Thursday 9 July 2020
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Genocide and Self-Determination of Eelam Tamils under international law

Genocide and Self-Determination of Eelam Tamils under international law

Speech delivered by Lorenzo Fiorito at the Conference titled “Seventy Years of Oppression of Eelam Tamils by Sri Lanka” on February 5, 2018, at the Hotel Nazionale Rome in Italy. 

It’s a true pleasure for me to speak here in Rome, at a conference on Tamil issues; as this brings together the two biggest strands of my family identity. My great-grandparents on my father’s side left Molise, Italy, in the late 1800s: escaping poverty to start a new life in Canada.

My mother made her way to Canada from Sri Lanka in the late 1970s, to begin her career as a teacher. When the civil conflict started in 1983, she and my father sponsored my uncles, aunts, and cousins to come to Canada. The beginning of the conflict, which made my family members refugees, forms some of my earliest memories.

So this moment, speaking to an audience of Tamil diaspora representatives and Italian Parliamentarians, is quite meaningful for me.

My topic today is “Genocide and Self-Determination of Eelam Tamils under international law”.

To begin, I’ll outline the history of the Eelam claim to self-determination. Then I’ll show how the genocide, which is still ongoing, lends additional support to that claim.

Continued impunity for Sri Lanka’s crimes under international law shares a mutually causal relationship with obstruction of the exercise of Eelam Tamils’ right of self-determination. Article 1 of the International Covenant on Civil and Political Rights states: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

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The Human Rights Committee’s General Comment 12 on Article 1 of the ICCPR, which enshrines the principle of self determination into international law, notes:

“The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants [ICCPR and ICESCR] and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.”

So we see that self-determination is the fundamental prerequisite. According to the Human Rights Committee’s commentary, we cannot effectively deal with land grabs, torture, abductions, extrajudicial killings, or any other individual human rights violations, until we have addressed the point of self-determination. And indeed, all of these crimes have been committed in order to deny the right of self-determination. I’ll return to this point later.

Article 1 states that all “peoples” have the right of self-determination. Are Eelam Tamils a people?

Eelam Tamil citizenry is defined by the 1976 Vaddukoddai Resolution: which formed the 1977 electoral platform of the Tamil United Liberation Front (TULF), and remains recognized as the basis of Eelam Tamil identity today.  It affirms, in part:

“the State of Tamil Eelam shall consist of the people of the Northern and Eastern provinces and shall also ensure full and equal rights of citizenship of the State of Tamil Eelam to all Tamil-speaking people living in any part of Ceylon and to Tamils of Eelam origin living in any part of the world who may opt for citizenship of Tamil Eelam.”

The Vaddukoddai Resolution thus provides the basis for response to the conditions of status as a people. Eelam Tamils self-evidently constitute a group of persons. These persons hold a common historical tradition, with a recorded literary history of at least two millennia.  By virtue of self-identification as Tamils, they hold a common ethnic identity. Their habits of daily life, dress, cuisine, etc. demonstrate cultural homogeneity. As speakers of the Tamil language (especially its Eelam variety), they hold linguistic unity. The Vaddukoddai Resolution, and Eelam Tamil social practice, enshrine a secular society respecting Hindus, Muslims, and Christians. Eelam Tamils hold ideological affinity based on the principles of “nationhood, homeland, and self-determination.”  The Vaddukoddai Resolution indicates the demographic claim of the Eelam Tamil population to the contiguous Northern and Eastern Provinces of the island of Ceylon, indicating territorial connection. Eelam Tamils are demonstrably bound together, both within their national territory and worldwide, by commercial, charitable, and familial economic ties.

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Eelam Tamils therefore fulfill each condition constituting a “people” under the “Kirby definition” used by UNESCO. As such, the Eelam Tamil people holds the right of self-determination under ICCPR Article 1.

