS THE OBJECTIVE?

The objective of the struggles to be waged outside the homeland in Tamilnadu and in the diaspora is to create and broaden the democratic space for the homeland Tamils to fight in and to utilize every opportunity available for this purpose.

However the realization of the Tamil Eelam liberation struggle depends, in the ultimate analysis, not on international organizations such as the UNO, but on the people of Tamil Eelam. At the same time this struggle has to be carried on in the political and diplomatic background of the present world. To ignore the developments on the international arena with a world-order based on inequality would not help in the growth of the struggle. Without actions and reactions on the international arena, where each state works for its own self-interest and the pursuant geo-politics, the cause of liberation cannot be advanced.

THREE DEMANDS

In our view this is the basis on which we have to look at the discussions, resolutions and other proceedings of the United Nations Human Rights Council since 2009 till date. The three cardinal demands on which there is unanimity among world Tamils are:

1. There should be an independent international investigation into the charges of genocide, war crimes and crimes against humanity.
2. An international mechanism should be put in place to stop the ongoing structural genocide.
3. There should be a general referendum of Eelam Tamils in the homeland and in the diaspora to decide on the future of Tamil Eelam.

Ever since the UN Secretary-General’s three-member Panel of Experts submitted its report, the Transnational Government of Tamil Eelam, the Global Tamil Forum, the British Tamil Forum, the Canadian Tamil Congress and other Tamil organizations of each country have been raising these demands in one voice. The pro-Tamil Eelam organizations of Tamilnadu including the Tamil national movements have also been consistently voicing these demands. So, no doubt, these are the unanimous demands of world Tamils on the international arena. A few organizations may have some additional demands to make. For instance, the TGTE demands that the UN release the pieces of evidence, in its possession, for the crimes committed by the Government of Sri Lanka. But whoever makes whatever demands, none of them is contradictory to the above three cardinal demands.

We know well that the UN, on behalf of the international community, is not likely to concede these three demands at once. This is going to be a long and tedious journey. Because there is no way we can raise our own voice in the UN or in other international forums as there is no sovereign state of Tamils on earth.

WHAT CAN TAMILNADU DO?

The genocide of Eelam Tamils has painfully shown to the Tamils of Tamilnadu and the world Tamils that Tamilnadu is a slave nation as like Tamil Eelam. Those who wanted to believe that India would raise its voice for Tamils are now a disappointed lot. However it is our experience that Tamilnadu as the foremost homeland of Tamils in the world can pressurize the Government of India to the extent possible to speak out in favor of Tamil interests on the world stage.

Secondly, it should be borne in mind that though we have lost our military and political strength, we stand on the world stage with a great moral strength as never before. The holocaust that was and the ongoing genocide have raised the justness of our struggle mountain-high. However much Sinhalese supremacists may try to, it is no longer possible to brand our struggle as terrorism and isolate and suppress it as such.

REMEDIAL JUSTICE

On the basis of language, territory, culture, economy and history, Eelam Tamils constitute a nationality and Tamil Eelam is a nation. Sovereignty and the right to self-determination belong to it. Apart from being inherent rights, birth-rights as they say, now as a people who suffered genocide, war-crimes and crimes against humanity, we are now entitled to claim as a remedy for all this suffering, Remedial Justice, Remedial Sovereignty and Remedial Right to Self-Determination. In short, we have to understand that our struggle on the international arena is also one for remedial justice and resort to suitable political and diplomatic means.

We must bear in mind the fact that the state of Israel was awarded by the world by way of remedial justice to Jews who were subjected to genocide during World War II – without in any other way comparing Eelam and Israel.

THE FUTURE OF THE STRUGGLE

It is not our viewpoint that the struggle of world Tamils alone would in itself secure the liberation of Tamil Eelam. This struggle of ours would help in isolating the Sinhala fascist enemy, discouraging Sinhala supremacism and encouraging the Tamil people, and thereby create and extend the democratic space for the people in the homeland to carry on their struggle. It cannot be foretold now itself as to how the struggle there would take shape and develop. Likely to break out are militant mass struggles somewhat similar to the Intifada of the Palestinian people in the West Bank of Jordan and the Gaza strip under Israeli occupation. Let us wait and see, or rather fight and see.

