the international crime of genocide - ilankai tamil...

The International Crime of Genocide:The Case of the Tamil People in Sri Lanka

Tamil Information CentreDecember, 1997

ABOUT THE AUTHOR

Lutz Oette, a German citizen recently completed his LL.Mat the University College of London. He was the winner ofthe 1996 Cheng Cheng Nan Prize in International Law. Hisresearch 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 reporton Torture and Inhuman and Degrading Punishment in SaudiArabia. 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 paperson Iraqi Kurds addressing the current situation in terms oflegal, political and socio-economic issues and assisted inthe cases concerning Kurds in Turkey to be brought beforethe European Commission on Human Rights and EuropeanCourt of Human Rights.


Tamil Information Centre, 1997ISBN 1 85201 011 8Published December 1997Layout K KrishnarajahCover Photo Stephen Champion

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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 tothe author and the volunteers without whose support andcommitment this report would not have been possible.

The greatest sage poet of classical Tamil literature Thiruvalluvar'sstatue in Jaffna desecrated by the Security forces in 1983 in a fren-zied ethnocidal attack.


ContentsIntroduction 1

The Historical Background 3

The Definition of Genocide 5The Historical Background of The Genocide Convention and Its Current StatusThe Definition of Genocide in the Genocide ConventionCritique of the Definition of Genocide in the Genocide ConventionNon-Legal Definitions of Genocide

The Genocidal Society: Causes And Functions of GenocideThe Process of GenocideThe Understanding of Genocide as Adopted in this Study

The Genocidal Process 15

The Right of the Tamil people To Self-DeterminatiionPolitical Self-DeterminationColonisationEconomic, Social and Cultural Development

LanguageReligionCultureEducationEconomic DevelopmentHealthCommunicationViolation of Fundamental RightsThe Process of Dehumanisation

Conclusion: Genocidal Process

Acts of Genocide 36

The EvidenceThe Charges

The ActsIntentGovernment Responsibility

Enforcement of The Genocide Convention 55

The Existing Enforcement MechanismsThe UN Record of Preventing and Punishing GenocideUN Record on Sri LankaSri Lanka’s Record of Enforcing the Genocide ConventionHumanitarian InterventionThe Indian Intervention in Sri LankaPossible Alternative Enforcement Mechanisms

Preventing Future Genocide: Recommended Strategies 70

UN High Commissioner for Human RightsUN Commission on Human Rights1503 ProcedureThe International Community

Recommendations 76

Sri Lanka

Introduction

enocide is the ultimate crime under interna-tional law, a crime against humanity. Bring-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 beenbrought forward by Tamils against members of theSinhalese majority, in particular members of succes-sive governments. This study will not set out to de-termine individual guilt since this would require athorough judicial investigation. Rather, based on thelegal definition of genocide and on sociological ap-proaches on the genocidal process and the so-calledgenocidal society, it will focus on two interrelatedissues.

Firstly, what characterises a society in which geno-cide is likely to occur and can Sri Lanka be describedas being such a society? Secondly, have there beenacts of genocide in Sri Lanka and, if so, who hasbeen responsible for these as evidenced on a primafacie basis? This examination, while not ignoringthe issue of punishment, will be focusing on the pre-vention of genocide. In this regard, enforcementmechanisms provided under the Genocide Conven-tion and their effectiveness will be scrutinised. Fi-nally, based on the findings of this study, a strategywill be developed with a view to prevent acts of geno-cide taking place in Sri Lanka in the future.

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Skull and bones representing a Tamil victim

The International Crime of Genocide: The Case of the Tamil People in Sri Lanka 1

�Two Different nations, from a very ancient period, have di-vided between them the possession of the Island: theSinhalese inhabiting the interior in its Southern and Westernparts from the river Wallouwe to Chilaw, and the Malabars(Tamils) who possess the Northern and Eastern Districts. Thesetwo nations differ entirely in their religion, language andmanners.�

Sir Hugh Cleghorn, British Colonial Secretary, June 1879.

The International Crime of Genocide: The Case of the Tamil People in Sri Lanka2

The space-related identity of Sri Lankan TamilsSource:Tennent J. Emerson, Ceylon, Colume II, Longmans Press 1859

The historical background


Grief-striken orphaned child

S ri Lanka is composed of several ethnic andreligious communities. The two biggest arethe Sinhalese majority, forming 74% of a to-

tal population of roughly 18 million, and the SriLankan Tamils, numbering about 2 million or 12 %of the total population.1 Members of both communi-ties have claimed that their ethnic group was the firstto have arrived in Sri Lanka about 2500 years agoand has, by virtue of that temporal element, a supe-rior claim to the country or parts of the country overthe other ethnic groups. Both communities have livedin Sri Lanka for at least 2000 years and, if one iswilling to use such an ideologically charged crite-rion as a historical, immemorial claim to a country,this claim has to be conceded to both communitiesregarding their traditional areas of settlement.2

Of more importance to the current conflict is the his-torical location and current geographic distributionof the communities.

The Sri Lankan Tamils had been living in a separatekingdom in the Jaffna region for 407 years until thePortuguese ended their independent reign in 1621.3

The Tamils have also historically constituted the ma-jority of the population in the Eastern region, whichis now claimed as part of a separate state of TamilEelam. The background to the current conflict wasthe British decision, following a proposal by theColebrook Cameron Commission in 1833, to bringtogether the two separate, ancient, and disparate com-munities of Sinhalese and Tamils into a single colo-nial unity, thereby establishing the plural society ofCeylon.4

The Hill Country Tamils, who make up about 5% ofthe total population, were brought to the then Ceylonby British colonialists from 1825 onwards to workon the coffee, and later tea plantations.5 They livemainly in the central highlands of the Central, Uvaand Sabragamuwa provinces.

The Sinhalese have been living predominantly in thesouth and the west of the country. Since independ-ence, colonisation schemes have resulted in demo-graphic changes by bringing in Sinhalese settlers tothe East. Moreover, through social mobility, mem-bers of all communities have come to live in all partsof the country although the main Southwest- North-east divide between Sinhalese and Tamils still re-mains intact.

Another large minority group are the Muslims whoare thought to have come to Sri Lanka as merchantsand seafarers around the 13th Century. They consti-tute 7% of the current population, are Tamil speak-ing and have their largest communities in the Eastaround Trincomalee and Batticaloa.6

There are other, small communities living in SriLanka, particularly the indigenous Veddas, whosesurvival is threatened by their small number and theencroachment of the majority, which makes it diffi-cult for this community to retain their ancient landsand distinct identity in Sri Lanka.7

A further important factor in the ethnic conflict isreligious affiliation which is mainly, but not exclu-sively along ethnic lines. The Sinhalese are predomi-nantly Buddhist, whereas the Tamils are predomi-nantly Hindu. However, both communities have con-siderable number of Christians among them as alegacy of the colonial period.8

The ethnic conflict between “the” Sinhalese and“the” Tamils is characterised by the struggle forpower in a post-colonial country that has been uni-fied through colonisation rather than through mu-tual agreement of the concerned communities. Ma-jor themes of the conflict are political unity versusfederalism, territorial unity versus communal home-lands, and language, religion and culture in the con-text of communal identity and socio-economic ad-vantages for one group to the detriment of the other.Whereas Sinhalese politicians and others frequentlymaintained that Sri Lanka is one state in which theSinhalese constitute the majority and consequentlyare entitled to enjoy a dominant position in all the

mentioned areas, the Tamils perceived themselvesas a distinct nation and equal partners within SriLanka entitled to communal integrity and equalrights.

