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Genocide and Human Rights in Sri Lanka-Re-visited

Point of View by A.Rajasingam

Today the UN is burdened with the problem of genocide and terrorism which are inter-twined and complex. These problems exists in developing countries including some multi-racial countries. Terrorism in any form which is committed by anyone or group has to be condemned unequivocally. In Sri Lanka though the Government is waging a war on terrorism, the Tamils have to clear all the hurdles to prove that the government is committing genocide on the pretext of fighting terrorism. A careful study of the Geneva Convention on Genocide together with other Resolutions on suppression of Terrorism, Declaration of Human Rights, Sri Lanka Constitution and the Prevention of Terrorism Act have to be scrutinized in dealing with genocide. The basis of the applicability of the international humanitarian law are the Geneva Conventions where armed conflict occurs and deal with the general protection of civilians.

Article 2 of the Geneva Convention on Genocide describes 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 and Forcibly transferring children of the group to another group. Article 3 of the Geneva Convention on Genocide goes on to state that genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide are punishable.

Finally, Article 4 states that whether persons are constitutionally responsible rulers, public officials or private individuals, they shall be punished for committing genocide or any of the other acts enumerated in Article 3.
Article 25 (1) of the UN Declaration of Human Rights states that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care, all of which are considered as basic necessities.

Crimes against humanity include murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment depriving physical liberty in violation of fundamental rules of international law, torture, sexual slavery, rape, persecution against any identifiable group on political, racial, ethnic, religious and other similar grounds which are not permissible under international law, enforced disappearance, crime of apartheid and other similar inhumane acts causing great suffering.

Simultaneously, the United Nations General Assembly had paid attention on terrorism which was a menace to democracy. It adopted two counter-terrorism related conventions: the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons in 1973 and the International Convention against the Taking of Hostages in 1979 and thereafter number of Resolutions were adopted. With the passage of time terrorism began to spread its ugly tentacles pausing as a dangerous element to all democratic countries. The birth of terrorism originated from religious fanaticism, political oppression, etc.

Terrorism showed no respect to anyone. It did not even spare the innocent sportsmen from Munich Olympics Games to the Sri Lankan cricketers at Lahore. Problems arise when innocent civilians got caught within the conflict when countering terrorism. The General Assembly has been consistently addressing on the issue of terrorism issue and adopted several counter-terrorism related Resolutions. The war on terrorism is a battle between the visible and the invisible. As such violation of human rights is a matter of concern.

Chapter 3 of the Constitution of Sri Lanka contains provisions of fundamental rights. Simultaneously, the Prevention of Terrorism Act also describes certain acts that amount to terrorism. But no where is terrorism is defined. Upon a close examination of the Act, there are contradictions between the provisions of the Sri Lanka Constitution and the Prevention of Terrorism Act. Further, Sri Lanka is a signatory to the International Covenant on Civil and Political Rights, Convention on the Elimination of all forms of Discrimination against Women, the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment.

One can understand the problem of the United Nations in dealing with the terrorism. Great Britain, Canada, Malaysia and a host of democratic countries handled the issue of discrimination swiftly, leaving no room for the birth of terrorism in their constitution, a fact that Sri Lanka should learn. Neverthless, international terrorist groups continue to pose a threat to the stabilization of democracy. Terrorist groups should realize that fanaticism is not the answer.

However, the consequence of the discrimination shown to the Tamils eventually led to the prolonged detention of suspected innocent Tamils without any charges by the successive governments, while the politicians having links with the the terrorists and the notorious criminals, are still enjoying immunities, has become a matter of concern. What was astonishing was the disregard shown by some Ministers to the Supreme Court Order and the unanswered questions relating to the mysterious deaths of important witnesses pertaining to the connection with the terrorists. The question that arise, is should the innocent Tamils suffer for the clumsy handling of the rulers.

How will the provisions of the Geneva Convention on Genocide lend a helping hand to the helpless Tamils in such a situation? Since the clumsy handling of the ethnic issue demonstrates a dishonest motive on the part of Sri Lanka, there is a paramount duty on the international community to rescue the helpless Tamils and compel both warring parties to begin negotiated political settlement.

Since Terrorism has the force of demolishing the very foundation of the structure of democracy posing an imminent danger, priority is generally given to deal with terrorism with due care for the safety of the civilians. The attack on the Twin Tower on September 11th and the attack on London demonstrates that terrorists do not have any concern for hundreds of civilized races because of their evil motive. Both Britain and America were civilized States that have accommodated several hundreds of races without any discrimination.

Problems do arise in a country with complexities as to race, religion, and language when its constitution allows room for discrepancies. The main aim of the constitution is to maintain peace and rule the country for the benefit of the people without any discrimination. A constitution should be framed with a sense of care for the adjustment of the relationship between the powers of the government and the rights of the people. If the constitution is drawn with evil motive to suppress the ethnic community with the murders of journalists and eviction of NGOs, then the State becomes a 'rogue State' where politicians attempts to conceal their corrupt practices, they had with the terrorists and the criminals. Further, the conflict between the ruling politicians and their opponents, who had adequate knowledge of the dealings with the terrorists, led to the use of the State machinery (Armed Security Forces) to wipe out their opponents in order to conceal their corrupt practices. Politicians should realize that a Constitution is a living document which sets out a plan of government and should not be changed at their will and pleasure.

The rejection of any compromise and the breach of the so-called 2002 ceasefire agreement coupled with the denial of access to journalists and the international NGOs are considered as intolerant practice to crush the Tamils mercilessly. This is not promising and calls for intervention by the international community, given the fact that Rajapakse's regime altered the prevailing democratic level of government into a totalitarian State. This is a continuation of the other form of Srima-Shastri Pact of 1964 which paved the way for the repatriation of more than 500,000 hill country Tamils to India. All repressive practices by successive governments showed signs of lack tolerance and nullified any attempt on confident building measures. Now the JVP and the JHU have joined in the forefront of such practices.