Our struggle on the international arena for remedial justice started right with the tragic end at Mullivaaikkaal. I do not think it necessary fully to elaborate on the developments thus far. Let us be brief.

GENEVA 2009

We know well what happened at the special session of the UN Human Rights Council at Geneva towards the end of May 2009. Two resolutions were moved, both by no means useful to the Tamils. One of them proposed that the Government of Sri Lanka itself enquire into alleged human rights violations. That was defeated. The other one congratulated Sri Lanka on its victory in the ‘war against terrorism’ and asked for helping it. This was adopted successfully. In the voting on both the resolutions, India was pleased to oblige Sri Lanka.

It was imperative to get out of this miserable situation where there was not a single state in the world even to console the Tamil people subjected to a cruel genocide. On top of that the struggle for justice had to be taken forward. In order to meet this new need new kind of organizations of diaspora Tamils came to the fore. Foremost among them, in our view, is the Transnational Government of Tamil Eelam (TGTE). The Global Tamil Forum (GTF), the British Tamil Forum (BTF), the Canadian Tamil Congress and such other Tamil organizations of each country have played a notable part in this regard. All these organizations plunged headlong to lay bare the facts before the world at large.

The contribution to this operation exposure made by the telltale photographs and the documentaries released by Channel 4 of London, and Director Callum McCrae and Indian media persons like Priyamvatha has been great. The Permanent People’s Tribunal sitting at Dublin examined witnesses, looked into the available evidence and ruled that the Government of Sri Lanka has committed war crimes and crimes against humanity. It also observed that the material placed before it is not sufficient to make out a crime of genocide.

Rajapakshe who was thinking that he had waged a war without witnesses was now made to realize that it was not a war without evidence. The UN Secretary-General’s three-member panel of experts consisting of Marsuki Darusman, Yasmin Sooka and Steve Ratner also categorized as credible allegations the charges against the Government of Sri Lanka that it had committed war crimes in violation of international human rights laws and crimes against humanity in violation of international humanitarian laws.

GENEVA 2012

Later on, when there were initial reports that the USA was thinking of moving a resolution on Sri Lanka in the UNHRC, some in Tamilnadu jumped to demand that ‘India support the US resolution against Sri Lanka’. We then cautioned, ‘No haste, let the text of the draft resolution come out, we may first look into it and then decide’. Eventually, it turned out that the US resolution which neither directly nor indirectly accommodated our three cardinal demands was neither opposed to the Sinhalese government nor in support of Tamils.

The US resolution was only bent upon emphasizing the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Rajapakshe regime to deceive the world. It did not utter a word on the three-member Experts’ Panel report. India, after dragging on for long, supported the resolution, but only after diluting its contents to best of its nefarious ability. The amendment that UN authorities may offer advice and technical assistance to Sri Lanka only with its consent and concurrence was inserted only by India. Even though it was from the Tamils’ viewpoint a useless resolution, we were happy that the Sinhalese were defeated in the voting thereon – the first ever defeat suffered by Sri Lanka on the international diplomatic arena!

GENEVA 2013

It was nearly the same story once again with the next resolution 2013. But the clamor for an independent international investigation had gained strength even before the resolution was proposed. The UN Human Rights Commissioner Ms. Navaneetham Pillay herself had emphatically made such a demand. Human Rights Groups such as the International Crisis Group (ICG), the Amnesty International and the Human Rights Watch (HRW) stressed on this demand. The US itself had to take note of this demand. But there was no direct or indirect provision for this in the HRC resolution.

But this time the Students’ struggle in Tamilnadu was based on clear-cut demands. As the US resolution was useless, we asked India itself to move a resolution incorporating the correct demands (Independent International Investigation and General Referendum). Thanks to the pressure of the struggles of the Tamilnadu students and people, India was forced to align against Sri Lanka in the final voting, but it supported the US resolution this time also only after diluting it. It was India’s handiwork to have removed the directive to Sri Lanka to allow free access to various UN mandate-holders and UN experts, and to have changed the date for the Human Rights Commission to submit its report from September 2013 to March 2014. This time, too, we were not successful as none of the Tamils’ demands were conceded. Yet we were happy that the Sinhalese bit the dust again in the voting.