Since Tamil representatives, i.e. politicians of theFederal Party until 1972, the Tamil United Front(TUF) and the Tamil United Liberation Front(TULF) thereafter, and currently the LTTE (Libera-tion Tigers of Tamil Eelam), as well as Tamil- Non-Governmental Organisations (NGOs) and individualauthors, considered pro-Sinhalese policies as beingbiased and anti-Tamil, they have brought forwardcharges of discrimination and of instigation and com-plicity in acts of genocide against successive gov-ernments after Sri Lanka’s (called Ceylon until 1972)independence. Both intermittently ruling parties, theUnited National Party - in power during the years1948-1956, 1965-1970 and 1977-1994 - and the SriLanka Freedom Party in power, either alone or incoalition, from 1956-1965, 1970-1977 and since1994 until the time of writing, as the People’s Alli-ance - have adopted a number of pro-Sinhalese poli-cies that were antagonistic in nature and resulted ina deep division of the country along ethnic lines.The resolution of the TULF at its convention in 1976summarised the Tamil perception of Sinhalese poli-cies by stating that the Tamil nation had been de-prived of its territory, language, citizenship, eco-nomic life, opportunities of employment and edu-cation.9 Since then, large-scale anti-Tamil riots, re-pressive laws and warfare in the name of fightingTamil terrorism, resulting in thousands of deaths,devastation and a Tamil mass exodus, have addedanother dimension to Tamil charges: the destructionof a people, called genocide.10

1Estimates of the Department of Census and Statistics, Ministry of Finance, Planning, Ethnic Affairs and National Integration: Statistical Abstract of the Democratic Social Republic of Sri Lanka 1995, pp. 34,412 see S.D.Muni: Pangs of Proximity,pp.40,41 and H.J.Whall: Right to Self-Determination, pp.189-191. See also A R Arudpragasam: The Traditional Homeland of the Tamils,1996.3 see S.Ponnambalam:Tamil Liberation Struggle, p.294 see L.Kuper: Prevention of Genocide, p.2205 see S.J.Tambiah: Ethnic Fratricide, p.46 see ibid.7 see P.Hyndman: A Study in Microcosm, pp.278-2808 see E.Nissan: A Bitter Harvest, p.89 see H.J. Whall: Right to Self-Determination, pp.367-37010 see M.S. Venkatachalam: Genocide in Sri Lanka, Gian Publishing House, Delhi, 1987 and also: S.Bose: States, Nations, Sovereignty: Sri Lanka, India and the Tamil Eelam Movement, Sage Publications, New Delhi, Thousand Oaks, London, 1994, pp.80,81


The definition of genocide

11 see L.Kuper: International Action against Genocide, p.312 see R.Lemkin: Axis Rule in Occupied Europe13 UN Special Rapporteur 1985, p.814 see ibid.,p.1115 see T.Meron: Human Rights and Humanitarian Norms as Customary Law, Clarendon Press, Oxford, 1989, p.1116 see A.Cassese: Human Rights, p.79

The historical backgroundof the Genocide Convention and its current sta-tus

he word “genocide” was coined by the ju-rist Raphael Lemkin who was the first manto campaign vigorously for a genocide con-

vention.11 The term, a new word for an old crime, isa hybrid of the Greek word genos (race, nation ortribe) and the Latin cide (killing). 12

The term genocide appeared for the first time in alegal setting in the indictment of the major Germanwar criminals at the International Tribunal at Nu-remberg in 1945. They were charged with crimesagainst humanity, which consisted of, inter alia, “de-liberate and systematic genocide, viz., the extermi-nation of racial and national groups.”13

The importance accorded to the punishment of geno-cide was underscored in the first session of theUnited Nations in 1946. The General Assemblyunanimously passed two resolutions: Resolution 95(1) which affirmed the principles of internationallaw recognized by the Charter of the Nuremberg Tri-

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bunal and the judgement of the Tribunal, and Reso-lution 96 (1) which affirmed that genocide is a crimeunder international law which the civilised worldcondemns, and for the commission of which princi-pals and accomplices are punishable. It also re-quested the UN Economic and Social Council todraw up a draft convention on the crime of geno-cide.14

The ensuing debates on the draft convention finallyresulted in the Convention on the Prevention andPunishment of the Crime of Genocide, 1948, whichcame into force on 12 January 1961. In Article 1,the contracting parties confirm that genocide,whether committed in time of peace or in time ofwar, is a crime under international law which theyundertake to prevent and punish.

The Genocide Convention, which had 120 contract-ing parties as of 31/12/1995, is the sole treaty ongenocide, even though aspects of genocide mightbe dealt with in other instruments, for example, theright to life in the International Covenant on Civiland Political Rights. The Genocide Convention isregarded to be declaratory of customary internationallaw.15 This means that states are bound by its provi-sions as a matter of general international law, eventhough they might not have ratified it. The bindingforce of the Genocide Convention is absolute sinceits provisions constitute jus cogens, or a peremp-tory norm, from which no derogation is permitted.16

Dead bodies thrown into rivers


Exodus of Refugees

"The war has created what is perhaps Sri Lan-ka's most humanitarian problem, its refugees.In successive waves over the past decade, morethan 200,000 Sri Lankan Tamil and Muslimrefugees have fled their homes in the NorthernProvince and sought safety in India. Another300,000 have fled to western countries andover 600,000 are currently displaced within Srilanka itself, out of a total population of about17 million. In 1990, the numbers were almosttwice that.

"A legacy of government policies and initiativeswhich tolerated and at times encouraged grossviolations of human rights, and the continuinglack of accountability for past abuses lie behindthis crisis. For refugees and the displaced, secu-rity has been further diminished by resettlementinto what are effectively war zones."

Asia Watch, Vol.5 Issue ll, August 11,1993

6 The International Crime of Genocide: The Case of the Tamil People in SriLanka

17 see UN Special Rapporteur 1985, pp.16,2918 ibid., p.1919 UN Special Rapporteur 1978, pp.25,9820 ibid.pp.25,9621 see UN Special Rapporteur 1985, pp.19,3922 S. Glaser: Droit international penal conventionell ( Brussels, Etablissements Emile Bruylant, 1970),pp.111-112 cited in UN Special Rapporteur 1978, p. 57

The definition of genocidein the Genocide Convention

2. The intent to destroy must be a particular intent(dolus specialis). Crimes against a number of indi-viduals must be directed at their collectivity or atthem in their collective character or capacity. Themotive of the crime is irrelevant.18 The proposal toreplace the strict subjective element by the words“aimed at the physical destruction of groups” wasnot accepted.19 In the absence of particular intent todestroy the group in question, in whole or in part,whatever the degree of atrocity of an act and how-ever similar it might be to the acts described in theConvention, that act would still not amount to geno-cide.20 The UN Special Rapporteur on Genocidesuggested that a court should be able to infer thenecessary intent from sufficient evidence, and thatin certain cases this would include actions or omis-sions of such a degree of criminal negligence orrecklessness that the defendant must reasonably beassumed to have been aware of the consequencesof his conduct.21

3. The definition of each of the stipulated groupsas well as their relation to each other was subject todebate in the drafting stages of the Genocide Con-vention. If one accords a distinct meaning to eachconcept of a group as used in the Genocide Con-vention, the following definitions appear to be help-ful:

- A nation is a community marked by distinct his-torical and cultural links or features.

- Race means a category of persons who are distin-guished by common and constant, and therefore,hereditary, features.

