The International Crime of Genocide: The Case of the Tamil People in Sri Lanka Tamil Information Centre December, 1997 The International Crime of Genocide: The Case of the Tamil People in Sri Lanka C Tamil Information Centre, 1997 ISBN 1 85201 011 8 Published December 1997 Layout K Krishnarajah Cover Photo Stephen Champion ABOUT THE AUTHOR Lutz Oette, a German citizen recently completed his LL.M at the University College of London. He was the winner of the 1996 Cheng Cheng Nan Prize in International Law. His research interests include International Protection of Hu- man Rights, Human Rights in the Developing World and Asy- lum Law and Practice. He is currently working on a report on Torture and Inhuman and Degrading Punishment in Saudi Arabia. He also works as a research assistant for Profes- sor Mendelson in London on various aspects of Interna- tional Law. Mr Oette has produced several briefing papers on Iraqi Kurds addressing the current situation in terms of legal, political and socio-economic issues and assisted in the cases concerning Kurds in Turkey to be brought before the European Commission on Human Rights and European Court of Human Rights. Acknowledgements Tamil Information Centre (TIC) gratefully thanks all indi- viduals and organisations who provided financial contribu- tions, their time and shared information and source materi- als for this report. Our special gratitude, however, goes to the author and the volunteers without whose support and commitment this report would not have been possible. The International Crime of Genocide: The Case of the Tamil People in Sri Lanka The greatest sage poet of classical Tamil literature Thiruvalluvar's statue in Jaffna desecrated by the Security forces in 1983 in a fren- zied ethnocidal attack. Contents Introduction 1 The Historical Background 3 The Definition of Genocide 5 The Historical Background of The Genocide Convention and Its Current Status The Definition of Genocide in the Genocide Convention Critique of the Definition of Genocide in the Genocide Convention Non-Legal Definitions of Genocide The Genocidal Society: Causes And Functions of Genocide The Process of Genocide The Understanding of Genocide as Adopted in this Study The Genocidal Process 15 The Right of the Tamil people To Self-Determinatiion Political Self-Determination Colonisation Economic, Social and Cultural Development Language Religion Culture Education Economic Development Health Communication Violation of Fundamental Rights The Process of Dehumanisation Conclusion: Genocidal Process Acts of Genocide 36 The Evidence The Charges The Acts Intent Government Responsibility Enforcement of The Genocide Convention 55 The Existing Enforcement Mechanisms The UN Record of Preventing and Punishing Genocide UN Record on Sri Lanka Sri Lanka’s Record of Enforcing the Genocide Convention Humanitarian Intervention The Indian Intervention in Sri Lanka Possible Alternative Enforcement Mechanisms Preventing Future Genocide: Recommended Strategies 70 UN High Commissioner for Human Rights UN Commission on Human Rights 1503 Procedure The International Community Recommendations 76 Sri Lanka Introduction Skull and bones representing a Tamil victim enocide is the ultimate crime under interna- tional law, a crime against humanity. Bring- G ing forward charges of genocide is a grave accusation. In the case of Sri Lanka, which ratified the Geno- cide Convention in 1950, these charges have been brought forward by Tamils against members of the Sinhalese majority, in particular members of succes- sive governments. This study will not set out to de- termine individual guilt since this would require a thorough judicial investigation. Rather, based on the legal definition of genocide and on sociological ap- proaches on the genocidal process and the so-called genocidal society, it will focus on two interrelated issues. Firstly, what characterises a society in which geno- cide is likely to occur and can Sri Lanka be described as being such a society? Secondly, have there been acts of genocide in Sri Lanka and, if so, who has been responsible for these as evidenced on a prima facie basis? This examination, while not ignoring the issue of punishment, will be focusing on the pre- vention of genocide. In this regard, enforcement mechanisms provided under the Genocide Conven- tion and their effectiveness will be scrutinised. Fi- nally, based on the findings of this study, a strategy will be developed with a view to prevent acts of geno- cide taking place in Sri Lanka in the future. The International Crime of Genocide: The Case of the Tamil People in Sri Lanka 1 The space-related identity of Sri Lankan Tamils Source:Tennent J. Emerson, Ceylon, Colume II, Longmans Press 1859 Two Different nations, from a very ancient period, have di- vided between them the possession of the Island: the Sinhalese inhabiting the interior in its Southern and Western parts from the river Wallouwe to Chilaw, and the Malabars (Tamils) who possess the Northern and Eastern Districts. These two nations differ entirely in their religion, language and manners. Sir Hugh Cleghorn, British Colonial Secretary, June 1879. 