THE ISOLATION OF SRI LANKA

Though the UNHRC resolutions 2012 and 2013 were similar the delicate differences between them and the changes in the voting pattern were tactically significant in our struggle for remedial justice. These would give us to realize that our struggles have not been of zero avail in this world, and to devise our subsequent tactics.

From the point of view of the Tamils’ cardinal demands, of course, the UNHRC resolutions are of not much difference in content. Yet the results of voting on them is an indicator of how the Government of Sri Lanka is getting more and more isolated on the world stage due to the Tamils’ persistent efforts. The member-states which voted respectively against and for Sri Lanka was 13/26 in 2009, 23/15 in 2012 and 25/13 in 2013. The isolation of Sri Lanka should be more glaring if we take into account the change of member-states in the UNHRC.

THE NAVANEETHAM PILLAI REPORT AND THE COMMONWEALTH

Between 2013 and 2014 sessions of the UNHRC, there were two important developments. In the first instance, the United Nations Human Rights Commissioner Ms. Navaneetham PIllai visited Sri Lanka. The press meet she addressed in Colombo in which she severely denounced the Government of Sri Lanka, then her oral and written report to the UNHRC … all this added strength to the demand for Independent International Investigation Now.

Secondly there was the Commonwealth Heads of Government Meeting (CHOGM) at Colombo in November 2013. First Canada and then Mauritius announced their boycott of CHOGM. The 15-day fast unto the last undertaken by the present writer, as general secretary of the Tamil National Liberation Movement and on behalf of the Movement against Commonwealth in Sri Lanka, the struggles of the students, people and political movements of Tamilnadu, the Tamilnadu Legislative Assembly resolution … all these put pressure on the Government of India and the Prime Minister was prevented from going to Colombo. Even though the British Prime Minister David Cameroon attended CHOGM ignoring the appeals from the Tamils and the opposition Labor Party, his Jaffna visit and his subsequent observations at Colombo strengthened the demand for an International Investigation.

ON TO GENEVA 2014…

So world Tamils looked forward to some effective advance this time when the UNHRC was to meet in March 2014. We, too, expected the same. We did not expect all our three demands to be conceded at once. Not because they were unjust, nor because they were impractical. In a council where only states are members, where the demands of human rights are intertwined with geo-political interests of states, we cannot say for certain how far we would secure our opportunities.

So it seemed a resolution for independent international investigation was likely to be adopted. The other two demands seemed not so likely. What are the crimes likely to be investigated? It is our steadfast demand that the crime of genocide, war crimes, and crimes against humanity are all to be the subject of independent international investigation. But if the investigation is to follow up on the report of the three-member Panel of Experts, the crime of genocide is not likely to be taken up at the outset itself. However, if we can make out as to by whom and against whom war crimes and crimes against humanity were committed, and cite and substantiate the historical background of these crimes, and also prove the genocidal intent of the guilty, this investigation may well extend as one into the crime of genocide, too.

WAR CRIMES AND GENOCIDE

But we do not have the basic strength to say that we will never accept anything short of an investigation into the crime of genocide. Neither the report of the three-member Expert Panel, nor that of the Human Rights’ Commissioner Navaneetham pillay have given a verdict of genocide. But it does not mean they deny genocide.

It was only the Bremen Report of the Permanent People’s Tribunal that spelt out a verdict of genocide. But it is not an authoritative report in the view of the UN and of the member-states. We do not mean to belittle the importance of the Bremen Report. Its verdict of genocide and its findings on the role of the big powers would be of high value in our political campaign. But it is not enough for the UNHRC to take up for investigation the charge of genocide. While we continue to insist on an independent international investigation into the triple charges of genocide, war crimes and crimes against humanity, we do not think this investigation to be a total waste if the crime of genocide is not brought into its ambit.