- Ethnic designates a community of persons linkedby the same customs, the same language and thesame race.22

rticle 2 of the Genocide Convention containsthe legal definition of genocide:

In the present Convention, genocide means any ofthe following acts committed with intent to destroy,in whole or in part, a national, ethnical, racial orreligious group, as such:

(a) Killing members of the group;(b) Causing serious bodily or mental harmto members of the group;(c) Deliberately inflicting on the group con-ditions of life calculated to bring about itsphysical destruction in whole or in part;(d) Imposing measures intended to preventbirths within the group;(e) Forcibly transferring children of thegroup to another group.

There are three main parts in the definition of geno-cide whose understanding is crucial for an interpre-tation of what acts amount to genocide under theConvention. Firstly, the acts constituting genocide.Secondly, the intent to destroy, in whole or in part,a group. Thirdly, the definition of the group as be-ing national, ethnical, racial or religious.

1. Genocide is confined to acts aimed at physicalharm to members of a group or annihilation of agroup, thus excluding acts such as cultural geno-cide. There has been some debate on the extent ofthe destruction of a group, i.e. whether the killingof one person could constitute genocide.17 This ques-tion appears to be rather theoretical since chargesof genocide are usually brought in cases of masskillings.

A


Deaths in custody

Amnesty International on Deaths in Custody inSri Lanka: Recent reports of "Dissappearances"

and torture,May 1987

"...described cases of per-sons killed after being takenaway by the security forces.They were apparently shot

after arrest, and their bodieswere either left on the spot,

or, as happened in manycases, were removed by the

security forces and burnt.Only in a few cases in which

the bodies of the victimswere found are inquests

known to have been held."


Critique of the definition of genocidein the Genocide Convention

he definition of genocide in the GenocideConvention has been repeatedly attacked forits narrow focus which is largely blamed for

the failure of the Genocide Convention as such.Three points of controversy have crystallised overthe years, which will be considered according to theimportance that has been attached to them in thelegal debates concerning the Genocide Convention.

1. The exclusion of political groups was the resultof the objection to its inclusion by the Soviet Un-ion.23 This subject caused an intensive debate in theSixth Committee commissioned with the draftingof the Genocide Convention, a debate which is mir-rored in the frequent criticism levelled in the litera-ture on genocide against the exclusion of politicalgroups.24 The main arguments against the inclusionof political groups were the lack of stability of po-litical groups which depended on the will of theirmembers, the possible involvement of the UnitedNations in internal political struggles, the need for agovernment to fight subversive elements, the fol-low-up question of protection for economic and pro-fessional groups, and the possibility to better pro-

tect political groups under national legislation andthe Universal Declaration of Human Rights.25 Thecounter-arguments stressed that political groupswere characterised by common beliefs just as muchas religious groups. Moreover, there was no com-pelling reason to exclude mass killings for ideologi-cal reasons, as they were a major category of mod-ern genocide.26 Furthermore, the protection of po-litical groups under international human rights in-struments, as important as it may be, is tailored toindividual rights and exceptionally to group or mi-nority rights, but not to genocidal acts which threatento wipe out an entire group and are committed on adifferent magnitude, at least in terms of their ulti-mate aim.

The major argument for the inclusion of politicalgroups is that its omission offers a wide and danger-ous loophole which permits any designated groupto be exterminated, ostensibly under the excuse thatthis is for political reasons.27 This argument is themost far-reaching as it highlights the risk of govern-ments disclaiming responsibility for acts of geno-cide by means of defining groups as political. Par-

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Destruction of community centres and social institutions


23 L.Kuper: International Action against Genocide, p.324 see G.J. Andreopoulus: The Calculus of Genocide in G.J.Andreopolous: Genocide, p.2 and I.W.Charny: Towards a Generic Definition of Genocide in: G.J.Andreopolous: Genocide, p.7025 see UN Special Rapporteur 1985, pp.18,3526 see ibid.:p.18,3627 see P.Drost: The Crime of State, II Genocide quoted ibid., pp.19,3628 see G.J. Andreopoulos: Genocide, p.729 see L.Kuper:Genocide, p.3330 see UN Special Rapporteur 1978, pp.26,10031 see ibid., p.2632 E/794, pp.21,27 and 28. See E/CN.4/Sub.2/416, para. 441-46133 see UN Special Rapporteur 1985, p.1734 see R.Lemkin: Axis Rule in Occupied Europe, pp.X-XI35 see UN Special Rapporteur 1978, pp.124,125

ticularly in a domestic struggle be-tween national and ethnic groupsin a pluralistic society, the involvedgroups will necessarily become po-liticised to assert their rights, whichrenders the distinction betweennational or ethnic groups and po-litical groups impossible.

2. The element of intent has beenthe subject of widespread criticism.The most apparent one is that gov-ernments are reluctant to admit thattheir repressive policies were aimed at destroyingthe targeted group.28 This, in conjunction with thelikely non-existence of government documentswhich demonstrate the intent, renders the existenceof the subjective element difficult to establish.29 Thesubjective formulation of the intent element has beenregarded as one of the key factors in the failure ofthe Genocide Convention and was proposed to bereplaced by an objective criterion.30 However, theelement of intent has also been viewed as the distin-guishing criterion between genocide and ordinarymurder as well as war crimes,31 and has come to be,at least for the time being, an essential componentof the crime of genocide.

3. The third subject of contention was the one ofcultural genocide. The Ad Hoc Committee prepar-ing the Convention had proposed including a provi-sion concerning cultural genocide in the GenocideConvention: “Any deliberate act committed with in-tent to destroy the language, religion or culture of anational, racial or religious group on grounds ofnational or racial origin or religious belief as such:1. Prohibiting the use of the language of the groupin daily intercourse or in schools, or the printingand circulation of publications in the language ofthe group; 2. Destroying or preventing the use oflibraries, museums, schools, historical monuments,

Mass killings

places of worship.”32 This proposal was not adoptedin the final text of the Genocide Convention as itwas regarded to be too vague and capable of invit-ing the risk of political interference in the domesticaffairs of states. Moreover, the protection of minori-ties’ culture was viewed as being primarily a matterfor other international bodies.33 Cultural genocidewas excluded despite Lemkin’s definition of geno-cide which included synchronised attacks on politi-cal and social institutions, culture (by prohibitingor destroying cultural institutions and cultural ac-tivities), language, national feelings, religion, andthe economic existence of the group.34 There hasbeen some support for the proposition that a groupcould be suppressed by extinguishing their specifictraits, as well as by physical destruction.35 However,the distinction between genocide as a form of con-certed mass killings and cultural genocide as prima-rily a denial of minorities’ rights appears by now tobe well established. The arguments brought forwardfor the inclusion of cultural genocide in the Con-vention are nevertheless not futile as they mightcontribute to a better understanding of the genocidalprocess whose understanding will be identified asbeing pivotal in the efforts to prevent genocide asdefined in the Genocide Convention.