In Sri Lanka, all peace proposals have been virtually originated from the ruling party only and wanted to thrive on it by forcing on the minority community. It had not originated from a centrally collective decision which would reflect the opinions of various communities. At present, the few Tamils who are close to Mahinda Rajapakse are not creditable individuals. They should realize that Peace Package does not mean giving concessions with one hand and snatching same with the other hand by way of placing procedural constraints on the Provincial Councils. The accommodation of the paramilitary groups is to show the world that the root cause of Sri Lankan conflict never lies in the anti-communalist policy of the government when there are sufficient evidence of their atrocities. The paramilitary groups are still engaged or instrumental in encouraging the Security Forces to systematically exterminate the Tamils, apart from the atrocities committed by the LTTE. It is this situation that should have been deplored by the international community and take necessary steps to halt the persecution of innocent Tamils.

Upon an examination of the Geneva Convention on Genocide and the UN Declaration of Human Rights in the context of the past records of Sri Lanka's successive governments, Prof.M.Sornarajah is absolutely correct in his stand that there is a responsibility for the international community to protect the innocent Tamils.

Another contributing factor for committing genocide on the pretext of waging a war on terrorism at this crucial hour is the inability to challenge the sound argument that federalism can outperform unitarinism to date. This is tantamount to squeezing the voice of federalism. Successive governments have resorted to repressive practices, disregarding the rule of law and signaling the emergence of a totalitarian State like the Communist countries, to deal with people favouring federal solution, on the pretext of waging a war on terrorism. The ulterior motive of the southern politicians is to deny wider participation as envisaged in federalism by the people in the administration, to conceal their corrupt practices. Had there been a tax structure on the Canadian model, none of the politicians can escape to account for the vast amount of wealth amassed illegally, which was also a contributing factor to commit genocide like in Phillipines during the period of Marco and also Imelda. This is also one of the reasons for successive governments to resort to repressive practices. Such intolerance tend to commit genocide on the pretext of waging a war on terrorism.

Moreover, there are difficulties in identifying a terrorist from that of a civilian. However, persecution of innocent Tamils en masse without showing tolerance is treated as acts of genocide. Since the concepts of 'Genocide' and 'Protection of Human Rights' are inter-twined and complex, Rajapakse cannot deny responsibility for the deaths and injuries which are accounted as Crimes against humanity. It would have been acceptable had he tendered an apology to the victims when taking such a deterrent action to wipe out terrorism. But Rajapakse has miserably failed to take adequate preventive measures, such as placing a meaningful solution, all of which goes on to prove Sri Lanka was a failed State. The question of placing a solution after the complete victory demonstrates the cunningness of the ruling politicians. In contrast, the Western democratic countries sacrificed their soldiers to restore democracy from the clutches of terrorists and do not deny access to journalists and the NGOs.

Western countries always demonstrate their sportsmanship when civilians are targeted accidentally, but they do not engage in committing genocide. Here is a case where Sri Lanka is engaged in ethnic cleansing in order to squeeze the voice of federalism, an act contrary to the provisions of the Declaration of Human Rights, by denying access to journalists and the NGOs. As such mere call for accommodation of IDPs appears to be a farce. The difference of the treatment by Sri Lanka would be publicly known if the Western countries steps to evacuate the Tamils in North-East Sri Lanka, where it is certain that the Tamils are ready to welcome them.

If Rajapakse's government is really genuine, is it prepared to place a federal solution on the Canadian model, or American model or Indian model immediately instead of placing after the completion of the war. If this solution is unacceptable, they should point out the defects in such models including the paramilitary groups. Everyone has a suspicion when Sarath Fonseka remarked that Sri Lanka belongs exclusively to the Sinhalese which statement was not condemned by Rajapakse and his coterie. I presume that this is the position at this juncture.

It is urged that the formation of an Asian Council within an Asian Union would greatly reduce the ethnic conflict to a great extent in lending its arms to strength the provisions of the Geneva Convention on Genocide and UN Declaration of Human Rights to assist the United Nations. The dealing of terrorism should be confined with the concept of 'one man's terrorist is another man's freedom fighter'. The manner of tackling terrorism requires reconsideration. Since democratic countries are concerned about civil values, they tolerate for sometime and then take time to fight terrorism because societies are built upon civil values. But totalitarian countries do not tolerate such menace and are not the least concerned for human rights violation in dealing with terrorism and so with countries with Marxist ideologies.

(The writer was a practicing Attorney-at-Law in Sri Lanka)

1 Comments

The test for politicians for human rights abuse is to look at their bank accounts held always in Switzerland and identify whether they are first guilty of financial misappropriation. This cardinal sin points to other weaknesses in character to operate within the political arena. Most politicians are blessed with overblown egos until they are finally booted out of power. The next indicator of megolomania will be their attempts to stop all dissident criticism of their actions by any means open to them. They will then tamper with the constitution to give themselves unquestionable powers to conduct their corrupt policies. They will look to secure for themselves massive security protection from the state while in power and even when they have been booted out. Does this fit the description of the current leader of Sri Lanka and all former leaders. The citizens of all nations have the inalienable right to have removed by force all leaders that resort to dictatorship even in the name of the majority if that same majority is guilty of genocidal actions against the minority citizenry. Wake up UN the holocaust has not been that distant a memory........

Posted by: Des Murray | March 21, 2009 06:55 AM

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