Some of our friends contend that to speak of war crimes itself is wrong and that genocide is the only correct characterization. True, each war crime or each crime against humanity would not in itself constitute genocide. But to say that war crimes and crimes against humanity were committed is not to hide or deny the commission of genocide.

Substantiate war crimes and crimes against humanity and prove their genocidal intent and this is the means to prove genocide. War crimes and crimes against humanity are but elements of the crime of genocide.

Of course it is wrong to reduce genocide into war crime. But to characterize war crimes as war crimes is not to deny genocide. As a whole what took place was not war crime, but genocide. War crimes and crimes against humanity were committed only as parts of this genocide. The crime of genocide, war crime and crime against humanity -- every one of these is a punishable offence under international law.

All such sloganeering as ‘don’t say war crime, war is itself a crime’ is mere wordplay which would only harm and not help the fight for remedial justice for a people subjected to a cruel genocide.

THE INTERCONNECTION OF DEMANDS

Only if we grasp the interconnection among the three demands of independent international investigation, protective mechanism and general referendum, can we be able to realize that even a small advance with regard to one of these is bound to have its positive impact on the development of the whole struggle. Otherwise these demands may even appear to be in conflict with one another.

Judicial enquiry, investigation and trial are quite different. They can be categorized as three different stages of a legal process of probe. What the three-member panel of experts did was sort of judicial enquiry. What should come next is investigative enquiry or investigation. If and when this is successfully concluded the case should, on reference from the Security Council, be tried by the International Court of Justice or a special tribunal constituted for this purpose. And finally the Judgment.

CRIMINAL JUSTICE AND POLITICAL JUSTICE

We do not believe that all this process would successively and smoothly be carried out. We just indicate the direction of our legal endeavor. Our primary interest is how far this process would help to isolate Sinhalism and encourage the Tamils and transform their moral into political strength. We aim at developing the struggle for political justice through the struggle for criminal justice.

You can conduct and conclude a judicial enquiry even without visiting the field of crime. But investigation can hardly be done so. Will the investigation team be allowed into Sri Lanka? Even if allowed, will people come forward to speak out and cooperate with a proper investigation in a milieu of military hegemony? As an answer to such questions, it would become imperative to get the Sinhalese army out (or at least confined to their camps), and put in place an international protective mechanism. As, once the investigation is over, the international protective mechanism cannot stay there permanently, the demand for a general referendum on the future of Tamil Eelam would become robust. We do not have any illusion that all this would happen automatically. It is our duty to be vigilant and fight every step to push forward the process.

It is with this perspective that we were looking forward to the UNHRC session. It was our demand that India on its own or jointly with some other states move a resolution that would include the demands for an independent international investigation and for a general referendum. Or move suitable amendments to any resolution that might be moved by other states. When it appeared that it was not likely to happen we concentrated on the resolution that was to be moved by the US.

When the first draft of the resolution to be moved by five states, namely the US, UK, Mauritius, Macedonia and Montenegro appeared on the internet, we carefully went through it and discussed. This draft did not even recognize the national question of Tamils, leave alone seeking to solve it. It merely stressed on India’s fraudulent solution of power devolution within a united Sri Lanka and as per the 13^th amendment. There was an appeal to implement the recommendations of the LLRC which were ineffective in establishing justice by way of accountability. There was also the ceremonial request that Sri Lanka itself conduct a credible enquiry into the allegations of human rights abuses.

Therefore nothing wrong in denouncing as dishonest this resolution which was in many respects as disappointing as the 2012 and 2013 resolutions. Yet we also found a few elements in it which could be wielded as a weapon in the struggle for remedial justice. Foremost among them was the directive to the Human Rights Commissioner in the Para 8 of the operative part of the resolution.

PARA 8

Para 8 welcomed the UN Human Rights Commissioner’s conclusions and recommendation that an independent international investigation was necessary in view of the failure of the Government of Sri Lanka to institute a credible internal process of accountability with regard to the allegations of human rights abuses. It asked the UNHR Commissioner’s office to investigate into the abuses and related crimes by both sides. The Commissioner was to report the findings of that investigation orally to the 25^th session and in writing to the 26^th session of the UNHRC.