10 The International Crime of Genocide: The Case of the Tamil People in Sri Lanka

Non-legal definitions of genocide

he legalistic and narrow focusof the definition of genocide asconstituting an international

crime under the Genocide Conventionand its exclusion of the structural, sys-tematic and psychological aspects ofgenocide has prompted, in particular, so-ciologists to examine the phenomenonof genocide from different perspectives.Their work has produced a wide arrayof explanations concerning the causes,preconditions and execution of varioustypes of genocide, especially in the 20thCentury. Even though none of them hasany positive binding force under eithernational or international law, they arean invaluable complement to the legaldefinition for the understanding of the genocidalprocess. Thus, the following excursion serves notonly as a background in understanding some of thedeficiencies of the legal definition but mainly as atheoretical inquiry into the causes and preconditionsof genocide, the understanding of which will be ofimportance in considering the case of the Tamils inSri Lanka and in devising possible measures andactions to prevent genocide.

enocide is a multi-faceted phenomenon that isusually the result of a massive confrontation,either rooted in history or ideology. It can take

place at the international or national level. Concern-ing Sri Lanka, Leo Kuper's typology of a domesticgenocide which arises from internal divisions withina society will be used.36 He identifies several typesof domestic genocide, among them: Genocide fol-lowing upon decolonization of a two-tier structureof domination and genocide in the process of strug-gles for power by ethnic or racial or religious groups,or struggles for greater autonomy or for secession,for example the genocide in Bangladesh in 1971.37

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Military Rule

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n The genocidal society: causes and functions of genocide

Based on a comparison of types of domestic geno-cide, Kuper identifies the following features theyhave in common: (1) inequality of participation, (2)growing polarisation in the form of communal andterritorial separation, (3) a history of conflict ex-pressed in the crystallisation of historic memoriesand in hostile and dehumanising perceptions of theother group, (4) the effect of which is total identi-ties based on race, nationality, ethnicity or religion38

and, i) In many cases there are differences of reli-gion between the aggressors and victims, ii) Thecatalyst is often a situation of change and of threat,iii) The crime is committed mostly by governments,though not exclusively by them, iv) It is a phenom-enon of plural societies, i.e. societies characterisedby deep and pervasive cleavages between ethnic,racial and/or religious groups, v) Many of the highlydestructive conflicts involve struggles for greaterautonomy or for secession, and arise from the de-nial of the right to self-determination.39

Applying Kuper’s typology to the situation in SriLanka, it becomes apparent that all the structuralelements of a situation characteristic for domesticgenocide are present. Kuper’s analysis shows thatgenocide is not accidental under these circumstances.On the contrary, it is “a fundamental mechanism for


the unification of the national state.” It represents asystematic effort over time to liquidate a nationalpopulation, usually a minority, and functions as afundamental political policy to assure conformityand participation by the citizenry.40

Genocide has in this context also been defined as“ the successful attempt by a dominant group, vestedwith formal authority and/or with preponderant ac-cess to the overall resources of power, to reduce bycoercion or lethal violence the number of a minor-ity group whose ultimate extermination is held de-sirable and useful and whose respective vulnerabil-ity is a major factor contributing to the decision ofgenocide.”41

These definitions uncover the underlying structuralreasons for the strategic use of genocide. Genocideappears as a strategy which is used by the elites, i.e.the government and influential classes, in order toachieve political and economic stability and/or domi-nance by means of a populist policy employing dis-crimination and violence in the process of nation-building which is necessarily at the expense of theminority group.

The preceding concepts and explanations attemptto show under what circumstances domestic geno-cide is likely to take place. They provide structuraland functional explanations for the causes of geno-cide by identifying preconditions of a genocidal so-ciety. However, whether a society becomes fullygenocidal is to a very large degree dependent on thecountry in question, in particular the willingness ofthe elite to employ genocide as a means to achievetheir ends as well as objections and resistance withinthat country to the use of genocide against a par-ticular group.

n The process of genocide

he genocidal process in a domestic setting im-plies the more or less visible suppression and exter-mination of groups living within the society. It hasbeen stressed by psychologists that people are gen-erally reluctant to engage in gross discrimination andmass killings.42 For this reason, dehumanisation hasbeen identified as essential to provide some justifi-cation for dealing with other human beings as onewould treat dangerous animals: exterminate them.The term denotes the denial of human status andindividuality and involves processes by which theusual moral institutions against violence becomeweakened.43 These processes are inextricably bound

Donald Acheson: Preventing genocide- Episodesmust be exposed, documented, and punished, Brit-ish Medical Journal, 7 December 1997.

�Genocide - the deliberate wipingout of one race or ethnic group byanother - is the extreme form ofabuse of human rights. Until re-cently the term has tended to beassociated with a single historicevent, the so called ̀ holocaust�-the attempted extermination byNazi Germany of the Jewsthroughout Europe. But moreimmediate events in Bosnia and inRwanda and Burundi suggest thatthe urge within a group to ̀ cleanseitself� of others (whether differingin colour, creed, or ethnicity) ismuch more general. Indeed, it maybe that a latent impulse towardsgenocide is as old as the humanrace itself.�

up with the monopoly of state power which isclaimed as a matter of sovereignty. Thus, the engi-neering of death is held to be made possible by a setof value-laden assumptions that the state, whetherto purify its racial base or amplify its economic base,has the right to decide how many sacrifices are re-quired to achieve its goal.44

The process of genocide is usually geared towardsits final result: “the destruction of a nation or anethnic group.”45 This is carried out in two phases:the destruction of the national pattern of the op-pressed group, and the imposition of the nationalpattern of the oppressor.46 The destruction of a na-tion or an ethnic group is primarily effected by meansof mass killings. However, the original definition ofthe acts of genocide given by Raphael Lemkin is

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36 see L.Kuper: International Action against Genocide, p.537 see ibid., see also H.Fein’s model of a retributive genocide which is a response to challenges to the structure of domination when two peoples are locked into an ethnically stratified order in a plural society in: Scenarios of Genocide: Models of Genocide and Critical Responses in: I.W.Charny: Toward the Understanding and Prevention of Genocide, p.1138 L. Kuper: Prevention of Genocide, p.20039 L.Kuper: International Action against Genocide, p.740 I.L.Horowitz: Genocide; State Power and Mass Murder, pp.79 and 18, see also V.N.Dadrian: Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Ramifications in: Yale Journal of International Law, Vol.14, Nr.2, Summer 1989, pp.325,32641 V.N.Dadrian: A Typology of Genocide in: International Review of Modern Sociology 5, Fall 1975, pp.201-21242 see I.W.Charny: How can we commit the unthinkable?, p.10943 see ibid., pp.108,109 and 190,206,207 and F.Chalk & K.Jonassohn: History and Sociology of Genocide, p.2844 see I.L.Horowitz: Taking Lives, p.645 see Lemkin’s definition, supra Fn.3446 see P.Thornberry: International Law and the Right of Minorities, Clarendon Press, Oxford, 1991, p.6247 see supra Fn.34

much broader than the one in the Genocide Con-vention:

“Genocide is effected through a synchronised attackon different aspects of life of the captive peoples: inthe political field (through destroying institutionsof self-government, imposing the oppressors’ pat-tern of administration, and through colonisation),in the social field (through disrupting the social co-hesion of the nation involved); in the cultural field(by prohibiting or destroying cultural institutionsand cultural activities): in the economic field (byshifting the wealth to the oppressor); in the biologi-cal field (by a policy of depopulation); in the fieldof physical existence (by mass killings); in the reli-gious field (by interfering with the activities of thechurch).”47

Although Lemkin was referring to the genocide com-mitted against the Jews by the Germans, it is appar-ent that his enumeration of aspects is applicable toany case of genocide. Indeed, it is a broad under-standing of the term that acknowledges the concertednature of genocide as a process instead of consign-ing interrelated parts of the life of a people to a va-riety of human rights compartments and thereby tak-ing them out of context. It is also a definition thathas been the forerunner for a number of other defi-nitions or descriptions of genocide that regard it asan integrated process that has to be viewed againstits ultimate impact: the destruction of a people.

n The understanding of genocide as adopted in this study

enocide can be viewed in purely legal terms as aninternational crime as stipulated in the GenocideConvention or in the broadest terms as a result of

G

specific structures and systematic policies whichcharacterise a genocidal society. This study is pri-marily concerned with the legal interpretation ofgenocide since only the definition of genocide inthe Convention is legally binding on states and rep-resents the current understanding of the constitu-tive features of genocide as a crime. It is thereforealso the main basis for any possible action by theinternational community to prevent and/or punishgenocide. The definition of genocide in the Geno-cide Convention is however silent on the causes andprocesses leading to genocide. Thus, it appears tobe ill-designed to prevent genocide if action can onlybe taken when any of the described acts have al-ready been committed since they are often the lastand ultimate step in the process of the destructionof a nation or an ethnic group. The prevention ofgenocide requires a broader understanding of itssetting, functions, and mechanisms of implementa-tion.