The 1977 TULF election manifesto stated:

“The Tamil nation must take the decision to establish its sovereignty in its homeland on the basis of its right to self-determination. The only way to announce this decision to the Sinhalese government and to the world is to vote for the Tamil United Liberation Front. The Tamil-speaking representatives who get elected through these votes, while being members of the National State Assembly of Ceylon, will also form themselves into the National Assembly of Tamil Eelam which will draft a constitution for the state of Tamil Eelam and establish the independence of Tamil Eelam by bringing that constitution into operation either by peaceful means or by direct action or struggle.”

The Northern and Eastern Provinces overwhelmingly elected TULF representatives in 1977. Eelam Tamils thereby expressed a democratic consensus to be recognized as a people and to hold a state of their own, by exercising the right of self-determination.

Yet, as in the past when Tamils had dared to express their political will independently, violent reprisals followed the 1977 election results. This closure of democratic space through which to articulate the right of self-determination gave rise to an armed movement, the LTTE.

Coinciding approximately with the end of the Indian intervention in the armed conflict (1989-1990), the LTTE established effective control over significant portions of the Northern and Eastern provinces, defined as Tamil Eelam under the Vaddukoddai Resolution. These territorial positions were acknowledged in Paragraphs 1.4 and 1.5, and were recognized in Paragraph 2.6 of the February 2002 Ceasefire Agreement (CFA). The ceasefire thus saw Sri Lankan state recognition of the de facto state of Tamil Eelam. This led to a statement from the “Sri Lankan President, Chandrika Kumaratunga, … that the Liberation Tigers of Tamil Eelam (LTTE) has established a ‘de facto separate State’ in the north of her country and in parts of the east.”

The Interim Self-Governing Authority established by the LTTE asserted powers of election and taxation, delimited separation of powers, and regulated internal and external trade.  Paragraph 22, on the Settlement of Disputes, mandated arbitrators to “ensure the parity of status of the LTTE and the GOSL.”

Therefore, Tamil Eelam fulfilled the four criteria of the Montevideo Convention for statehood: a permanent population, a defined territory, government, and the capacity to enter into relations with other states.

I turn now to a prima facie investigation of the crime of genocide. Ceylon, later to become Sri Lanka, was one of the first signatories to the Genocide Convention. Article II of the Convention reads:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such : (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Let’s look at each in turn. Killing members of the group. It might be clear that members of the Tamil nation were killed for nothing more than being Tamil, particularly during the riots of July 1983, and in such conflict-related attacks. The fact that voter’s lists, with names classified by ethnicity, appeared in the hands of rioters who then killed Tamils without police or army intervention, should indicate possible collusion of the state.

But President Jayawardene’s interview with the London Daily Telegraph on July 11, 1983, strongly indicates genocidal intent.

“I am not worried about the opinion of the Jaffna (i.e. Tamil) people now… Now we cannot think of them. Not about their lives or of their opinion about us… The more you put pressure in the north, the happier the Sinhala people will be here… really, if I starve the Tamils out, the Sinhala people will be happy…”

A Channel Four BBC documentary called No-Fire Zone shows that, in the final days of the conflict, the Army told non-combatants to gather in specific areas to keep themselves safe. The Sri Lankan army then shelled those exact areas, resulting in at least 40,000 dead, within the space of weeks: according to UN estimates. Killing noncombatant members of the Tamil people group, whether during army operations or by vigilantes, was commonplace during the conflict. 100,000, primarily Tamils, are independently confirmed dead.

Next on the Genocide Convention’s list: “Causing serious mental or bodily harm to members of the group.” It an effect of the military power of the LTTE that Sri Lankan soldiers did not often use sexual violence against Tamil women during the conflict. The LTTE itself strictly banned sexual violence within the territory it controlled, as well as unquestionably forbidding its troops to use it as a weapon of war. After the conflict, however, with the LTTE decimated, an epidemic of sexual violence perpetrated by Sinhalese-dominated Sri Lankan security forces has plagued the Tamil population.

