Several cases of genocide established through International Criminal Law
The term ‘genocide’ was coined by Raphael Lemkin in 1944 and used in the Nuremberg Trials in relation to the Holocaust of the Jewish people in the Second World War. The Genocide Convention of 1948 followed and the international human rights system developed to ensure “never again”. However, as it is common knowledge, less than fifty years later genocide took place on a grand scale again, in 1992 – former Yugoslavia, in 1994 – Rwanda and in 1995 – Srebrenica. The ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda (ICTY and ICTR) judged that genocide took place and convicted and sentenced some of those responsible. It is to be noted that genocide is defined in the Genocide Convention, as certain acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group – see article 2 of the Convention. Article 6 of the 1998 Rome statute uses similar phraseology.
The first international conviction for genocide was the Rwandan Akeysu case in 1996. The trial considered the scope and elements of genocide. It defined what constitutes a protected group and it recognized individual criminal responsibility for acts committed by sub-ordinates. The trial concluded that the victim is the group itself and not only the individual.
The perpetrator and the victims have completely different narratives. Perpetrators deny the atrocities they commit and do everything in their power to prevent the classification of their crime as genocide and the ‘interference’ of other states. They have the means and power to do this, usually with all the infrastructures and apparatus of a state, unless the state has collapsed as in ex-Yugoslavia and the Hutu run regime in Rwanda. For the victims it is different. They have to work tirelessly to reveal the truth, peeling away the layers of untruth and cover-up lies. It was 21 years after the genocide in Srebrenica, that Radovan Karadzic was finally convicted and sentenced on 24 March 2016. Turkish governments have persistently denied the genocide against the Armenians in 1915 – it took the courage of a Pontiff such as Pope Francis to tell the world that Turkey committed genocide against the Armenians.
The case of Sri Lanka
It is remarkable that when it comes to Sri Lanka, the true facts are not widely known, despite rigorous human rights reporting over many years. Not once or twice, but many times has the word genocide been used authoritatively to describe the situation in Sri Lanka, by different analysts, researchers and human rights organisations.
Each decade, despite events that clearly constituted stages in the genocide process, no preventive measures were introduced. No effective protection was put in place. On the contrary, the Sri Lanka government in power, whichever of the two main parties it was, (United National Party – UNP or Sri Lanka Freedom Party – SLFP), succeeded in undermining any arguments about genocide occurring, putting blame on the victims themselves, a process which is in itself, an indicator of genocide.
Denial has consistently and proficiently been used as a calculated strategy by perpetrators to conceal reality. In this article I will analyse the ten stages of genocide with reference to the situation in Sri Lanka. I have already mentioned the tenth and final stage, which is denial.
Setting the grim foundations for genocide to occur
The first three stages of genocide are Classification, Symbolisation and Discrimination. There will inevitably be classification of differences, or ways of distinguishing between ‘us’ and ‘them’, within most countries. Cultures have categories to distinguish between people for example, by ethnicity, race, religion or nationality. Many societies are pluralist without problems between different groups of people. They have institutions that promote tolerance and understanding, social and legal mechanisms ensuring these important values are respected and universal policies that transcend racial or ethnic divisions. The promotion of a common language can also help prevent problems and enhance equality and communication. Difference in itself is not the problem, as long as common ground can be found and equality ensured. It can even bring vibrant and enriching diversity. Unfortunately, this has not been so in Sri Lanka.
Tamils existed as a distinct people, with their language, culture and religion long before colonial rule. The Portuguese (1505) and the Dutch (1658) ruled the Tamil Kingdom in the North and East, separately from the two Sinhalese kingdoms in the South. Therefore, classification was obvious. Symbolization, to denote or identify the targeted group, was also not needed initially in Sri Lanka. Identification by name, language or outward features of religion, were sufficient. I will return to symbolization, as the issues unfold later, cyclically, since it was an aspect which contributed significantly to the pace of eventual genocide.