Thus, the treatment of Tamils in Sri Lanka will beexamined against the background of the genocidalprocess. Keeping Lemkin’s account and Kuper’s ty-pology of genocide in mind, the process of destroy-ing the Tamils as a nation and ethnic group will beanalysed on the basis of the denial of the right toself-determination and the denial of fundamental hu-man rights of the Tamils, which will serve as indi-cators as to how far the destruction of the Tamils asa people has proceeded. The denial of these rightswill be viewed against its impact on the life of theTamil community. This will provide for an assess-ment of the current situation in the light of historywhich is hoped to be helpful in devising preventa-tive mechanisms. However, acts that can possiblybe called genocidal will be examined with a view toestablishing the commission of the crime and todetermine the identity of the culprits in order to dojustice to the other main focus of the Genocide Con-vention: punishment.


Shops burnt to ashesin front of the Police stationat Chunnakam in Jaffna Districtin 1983.

Destruction of shops and business establishments


The Genocidal Process

The right of the Tamil peopleto self-determination

48 see H.J.Whall: Right to Self-Determination,p.7349 see ibid.p.7250 see ibid.pp.15351 The Tamil United Liberation Front National Convention, Pannakam ( Vaddukoddai Constituency), 14 May 1976, see supra Fn. 952 see H.Hannum: Rethinking Self-Determination in: Virgina Journal of International Law, Vol.34, 1994, pp.41-57 and N Jayawickrama: Right of Self-Determination, pp 3-5

he right to self-determination is stipulatedin Article 1,1 of both the International Cov-enant on Social, Economic and Cultural

Rights and the International Covenant on Civil andPolitical Rights: “All peoples have the right to self-determination. By virtue of that right they freelydetermine their political status and freely pursuetheir economic, social and cultural development.”

There is no authoritative legal definition of whatconstitutes "people". A UNESCO meeting of Ex-perts on Further Study of the Rights of Peoples con-sidered a group of individuals to be people havingthe right to self-determination if they enjoy a com-mon historical tradition, racial or ethnic identity, cul-tural homogeneity, linguistic unity, religious affin-ity, territorial connection, common life and must beof a considerable number who share the conscious-ness of being a ‘people’.48

The Tamil people fulfil all these criteria, at least asfar as the Sri Lankan Tamils are concerned. How-ever, it has rightly been suggested that the self-defi-nition of a group should be the decisive factor indetermining its existence and the according of itsright to self-determination.49 The self-perception ofthe Tamils has during the history of Sri Lankaevolved from one of asserting the distinct national-ity of the Tamils in the state of Ceylon to a full-fledged claim to self-determination in 1976.50 It wasasserted at the first national convention of the TamilUnited Liberation Front on 14 May 1976 by meansof a resolution which called for a free State of TamilEelam on the basis of self-determination. The rightof the Tamils was claimed by virtue of their lan-

guage, their religions, their separate culture and her-itage, their history of independent existence as aseparate state over a distinct territory for severalcenturies and above all by their will to exist as aseparate entity ruling themselves in their own terri-tory.51

The question which is currently at the centre of con-troversy in Sri Lanka, namely whether the right toself-determination entitles peoples to secession, hasbeen the subject of debate and of objection by stateswhich have asserted a superior principle of territo-rial integrity. Secession or external self-determina-tion in an independent state has commonly been con-trasted with internal self-determination which meansthat full guarantees must be provided for a demo-cratic process in which every citizen can participateunder conditions of full equality.52 Internal and ex-ternal self-determination are closely interrelated andthere is a strong case for external self-determina-tion if internal self-determination is being denied.In the context of a genocidal society, a call for ex-ternal self-determination will in general be thestronger, the worse the denial of the right to internalself-determination is. The latter thus provides anindicator as to whether a people are treated equallywithin a society as a people or whether they are dis-criminated against by virtue of being a people, pos-sibly up to the stage of genocide.

The main factors to be considered to assess the grant-ing or denial of internal self-determination are po-litical rights that acknowledge the distinct nature ofthe peoples, i.e. usually some form of federal struc-ture and regional self-government, as well as anequal participation in the economic, social and cul-tural development of the state in question on a demo-cratic basis. Equality of treatment in granting fun-damental rights has to be viewed as intrinsic in ademocratic concept of internal self-determination.The treatment of the Tamils throughout Sri Lanka’shistory will be examined with a view to determinewhether there has been a gross denial of the right toself-determination leading to a genocidal society.

T

15The International Crime of Genocide: The Case of the Tamil People in Sri Lanka

Political self-determination

�When in 1982, I expressed alarmto the Sri Lanka ambassador inGeneva at the threatening natureof the ethnic conflict between themajority Buddhist Sinhalese andthe minority Tamils, largely Hindu,the situation seemed to be one oflong term risk.�

Prof. Leo Kuper: The Prevention of Genocide,YaleUniversity, Press, 1985

dhism were maintained in the 1978 constitution,which introduced a presidential system and is stillin force today. The latter enshrined the unitary na-ture of Sri Lanka in the form of an entrenched pro-vision that can only be altered by a 2/3 majority inparliament and an additional approving by the peo-ple at a national referendum. It provides for equal-ity of treatment of individuals, which is subject toderogations, instead of some form of Tamil self-gov-ernment. The unitary nature of the state means thatTamil affairs have been subject to the decisions ofthe Sinhalese majority, since the Tamils lack anyregional self-determination, be it in the form of afederal structure or autonomy.

Since 1948, several attempts by Tamil representa-tives to attain political self-determination through adevolution of power have failed, most notably theBandaranaike-Chelvanayakam Pact in 195755, theDudley Senanayake-Chelvanayakam Pact in 196556,the formation of the District Development Councilsin 198157 and the establishment of regional councilspursuant to the thirteenth amendment of the consti-tution in 1987.58 This failure was due to the abroga-tion of the two pacts following violent protests ofradical Sinhalese politicians and extremists, and thelacking political commitment of successiveSinhalese governments to substantially devolvepower by providing not only the legal but also thefinancial and administrative means to do so.59

�The Sinhalese population of SriLanka has historically consideredthe Tamils as invaders, infringingon Sinhalese territory. Sinhalesemyths and legends often refer tothe triumph of Sinhalese kingsover Tamil rulers ... The identifica-tion of the Buddhist religion withSinhalese nationalism is an impor-tant element in understanding theroots of ethnic conflict in SriLanka... .�

Prof. Virginia A Leary: Ethnic Conflict and Violence inSri Lanka, Report of a Mission to Sri Lanka in July-August 1981 on behalf of the International Commis-sion of Jurists, August 1983

Since Sri Lanka gained independence in1948, none of the Tamil demands for po-litical self-government has been success-

fully implemented by successive governments. SriLanka has until today been governed as a unitarystate, initially on the basis of regional representa-tion stemming from the time of British colonial rule.

The Soulbury Commission, which was to decideupon the political make up of an independent Ceylon,rejected a demand by G G Ponnambalam of the AllCeylon Tamil Congress in 1945 for a fifty-fifty rep-resentation of Tamils and Sinhalese in parliament.This was sought for as a check against discrimina-tory legislation but was opposed by the Commis-sion as being contrary to democratic principles.53

At the time of independence, the Tamils were thusfaced with a unitary state based on regional, i.e. a5:1 ratio in favour of the Sinhalese, representation.