The resolution did not explicitly speak of an independent international investigation, but it cannot be an internal enquiry. It may easily be understood that an investigation conducted by the Human Rights Commissioner with the assistance of UN experts and Special Mandate Holders cannot but be independent and international in character.

It was the demand of the Commissioner Navaneetham Pillay that the Human Rights Council itself appoint an international commission of investigation. But the truth is: this resolution, in effect, if not in words, paves the way for an independent international investigation. Francis Boyle who severely criticized the 2012 and 2013 resolutions commented on the present resolution, “something is better than nothing.” This something may be small, but, in our view, is pregnant with large effects.

FINAL DRAFT

Compared to the preliminary drafts the final draft was a much diluted one. Para 8 of the old draft was now Para 10. In contrast to the earlier welcome to the Human Rights Commissioner’s report, now it was just noted. But there was no change in asking the Human Rights Commissioner to conduct investigation with the help of UN experts and report to the Human Rights Council.

What are the crimes to be investigated? There was no definite mention of genocide, war crimes, or crimes against humanity. As there is a general reference to related crimes, we can argue for investigating all crimes including genocide. To have limited the period to be covered by the investigation as the one covered by the LLRC is also a shortcoming. But, we believe, the positive effect of the determination of the people of Tamil Eelam and the negative effect of the heavy-headedness of Sinhala supremacism would together lead to the overcoming of these shortcomings of phraseology and periodicity. By just substantiating with evidence as to what happened in the defined period, we should be able to make out the intent of war crimes and the crimes against humanity and proceed to bring home the guilt of genocide.

SUCCESS

Though this resolution was useless from the viewpoint of a solution to the national oppression against Tamils, we thought it a welcome move in a limited sense as one which, though reluctantly, paves the way for an independent international investigation. However we were worried about the danger of India spoiling the whole exercise.

Well. The resolution has somehow been successfully passed. A defeat not only to Sinhalism, but also to Indianism. Only after being frustrated in its joint attempt with Pakistan to delete Para 10 leading to an international investigation, did India run away by abstaining from voting on the resolution. Though several reasons are cited for India to shy away this time, the prime reason is: this was not a toothless resolution as the earlier ones. It is well aware of the repercussions of an independent international investigation. Oh, that could put the Government of India in the dock along with the Sinhalese government!

INVESTIGATION AND THE SINHALESE REACTION

The process is on for an international investigation. Won’t accept this, says Rajapakshe. So, the world will have to impose sanctions, warns Yasmin Sooka. Countries like China might stand in the way of prospective UN sanctions. Even then North American and European sanctions could not be stalled. The movement to boycott Sri Lanka would take global dimensions. In India, too, we can carry out this movement energetically – if we try.

The significance of the advance achieved in paving the way for an international investigation can be gauged from the ferocious reaction of the enemy. Sri Lanka has rushed to ban diaspora Tamil organizations. Has also declared certain individual leaders to be terrorists. Has shot dead three young Tamils on the pretext of preventing the revival of the LTTE. Has intensified repression in the North. On the other hand, neither the world Tamils nor the international communities are to be scared by such Tiger bogies. The Sinhalese Government’s conspiracy to divide the homeland Tamils and diaspora Tamils is bound to fail.

Collection of evidence of the crimes committed by the Sinhalese armed forces has started in right earnest. The TGTE has already released the first list of war criminals involved in the genocide.

What are we, the Tamils of Tamilnadu, going to do? If we feel guilty of failing to prevent the war of genocide at the right time, let us at least now in the struggle for seeking justice, gather all our strength to isolate Sri Lanka. Let us erase the bad name we have earned of being good connoisseurs of fighting either reel or real. Let movements and parties of Tamilnadu putting aside their differences of opinion and mobilize the people of Tamilnadu and put up a united fight. Let Sinhala supremacism and Indian imperialism shudder at the valiant uprising of the Tamil people.

- Thiagu (This email address is being protected from spambots. You need JavaScript enabled to view it.)

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