Discrimination against the Tamils has been extensively documented. The latest report, from the UN Committee on the Elimination of Racial Discrimination, was distributed on 26 August 2016 [ii]. It outlines the severity of the current problems. The preventative measure which could have halted the relentless trajectory towards genocide, would have been to outlaw discrimination. But, on the contrary, discrimination was systematically condoned and legalized, by the majority dominant group, who continually held the reins of power. Discrimination could have been outlawed when it appeared on the scene in the 1940s and 1950s. Denial of citizenship to the Tamils living in the plantations in 1948; the changing of the demography of the East by colonization to decrease Tamil voting capacity; then the infamous Sinhala Only Act of 1956, all entrenched discrimination at fundamental levels. Rather than using a unifying language, to promote understanding, the majority community language, Sinhala, was favoured and Tamils denied equality at the most basic level of communicating with officialdom. Later, a raft of discriminatory legislation including: in Education rights (1971); the abolition of section 29 of the constitution which protected minority rights (1972); and the constitutional favouring of Buddhism over the other religions practiced on the island (1972), constituted calculated and legalized discrimination, against which Tamils had no means of redress.
This multi-layered entrenchment of institutionalized discrimination against Tamils was never reversed. For 30 years Tamils attempted through democratic parliamentary means to gain equal rights, their right to live in peace and dignity, on their own land where they have lived for over 3,000 years. Whichever of the two main Sinhala political parties (SLFP and UNP) won the elections, they never enacted legislation promoting and guaranteeing equal rights for all. The imbalance of power and the need for a two third majority in parliament to repeal discriminatory legislation meant it was impossible to effect change without the participation of enough members of the majority community to support it. This required a paradigm shift of respect for difference and equality of the ‘other’. But not enough of the majority community held this other worldview. Most believed the misinformation they were fed, leading to the awful next stage.
The fourth stage – dehumanization – key to the trajectory towards genocide
Once discrimination is legally entrenched and unchallenged, there is the possibility of hate vocabulary is rising and language denying the humanity of the other group appearing. This paves the way for the critical fourth stage in the horrific slide towards genocide – dehumanization. Unfortunately this occurred in Ceylon/Sri Lanka, led by pronouncements from the majoritarian Sinhalese leaders. In the early 19th century, Sinhala revivalist Dharmapala referred to Tamils as aliens and exploiters[iii]; President Jeyawardena said in 1983 that to keep the Sinhalese happy he was prepared to starve the Tamils[iv], President Wijetunge described Tamils as parasites on the tree of Sinhala people on whom they should be dependent[v], Chandrika Kumaratunga said Tamils were not an original people of the island[vi] and the last President Mahinda Rajapaksa made many racist statements concerning the Tamils. These are only a few of the many inflammatory racist statements made by Heads of State, denying the equality of Tamils, and misleading ordinary Sinhala people into not only contemptuous disrespect, but then vicious and dangerous hatred.
Dehumanisation, if not forbidden, can lead to organization of killings and polarization – the fifth and sixth stages. As was seen, in Sri Lanka, it was the very law-makers themselves who promoted racist discrimination and dehumanization. So of course there was never any enactment of legislation to forbid the hate language of dehumanization.
Normally, human beings are naturally repulsed by murder. Dehumanisation overcomes this. In the case of Sri Lanka it is important to understand that there is an ideology underpinning the dehumanization of Tamils. A proponent of this was Dharmapala, already mentioned. A sacred text believed to be Buddhist, the Mahavamsa, was distorted to glorify killing in defence of Buddhism. It has been written about by many academics in the past. Sinhala chauvinist nationalists fundamentally believe that the island state should be totally Buddhist Sinhalese. The text has been used since the 1930s to state that it is permissible to kill Tamils as they are not fully human. This reality may seem ludicrous, so not taken seriously by those outside Sri Lanka in the international community. But it is taken deadly seriously by the Buddhist prelates and Sangha who wield massive unofficial and official political power regarding government and the Sinhala population[vii].
If this pernicious misinterpretation of Buddhism in Sri Lanka is not understood, it is impossible to follow the tragic events. Leaders who have consistently incited violence against Tamils throughout the decades, met no confrontation which could have halted the trajectory towards the most extreme violence. Impunity has reigned and reigns. To prevent genocide, such leaders should have been banned from foreign travel. But they were met, educated and welcomed in the capitals and most prestigious universities in the world, where the mistruths referred to earlier were promulgated.