In 1972, the first Sri Lankan constitution was passedwithout the participation of Tamil representatives.The constitution enshrined the unitary nature of SriLanka and the dominant position of Buddhism anddid away with Section 29 (2) of the pre-independ-ence Soulbury Constitution, which prohibited thediscrimination of any community.54 The unitarynature of the state and the dominant position of Bud-


�The Tamil population of the North-ern and Eastern parts of the islandof Sri Lanka clearly meet the defini-tion of ̀ peoples� set out underinternational standards. And, mostimportantly, the relationship to theirterritory was specially recognised bythe government of Sri Lanka in theBandaranaike-Chelvanayakam Pactof 1957. The Tamils have their ownlanguage, a religious and culturalbasis distinct from the Sinhala ma-jority, and increasingly, are unitedby a passionate yearning for au-tonomy if not independence fromSinhala domination. The intensityand urgency of their demand fortheir full self-determination hasonly increased under the Sri Lankangovernment�s action that threat-ened their very physical survival.�

Statement of International Education Development at the48th Sessions of the UN Commission on Human Rights,Geneva, February 1992.

In the same year, the constitutionality of the 13thAmendment was challenged before the SupremeCourt. It was argued that the amendment modifiedthe unitary nature of the state and would thus haverequired acceptance at a referendum in addition to atwo-thirds majority in parliament in order to be valid.The Court upheld the constitutionality of the amend-ment, i.e. not requiring a referendum because it didnot modify the unitary nature of the state, by a nar-row majority, finding that the devolution of legisla-tive power was subordinate rather than coordinatewith the law-making competence of the sovereignlegislature at the centre. “Indeed, as a critical as-sessment of the judgements in the Thirteenth Amend-ment cases cannot but indicate, the unitary struc-

Moreover, one group of Tamils, the Hill CountryTamils, had until 1988 been deprived of their rightto citizenship and their right to vote, thus renderingthem completely powerless.60 This had been theresult of three Acts passed immediately after inde-pendence, the Ceylon Citizenship Act No.18 of1948, the Ceylon (Parliamentary Elections) Amend-ment Act of 1949 and the Indian and Pakistani Resi-dents (Citizenship) Act No.3 of 1949, which strippedthe Hill Country Tamils, who then numbered abouta million and supported the left-oriented CeylonIndian Congress, of their citizenship and vote.61 Af-ter two Indo-Sri Lankan repatriation agreements anddespite two legislations - Grant of Citizenship to theStateless Persons Act of 1986 and Grant of Citizen-ship to the Stateless Persons (Special Provisions)Act of 1988 - there still remain today 85,000 HillCountry Tamils who are stateless.62 Hill CountryTamils granted citizenship by registration continueto suffer disabilities by provisions of the Citizen-ship Act 1948 which have become entrenched byprovisions in the 1978 Constitution.

The war in the Northeast, which began in 1983, haschanged the dynamics of political self-determina-tion. The LTTE (Liberation Tigers of Tamil Eelam)has come to be the major political representative ofthe Tamils by virtue of its military potential. Thegrowing militancy was at least partly fuelled by theanti-Tamil riots in 1983 and the subsequent SixthAmendment to the Constitution in the same year,which required MPs to swear an oath renouncingsupport for a separate state and made any separatistactivities a criminal offence. The members of theTULF, the then major opposition party, refused totake the oath and lost their seats accordingly.63

Between 1983 and 1993, several peace talks, partlywith Indian mediation, were held. The extent of self-determination granted to the Tamils by the SriLankan government played a major part in thesetalks, most notably resulting in the 13th Amendmentof the Constitution as an implementation of the 1987Indo-Sri Lanka accord which was entered into with-out Tamil representation. The 13th Amendment pro-vided for new, elected provincial councils with de-volved legislative powers from the centre. TheNorthern and Eastern Provinces, which had beendescribed as the ‘historical habitation of Sri LankanTamil-speaking peoples’ in the Indo-Sri Lanka ac-cord, would be merged into one provincial unit pend-ing the outcome of a referendum in the east.


53 see S.S.Misra: Ethnic Conflict, p.4254 see K.M.De Silva: Managing Ethnic Tensions, p.25255 see K.Jayawardena: Ethnic and Class Conflicts, p.9856 see K.M. De Silva: Managing Ethnic Tensions, p.19157 see E.Nissan: A Bitter Harvest, p.1558 see H.J.Whall: Right to Self-Determination, pp.211-23059 see P.Hyndman: Human Rights in Sri Lanka,p.343 and E.Nissan: A Bitter Harvest, pp.13,1760 see ibid., pp.31,3261 see S.Ponnambalam: Tamil Liberation Struggle, pp.75-7962 see U.S. State Department: Country Report 1996, Section 563 see P.Hyndman: Human Rights in Sri Lanka, p.34564 G.L.Peiris: Continuing Ethnic Conflict in Sri Lanka: Current Constitutional Dimensions in: Public Law, 1988, p.52365 see E.Nissan: A Bitter Harvest, p.17 and TIC: Sri Lanka: Devolution Proposals, p.266 see Sri Lanka Monitor, No.108, January 1997, p.167 see TIC: Sri Lanka: Devolution Proposals, p.168 B.Cashman, J.Laffon, P.Nanda: Human Rights Crisis, p.373

ture can no longer accommodate the existing devo-lutionary arrangements without palpable artificial-ity of reasoning and the use of implausible seman-tics”.64

In 1988, the Eelam People’s Revolutionary Libera-tion Front (EPRLF) gained control of the Northeast-ern Provincial Council as a result of an election vic-tory. However, the Council was not given compre-hensive powers and financial means by the centralgovernment, and was dissolved after the Indiantroops left Sri Lanka in 1990 and has since thenceased to operate.65

In 1994, when the People’s Alliance came into powerand Chandrika Bandaranaike Kumaratunga waselected president on a platform for peace, new peacetalks were entered into and a cease-fire agreed upon.The LTTE broke the cease-fire in 1995, accusingthe government of lacking co-operation in fulfillingtheir demands. The government responded bylaunching a “peace through war” campaign, result-ing in intensified warfare. Amid the continuing war,the government presented devolution proposals. Theimplementation of the proposals is subject to a two-thirds majority approval in parliament and a nationalreferendum, which has not yet been held. Accord-ing to the Constitutional Affairs minister, G L Peiris,a non-binding referendum for the areas of devolu-tion of power to the regions, abolition of the execu-tive presidency, transfer of current executive powerto parliament, establishment of a second parliamentchamber to allow more representation to minoritycommunities and increase of powers of the SupremeCourt will be held if the main opposition UnitedNational Party (UNP) continues to oppose the devo-lution proposals in parliament.66 The governmenthas a wafer-thin majority in Parliament and the sup-port of the UNP is essential for a two-thirds major-ity. In addition to UNP’s opposition, the devolution

proposals have been drafted without the participa-tion of Tamil representatives and are rejected byseveral Tamil groups as not being far-reachingenough to satisfy the aspirations of the Tamil peo-ple.67

The history of Sri Lanka and its general state policyhave been marked by the promotion of national unityat the expense of the Tamils.68 A real, lasting formof political self-determination within, politically andconstitutionally recognised by the state of Sri Lankahas yet to be achieved.

�Maximum resistance is to be ex-pected from governments when thedemand takes the form of seces-sionist self-determination. I recall adiscussion at Geneva with theambassador for Sri Lanka whocommented, with I think a note ofhorror in his voice, that the Tamilopposition party was seeking tosecede. ̀ No government�, headded ̀ would agree to that�. And Isuppose this is generally true, but itis no reason for excluding thepossibility of secession. However,criteria for legitimacy need to beestablished.�

Prof. Leo Kuper: The Prevention of Genocide, YaleUniversity Press, 1985.