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On November 8, 2017, 50 Tamil refugees in Europe reported that sexual violence had been used against them, while in custody, to extract confessions. All these survivors are Tamil men. Sexual violence causes both mental and bodily harm.

Next on the list of the Genocide Convention: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” To this day, thousands of Tamil families remain displaced from their land. At the end of the conflict, the Sri Lankan government placed several hundred thousand Tamils in internment camps, citing security grounds.

300,000 were held in the infamous Manik Farm camp alone. Not many have had their land returned to them. Instead, Sri Lankan army settlements, populated by Sinhalese soldiers, have sprung up on their properties. Some of these families have been demonstrating for nearly a year now, for the return of their land. Some has been returned, most land has not.

Without access to land, the most impoverished Tamil families cannot fish, nor can they farm, nor can they properly educate their children. Often, they cannot even secure adequate housing. There is no way for them to make a living. Land-grabbing is a deliberate policy, that arguably intentionally dilutes the traditionally Tamil character of the Northeast region of the island, and destroys the ability of Tamil families to provide for themselves, thus contributing to the physical destruction of the group.

Fourth on the list of conditions that constitute genocide: “Imposing measures to prevent births in the group.” In 2013, the Sri Lankan journal Groundviews reported that coercive methods were being used to convince Tamil women to accept long-lasting birth-control implants. These included threats to deny further medical services, and manipulation of access to medical information regarding the implants.

Fifth, and finally, the Genocide Convention lists “forcibly transferring children of the group to another group”. Here, it must be said, direct transfer of children has not taken place, to my knowledge. However, in January 2013, it was recorded that Sinhalese soldiers were reporting to schools, in full uniform, and claiming authority to teach Tamil children. In Tamil areas, the Tamil language is spoken first, and English second. These soldier-teachers taught in Sinhalese. The unstated intent seems to have been to destroy the cultural identity of these schoolchildren.

So, in each of the five possible manifestations of genocide that the Convention lists, there is at least one case, but often innumerable cases, where investigation into a possibly genocidal act is both justified and desirable.

While several European and North American countries have applauded the Sirisena government, elected in 2015, for its change in tone from that of the previous administration, it is important to point out that many of these potential violations have occurred under its watch as well. Yet, Sirisena insists on upholding the culture of impunity on the island. The day after the 50 men reported the use of sexual violence in Sri Lankan custody, the president spoke to army officers about his intent to shield them from war tribunals.

General Assembly Resolution 2625 (XXV) binds UN member states to:

“refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence.

In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.”

The dismantling of the autonomous region of Tamil Eelam, a de facto state recognized by Sri Lanka and parts of the international community, was accomplished through grave violations of international law and human-rights abuses. Such violations and abuses continue against the Eelam Tamil people at present. As such, the Eelam Tamil people is entitled to support, in accordance with the UN Charter, for the free exercise of its right to self-determination.

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Paragraphs 18 and 19 of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” prescribe reparations adequate to the crimes committed:

“In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation” including restitution.

“Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.”

In this case, therefore, restitution includes restoring members of the Eelam Tamil nation to a situation of the enjoyment of the human right of self-determination, and at minimum, a return to the borders recognized under the ceasefire agreement.

The long-standing, and continual, attacks on the Tamil people have given them an awareness of themselves as a nation. Post-armed conflict democratic initiatives have utilized a non-binding public consultation, and the result was over 90% in favour of independence, on the basis of a 64% turnout of diaspora population.

It is time, today, for a binding, UN-supervised referendum on self-determination; and for a special criminal tribunal that investigates war crimes, crimes against humanity, and genocide, against the Eelam Tamil people.

It is my hope that those attending this conference will lend their aid to making this referendum, and this tribunal, a reality, in the months to come.

Lorenzo Fiorito holds a B.A. in Political Science, and is an LL.M candidate. He is based in Geneva, Switzerland.

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