Hate crimes and atrocities should be immediately investigated and perpetrators punished. But in Sri Lanka, the early pogroms of 1956, ‘58, ‘77, ‘81 and ’83 were inflicted against the Tamils and there was no punishment at all for those responsible. The international community was aware of what was happening but chose to turn a blind eye.
Organised killings (the fifth stage) and polarization (the sixth stage) – resulting from dehumanisation
The fifth stage in genocide is the organization of the killings, usually by the state, or its agents, as it has the apparatus to facilitate this either directly or indirectly. In Sri Lanka this had been happening since the 1950s, sponsored by those in power, who crushed the non-violent protest of Tamils against discrimination referred to earlier. As the decades continued, organization of the killings became more systematized. Starting with tens, then hundreds, then thousands of victims it finally became tens of thousands.
Documentation of the killings is extensive. Many media have published these facts. So do human rights organizations[viii].
The sixth stage is polarization, where extremists and their hate groups broadcast polarizing propaganda. At this point state media organs become complicit in the polarizing. After the election in 1977, when Tamils voted in exercise of their right to self-determination, having been denied access to equal rights as outlined above, Tamil MPs were denied the right to even talk about a solution for the Tamil ethnic issue. Yet it was their election manifesto which Tamil people in the North and East had voted for, overwhelmingly. In parliament itself, in 1981, two Sinhala MPs described horrific torture methods to be used against Tamil MPs if they dared to talk about their right to self-determination. These Sinhala MPs were unafraid to give their inhumane, degrading and abhorrent views[ix]. There are many other examples to give of how polarization was engineered to further embed a forceful and violent dynamic of ‘us and them’ which balked at nothing in the pursuit of dominance and violent power over the Tamils.
The seventh stage – preparation. Followed by persecution (eighth stage)
In the seventh stage, the state, having polarized society, arms itself against the targeted group, and indoctrinates the majority population of the South, with an irrational fear of virtually all members of the targeted victim group.
It needs to be said that 100% of the Sinhalese could not be indoctrinated – some remained humane and assisted Tamils for instance during the pogroms. But their numbers were too small to effect change, to put measures in place to address the causes of the problem and to prevent the violence. In fact these individuals were (and are) courageous enough to face the risk of becoming, they themselves, the target of hate crimes and killing by Sinhala chauvinists.
Peaceful demonstrations and protests by the Tamils in the 50s – 70s were met with armed violence perpetrated by the state. This armed violence then became a tool used to systematically persecute.
Persecution is the eighth stage. This is built on the preceding stages, which nevertheless continue to operate. In 1981 the Jaffna Library with 95,000 volumes of books and texts relating to Tamil culture and history was burned to the ground, by agents of the Sri Lanka state, in a calculated act of what has been termed “Memorised”[x] – an attempt to kill off the Tamil people’s collective memory by eliminating their cultural and historical heritage. Senior government officials and leaders were involved. Two years later, in the 1983 pogrom in which over 3,000 Tamil people were killed – torched alive and butchered[xi], petrol used was kept ready at the Ceylon Petroleum Corporation, under the jurisdiction of the Industries Minister. Electoral lists were used to identify the homes of Tamil people. Their names, and in some case their inability to read Sinhalese, were used to confirm their identity as Tamils, leading to immediate summary execution in their homes and in the streets. The International Commission of Jurists reported that “Genocidal intent” was evident, due to the state orchestrated nature of the violence[xii]. This was extensively documented[xiii].
In response to these heinous events, there was again failure by the international community to set up an independent international inquiry to investigate, identify and punish the perpetrators, as well as to investigate the root causes of the issues. Yet it was clear there was no possibility of domestic remedy. The international community had pity and sympathy for the Tamils in 1983 but did nothing to encourage repeal of the entrenched discriminatory legislation or stop the dehumanizing processes leading to the terrifying torture and execution of thousands of Tamils. The Prevention of Terrorism Act – PTA, enforced from 1979 to this day, enables torture, arbitrary arrests, rape, enforced disappearances and summary executions to happen with chilling ease. It permits confessions made under torture as admissible in court. Perpetrators of these violations against non-derogable human rights are confident they will not be brought to book. On the contrary, they would sometimes be rewarded with promotion. On 27 July 2016, the Anuradhapura High Court Judge (a Sinhalese) acquitted six former Army personnel indicted over rape and murder of 26 Tamils (13 women and 9 children below the age of 12 and critically wounded several others) on 11 February 1996 in Kumarapuram, Trincomalee. This is one example of many cases, revealing the partiality of the Sri Lankan judiciary.