Colonisation �The Tamil concern about colonisa-tion is related to insecurity abouttheir physical safety and to fearsthat Tamils will become a minorityin their traditional homelands...TheTamils answer that they are notopposed to individual migration butonly to large-scale governmentcolonisation schemes which changethe ethnic composition of an area.�

Prof. Virginia A Leary: Ethnic Conflict and Violencein Sri Lanka, Report of a Mission to Sri Lanka in July-August 1981 on behalf of the International Commis-sion of Jurists, August 1983

Colonisation denotes government sponsoredsettlement of families as peasant coloniesin areas demarcated for agricultural devel-

opment.69

It began in 1935 but took on a political dimensionafter independence, when successive Sinhalese gov-ernments used colonisation to bring about a shift inthe demographic composition of the north and eastby inducing Sinhalese peasants and fishermen to set-tle in these areas.70 Moreover, colonisation was ac-companied by massive projects, aimed at recon-structing ancient irrigation works and exploitingnatural resources.71

Successive governments always maintained that SriLanka was one country where everybody was al-lowed to settle anywhere. Moreover, the region inquestion, the jungle-cleared dry lands in the northand east, was previously sparsely populated andpurportedly colonised to favour the landless peas-ants and underprivileged.72 The Tamils objected tothe government-planned and executed colonisationof what they regard to be their traditional homeland.The influx of Sinhalese settlers slowly eroded theTamil majority in the East, thereby undermining theTamils' communal homogeneity and territorial basefor self-determination.73 The Sri Lankan governmentin 1963 carved out an electorate for the Sinhalese,Ampara, by splitting the Batticaloa district into twoelectorates, after the area had been specially targetedfor colonisation.74 Furthermore, the benefits of colo-nisation projects did primarily accrue to theSinhalese majority.75

Since the 1950s, several agreements between thegovernment and Tamil leaders, providing for a colo-

nisation policy addressing legitimate concerns of theTamils, most notably the Bandaranaike-Chelvanayakam and the Dudley Senanayake-Chelvanayakam pacts as well as the 13th Amend-ment to the Constitution, have failed to be imple-mented.76 Instead, radical land reforms were imple-mented in 1972, which nationalised estates and dis-tributed excess land to the landless Sinhalese.77 Sincethen, colonisation policies have been pursued to thedetriment of the Tamil population, in particular lan-dless peasants, which fuelled militant reactions byTamils, not least after the Sri Lankan governmentstarted to bring in ex-convicts and armed settlers,the so-called home guards, in 1984.78

Colonisation has gone hand in hand with violencedirected against the Tamils, particularly in the courseof the riots in 1956, 1958, 1977, 1981 and 1983,during which colonised areas had been the worstaffected. Before 1983, this was due to the confron-tational policy of massive projects and settlementsthat not only ignored Tamil concerns but was alsoaimed at thwarting any claim of the Tamils for ahomeland made up of the North and the East. Thelatter has for this purpose been the prime target of


colonisation schemes which were often carried outby means of forceful evictions of the Tamil inhabit-ants of the area in question. After 1983, the addi-tional policy of using Sinhalese settlers as commu-nal armed forces and of using new Sinhalese settle-ments as buffer zones for the army against LTTEattacks has exacerbated the already existing tensionsand has resulted in a cycle of violence.79

Colonisation and continuing Militarisation since1983, i.e. setting up of army camps, military bases,security zones and the occupation of Tamil areas,have had a devastating impact not only on the secu-rity of Tamils living in their traditional areas butabove all on the conditions under which the veryexistence of the Tamils as a people is possible in afuture Sri Lanka.

69 T.Valluvan: Ethnic Conflict, p.970 see H.P.Chattopadhyaya: Ethnic Unrest p.26 and S.D. Muni: Pangs of Proximity, p.4271 see P.Hyndman: A study in microcosm,p.28372 see W.Warnapala: Ethnic Strife, p.8073 see H.J.Whall: Right to Self-Determination, p.20874 see M.Vije: Colonisation, pp.15,1675 see D. Hellmann-Rajanayayam: The Concept of a “Tamil Homeland” in Sri Lanka-its meaning and development in: South Asia, Vol.XIII, No.2, 1990, p.10676 see P.Hyndman: A study in microcosm, p.28477 see H.P. Chattopadhyaya: Ethnic Unrest, p.2678 see W.Warnapala: Ethnic Strife p.18479 see M.Vije: Colonisation, pp.8-18

Killed and burned


Economic, social and cultural development

n Language

The discrimination against the Tamil language hasbeen the most controversial and possibly the mostmomentous form of unequal treatment of Tamils inSri Lanka. In 1956, the Official Language Act, whichmade Sinhala the sole official language, was passed,sparking off the first riots against peaceful Tamilprotesters.80 It was the outcome of the Swabasha(mother tongue) movement, which had emerged inthe 1920s on a populist basis against the English-speaking elite. Initially being propagated bySinhalese and Tamils on an equal basis, theSwabasha movement turned into a Sinhala-onlypolicy as advocated by radical Buddhists and theemerging petty bourgeoisie.81

Consequently, Sinhala was made the language ofadministration and public employment even thoughthe majority of Tamils could not speak Sinhala. Thisresulted in severe disadvantages in education, pub-lic employment and communication with govern-ment agencies in addition to the symbolic signifi-cance of Sinhala-only.82 The discriminatory use ofEnglish as the language of the colonialists and theelites at the expense of the majority of the popula-tion had thus been replaced by Sinhala at the ex-pense of the Tamils.

�The Sinhala only Bill...There is thedanger of the division of thecountry...if those people...feel thata grave and irreparable injustice isdone to them, there is a possibilityof their deciding even to breakaway from the rest of the country.�

Leslie Goonewardena, Sinhala Opposition Memberof Parliament, Hansard, 8 June 1956

�We are completing by this (SinhalaOnly) Bill an important phase in ournational struggle. The restoration ofthe Sinhala language to the posi-tion it occupied before the occupa-tion of this country by foreign pow-ers, marks an important stage inthe history of the development ofthis island.�

Phillip Gunawardene, Sri Lankan Cabinet Minister,Hansard, 14 June 1956

Subsequently, several agreements between Sinhaleseand Tamil politicians, viz. the Bandaranaike-Chelvanayakam Pact in 1957 and the Senanayake-Chelvanayakam Pact in 1965 providing for the rea-sonable use of Tamil as the language of administra-tion in the north and east as well as of education andpublic-service entrance exams, were abrogated andlaws of the same nature failed to be implemented inthe face of violent protests from radical Sinhalesefactions.83 The language policy violated Section 29(2) of the Soulbury Constitution, which prohibitedthe discrimination of any community in Sri Lanka,as the District Court of Colombo and indirectly thePrivy Council held in the Kodiswaran case in 1969.84

Nevertheless, the 1972 constitution, instead of ad-dressing Tamil concerns, enshrined the 1956Sinhala-only law and did away with the protectiongranted under section 29 (2) of the former SoulburyConstitution.

In the 1978 constitution, Tamil was declared to be anational language and provisions were made for itsuse in the administration and courts of the northernand eastern regions. In 1987, under the Thirteenth


Amendment to the Constitution, Tamil was made“also” an official language. However, there havebeen frequent complaints by Tamils that the gov-ernment has failed to implement these provisions,e.g. government agencies still reply in many casesin Sinhala to letters written in Tamil by Tamil peo-ple.85 The Language Commission appointed by thegovernment to implement the language policy, par-ticularly the use of Tamil, has proved to be ineffec-tive.