2 The International Crime of Genocide: The Case of the Tamil People in Sri Lanka The historical background ri Lanka is composed of several ethnic and Of more importance to the current conflict is the his- religious communities. The two biggest are torical location and current geographic distribution S the Sinhalese majority, forming 74% of a to- of the communities. tal population of roughly 18 million, and the Sri Lankan Tamils, numbering about 2 million or 12 % The Sri Lankan Tamils had been living in a separate of the total population.1 Members of both communi- kingdom in the Jaffna region for 407 years until the ties have claimed that their ethnic group was the first Portuguese ended their independent reign in 1621.3 to have arrived in Sri Lanka about 2500 years ago The Tamils have also historically constituted the ma- and has, by virtue of that temporal element, a supe- jority of the population in the Eastern region, which rior claim to the country or parts of the country over is now claimed as part of a separate state of Tamil the other ethnic groups. Both communities have lived Eelam. The background to the current conflict was in Sri Lanka for at least 2000 years and, if one is the British decision, following a proposal by the willing to use such an ideologically charged crite- Colebrook Cameron Commission in 1833, to bring rion as a historical, immemorial claim to a country, together the two separate, ancient, and disparate com- this claim has to be conceded to both communities munities of Sinhalese and Tamils into a single colo- regarding their traditional areas of settlement.2 nial unity, thereby establishing the plural society of Ceylon.4 The Hill Country Tamils, who make up about 5% of the total population, were brought to the then Ceylon by British colonialists from 1825 onwards to work on the coffee, and later tea plantations.5 They live mainly in the central highlands of the Central, Uva and Sabragamuwa provinces. The Sinhalese have been living predominantly in the south and the west of the country. Since independ- ence, colonisation schemes have resulted in demo- graphic changes by bringing in Sinhalese settlers to the East. Moreover, through social mobility, mem- bers of all communities have come to live in all parts Grief-striken orphaned child of the country although the main Southwest- North- east divide between Sinhalese and Tamils still re- mains intact. The International Crime of Genocide: The Case of the Tamil People in Sri Lanka 3 Another large minority group are the Muslims who mentioned areas, the Tamils perceived themselves are thought to have come to Sri Lanka as merchants as a distinct nation and equal partners within Sri and seafarers around the 13th Century. They consti- Lanka entitled to communal integrity and equal tute 7% of the current population, are Tamil speak- rights. ing and have their largest communities in the East around Trincomalee and Batticaloa.6 Since Tamil representatives, i.e. politicians of the Federal Party until 1972, the Tamil United Front There are other, small communities living in Sri (TUF) and the Tamil United Liberation Front Lanka, particularly the indigenous Veddas, whose (TULF) thereafter, and currently the LTTE (Libera- survival is threatened by their small number and the tion Tigers of Tamil Eelam), as well as Tamil- Non- encroachment of the majority, which makes it diffi- Governmental Organisations (NGOs) and individual cult for this community to retain their ancient lands authors, considered pro-Sinhalese policies as being and distinct identity in Sri Lanka.7 biased and anti-Tamil, they have brought forward charges of discrimination and of instigation and com- A further important factor in the ethnic conflict is plicity in acts of genocide against successive gov- religious affiliation which is mainly, but not exclu- ernments after Sri Lanka’s (called Ceylon until 1972) sively along ethnic lines. The Sinhalese are predomi- independence. Both intermittently ruling parties, the nantly Buddhist, whereas the Tamils are predomi- United National Party - in power during the years nantly Hindu. However, both communities have con- 1948-1956, 1965-1970 and 1977-1994 - and the Sri siderable number of Christians among them as a Lanka Freedom Party in power, either alone or in legacy of the colonial period.8 coalition, from 1956-1965, 1970-1977 and since 1994 until the time of writing, as the People’s Alli- The ethnic conflict between “the” Sinhalese and ance - have adopted a number of pro-Sinhalese poli- “the” Tamils is characterised by the struggle for cies that were antagonistic in nature and resulted in power in a post-colonial country that has been uni- a deep division of the country along ethnic lines. fied through colonisation rather than through mu- The resolution of the TULF at its convention in 1976 tual agreement of the concerned communities.