Since the end of the war a new situation has arisen. Suspected injections given to former cadres, resulting in illness and deaths, need to be investigated.
Response to persecution
In the late 1970s the Tamil youth had already started to rebel, as they saw no results from decades of parliamentary protest by their elders who tried to change things for the better. The peaceful protests of the 1950s, ‘60s and ‘70s had been met with merciless suppression by the military and government sponsored Sinhala thugs, costing many lives. The youth, supported in fact by their elders, started to build armed resistance. This was birthed by the organized state violence (especially in July 1983) against the Tamil people. Under international law the case has been made that the Tamils’ legitimate fight in exercise of their right to self-determination, was a result of all other means – whether peaceful or parliamentary or both – to redress the discrimination and persecution, having been in vain. The young Tamils who took the struggle to its second phase, took the fight for self-determination to the next level.
The government was bound by the Geneva Conventions to conduct the war in line with the laws and customs of war; but instead, it conducted a genocidal war against the Tamils. One indication of this is the gender-based violence. It should be noted that the ICTR, in the Akeyesu case, (in which former HCHR Navaneetham Pillai was one of the Judges) held that rape in the course of an armed conflict, whether international or non-international can be genocide[xiv]. Tamil women were raped and killed systematically. Rape was used as a weapon of genocidal war. The assault on women was to denigrate and humiliate them individually but also the Tamil population as a whole. Even the way Tamil women were killed changed, in order to destroy the evidence more completely.
The narrative of the Sri Lanka Government was that they were fighting ‘terrorism’ – the ‘terrorists’ being the Tamils who were fighting ‘to carve out a separate independent state for themselves’, a phrase slavishly repeated by the world-wide press. In fact Tamils have lived in the North and East for more than 3,000 years, as already stated.
State violence against the Tamils was now transferred from organized thugs orchestrated by the authorities, including politicians, and some army personnel – to the full three armed forces (land, sea and air), intelligence services, mercenaries and paramilitaries. These last were usually Tamils co-opted to work for the state, against Tamils who were resisting oppression and fighting for Tamil liberation. Tokenistic government appointment of Tamils to certain internationally influential political positions, served to deceive the international community, by promoting a false notion of a ‘pluralistic’ state.
The narrative of the liberation movement of the Tamils was that they were fighting a genocidal state, to protect their people and nationhood, in the contiguous territory of the North and East, which had always been theirs. So it was about defending their right to live, work and be in their own land, managing their own affairs. The only solution for protection was felt to be a self-governing, independent state. This arose from lack of any serious evidence that their rights would be respected in a unitary state, and the failure of attempts to discuss federalism in earlier decades.
In 2008, in my article on the Tamil people’s right to self-determination in the Cambridge Review of International Affairs, I analysed more fully than I can here, the fact that the war conducted against the Tamils was genocidal[xv].
The mechanisms of the stages of genocide have remained in place for decades.
After 1983 Tamils flocked to the Liberation movements (such as the Liberation Tigers of Tamil Eelam – LTTE) to join them, to protect the people’s right to life and to freedom. Concern the international community had for the Tamils in 1983, unfairly dissolved. Rather than examine the genocidal intent which had been clearly documented as already shown, and bring to book the perpetrators, the apparatus was left intact, not dismantled, cleverly concealed by the government. The ‘counter-terrorism’ discourse of the Sri Lanka Government, deflected any demand for accountability for their actions, despite the fact that even the counter-terrorism measures are subject to the non-derogable rules of international human rights provisions. The government vilified the victims who had been driven to take up arms as their last resort of self-defence. The only other alternative for the Tamils, which appeared to be to acquiesce to annihilation, was unthinkable. The Tamil people have an immensely rich identity and culture to cherish and protect.
As mentioned at the beginning of this article, it had not been necessary for the perpetrators of dehumanization to use a symbol to mark Tamils out, in the way that Jewish people had been marked out insidiously by yellow star badges in Nazi Germany. Culturally, Tamils can be identified by language. Also they can be identified by religious markings such as a pottu, or holy ash, on their forehead or by their national costume. After the emergence of the armed struggle, the entire Tamil people and anyone who supported their legitimate legal cause was denoted ‘Tiger terrorist’. The word “Tiger”, taken from the liberation movement’s name, was then used to denote any Tamil as worthy of torture and humiliation. Tiger (terrorist) equals Tamil and vice versa. At the same time, those who supported the LTTE, were proud of the protective ‘Tiger’ symbol of the liberation movement, linking to heritage and rejecting the politically-motivated label of terrorist given by the successive Sinhala governments. It needs to be noted that Sinhala chauvinism describes the Sinhalese as ‘proud to be lions’.
Final solution – Extermination – the ninth stage
In the ninth stage of genocide, extermination, mass killings are carried out by state backed groups. In Sri Lanka, the hideous final solution in 2009 involved the killing of tens of thousands of civilians, anywhere between 70,000 and 140,000. It was meticulously calculated over a period of three years, as the Secretary of State during this final stage of the war, boasted afterwards. The genocidal machinery of the Sri Lankan state was not bothered in the least about the horror inflicted, insisting there were ‘zero’ civilian deaths, having deliberately targeted even hospitals and safe zones. The final solution followed three decades of repression, persecution, assassinations of human rights defenders, massacres, bulldozing of mass graves etc within the war period. Continual calls for investigations, from concerned organizations, had been met with powerless commissions of inquiry and biased trials allowing perpetrators to go free. No corrective measures were put in place and perpetrators were supremely confident they would not be punished. Some were even rewarded with the role of representing the country abroad in high-level posts.
The tenth stage as stated in the title of this article – is denial. After the defeat of the LTTE in May 2009 Sri Lanka immediately set about defending itself through utter denial in the United Nations Human Rights Council – UNHRC, pushing forward its own resolution to congratulate itself on its human rights record! It was passed on 27 May 2009.
Denial is the surest indicator of further genocidal massacres, persecution, exterminations. The Tamil land in the North and East is rapidly being Sinhalised, Buddhisied and is still militarized, even seven years after the end of the war. Land-grabbing of Tamil civilian land persists, including for tourism developed and run by the military. It is a continuing war against the Tamil people and their rights[xvi].
Genocide does not happen overnight, it has its relentless mechanics and stages, overlapping, accumulating and consistently moving forward in its inhumane and brutally hideous vision, continually working to find new covert and masked overt ways to suppress and wipe out its victims. Understanding the stages of genocide is the only way to understand what happens in Sri Lanka when it comes to the Tamil question. Fortunately we are now living in an era when the international community is beginning to see this missing jig-saw piece. The Channel Four perceptive broadcasting, is one of the signs of hope that the truth cannot be suppressed. Action to halt further genocidal actions needs to take place as soon as possible. Perpetrators must be punished.
WikiLeaks information in 2012 revealed that Sri Lanka had been warned in 2009 that “if the government pursued a military option without first allowing high-level diplomacy a chance, Sri Lanka could expect escalating international criticism and actions to demonstrate the international community’s concern… such actions could include suspension of aid to Sri Lanka, closer scrutiny of IMF lending, possible war crimes investigations, and perhaps other actions.”
The Office of the High Commissioner for Human Rights – OHCHR has worked consistently to document the situation, attempting to promote and protect Human Rights. The OHCHR Investigation on Sri Lanka (OISL) report is a strong indictment against Sri Lanka. It recommends an independent international investigation through proper courts to establish the truth of what happened. An independent international investigation and referral to the International Criminal Court – ICC is the only way forward. The Sri Lankan government’s claim that Sri Lanka is not a signatory to the ICC should not obstruct justice! (Is Sri Lanka not aware that Sudan is not a signatory to the ICC either!) As the government of Sri Lanka has stated that its war was conducted in accordance with the laws and customs of war, surely it has a lot to gain by allowing an international investigation of its conduct of the war.