The concessions in the language question have onlybeen granted after frequent discrimination on thegrounds of language had resulted in violent Tamilresistance. The language question, being one of themain causes and features of the ethnic conflict sinceindependence, has ceased to be of primary impor-tance after 1979 due to the political struggle for self-determination, and subsequent symbolic changes bythe Sri Lankan government have thus amounted totoo little, too late.

n Religion

The constitutions of 1972 and 1978 provided that“ the Republic of Sri Lanka shall give to Buddhismthe foremost place and accordingly it shall be theduty of the state to protect and foster Buddhism(1972): the Buddha Sasana (1978)". The latter pro-vision has been reiterated in the 1995/1996 devolu-tion proposals of the People’s Alliance governmentwhich have gone a step further in making it incum-

bent on the State to consult a Buddhist SupremeCouncil all matters pertaining to the protection andfostering of Buddhism. These provisions accordBuddhism a dominant place in Sri Lanka althoughfreedom of religion and equality of treatment is alsoprovided for in the 1978 constitution.

However, in the context of Sri Lankan politics, theequation of the national interest with the protectionof Buddhism has fostered a militant anti-Tamil Bud-dhism which has sought domination in the politicaland cultural sphere of society. It has thus played animportant ideological role in legitimising a policyof discrimination against minorities on religiousgrounds.86

Consequently, some Hindu and Christian places ofworship, predominantly in the North and East, havebeen forcibly changed into Buddhist shrines, par-ticularly as a means of claiming a settlement for theSinhalese in the context of colonisation, and acquiredby successive governments by way of expropria-tion.87 The destruction and desecration of templeshas been a frequent feature in anti-Tamil riots, re-sulting in the destruction of 16 and 39 places ofworship in the riots of 1977 and 1983 respectively.88

Since the beginning of the war, numerous places ofworship have been destroyed, damaged and looted;destroyed by being either burned, bombed orshelled.89 The total number of places of worshipdamaged or destroyed from 1983 to 1993 is 1,479.90

One of the most recent atrocities in this regard was

�The temples are at the very cen-tre of village or community life andforms an integral part of the socialinfrastructure. In the present cir-cumstances it has special signifi-cance in that it gives displaced/affected people the moral strengthand courage to restart their shat-tered lives.�

Office of the Minister of State for Hindu Religiousand Cultural Affairs: Rehabilitation of Hindu Templesin the North-East Province, 1996.

Destruction of Hindu Temples


the bombing of a church compound at Navlay on 9July 1995, which killed at least 65 civilians.91 Moreo-ver, particularly after 1983, a number of religiousleaders, priests and devotees have been killed, ofteninside a temple or a church, as well as arrested andtortured, on the grounds of their religion and be-liefs.92

n Culture

Tamil culture has been discriminated against or at-tacked in a variety of ways. Bound up with coloni-sation and Buddhism-first policy, the official his-tory of Sri Lanka claims the right of the Sinhalesepeople to live and rule in the whole country. In or-der to legitimise colonisation, Buddhist sites havebeen “discovered” in the North and East while arte-facts of Hindu origin have been suppressed.93 Ar-

�With several high rankingSinhalese security officers and twocabinet ministers, Cyril Mathew andGamini Dissanayake present in thetown (Jaffna), uniformed securitymen and plainclothes thugs carriedout some well organised acts ofdestruction. They burned to theground certain chosen targets -including the Jaffna Public Library,with its 95,000 volumes and price-less manuscripts, a Hindu temple,the office and machinery of theindependent Tamil daily newspaperEelanadu...Four people were killedoutright. No mention of this ap-peared in the national newspapers,not even the burning of the Library,the symbol of the Tamils� culturalidentity...�

Nancy Murray: The State against the Tamils in SriLanka - Racism and the Authoritarian State, Race &Class, 1984.

�I am distressed at the ongoingoppression of the Tamil people bythe government of Sri Lanka...Every culture is vital and has itsown contributions to make to theworld.�

Archbishop Desmond Tutu, April 1996

chaeology has thus been used for political ends,thereby depriving the Tamils of their right to freelydiscover by means of unimpeded and unbiased re-search their own history on the basis of archaeo-logical findings.

There have been numerous incidents directly aimedat destroying or disrupting Tamil cultural life, mostnotably the forceful disruption of the fourth Inter-national Conference for Dravidology and Tamil Lin-guistics in Jaffna in 1974. Hundreds of Sinhalesepolicemen attacked participants without any appar-ent reason throwing tear gas into the assembly, re-sulting in the death of nine Tamils in the ensuingchaos.94 Another example is the deliberate burningof the Jaffna library, which contained some 95,000volumes and rare manuscripts and was the centre-piece of the cultural heritage of Tamil life, by thepolice on a rampage in 1981.95 The attack had beenplanned and supervised by government ministers.

In terms of contemporary cultural life, the culturalexchange between Tamil Nadu in India and the SriLankan Tamils has been severely restricted.96 Moreo-ver, since 1994, several Tamil programmes in theSri Lanka Broadcasting Corporation, which is fullycontrolled by the government, have been curtailedor completely banned.97 "As a matter of fact", ex-plained former Chairman of the State TelevisionNetwork, Rupavahini, M Vasantharajah, "there isno independent Tamil section in the Sri LankanRupavahini (Television) Corporation. All Tamil pro-grammes are controlled by officers in charge of theSinhala section. Tamil programme producers aremarginalised and are being deprived of facilities. Iattempted to change the situation but was unsuc-cessful."


� The Jaffna Public Libraray constructed in theancient Dravidian architectural style was one ofthe biggest in South Asia and a proud possessionof the Tamil people. It was burnt down by policeunder the direction of Sinhalese politicians on 1June 1981, during night curfew hours underEmergency, with 97,000 books and irreplaceablerare manuscripts.�

Visvanathan, Mayor of Jaffna, 1983


Destruction of Public Library

The various incidents were directed against theTamil culture as such, thereby constituting culturalgenocide, and have not only seriously weakenedTamil culture but also threaten its free present andfuture exercise.n Education

Education has played a key role in relegating Tamilsin Sri Lanka’s society.

The Hill Country Tamils have been the most disad-vantaged group since they were excluded from ter-tiary education and government scholarships on thegrounds of their statelessness, and suffered fromstructural disadvantages, i.e. low standards and ne-glect in investment in the education of Hill CountryTamils. Despite recent improvements, they still haveby far the worst educational record in terms of lit-eracy rates and higher education.98

The Sri Lankan Tamils were facing disadvantagesdue to the linguistic segregation, i.e. education inthe mother tongue, as a result of the Sinhala-onlypolicy, and the nationalisation of schools which ledto the conversion of several previously Tamil schools

�The Government should re-examine its policies on univer-sity admissions with a view tobasing admissions on meritrather than on racial grounds.Tamil and Sinhalese youngpeople alike will then haveequal rights to University edu-cation on the basis of capacityrather than on race. �

Prof. Virginia A Leary: Ethnic Conflict and Vio-lence in Sri Lanka, Report of a Mission to SriLanka in July-August 1981 on behalf of the Inter-national Commission of Jurists, August 1983

into Sinhalese schools.99

The major discrimination of Tamils in the educa-tion system has been the university admission sys-tem. Until 1970, admission was on the basis of themerit at entry examinations. As a result of lobbyingby Sinhalese groups against the alleged unfair ad-vantages enjoyed by the Tamils, which were actu-ally due to a traditionally strong representation ofthe Jaffna Tamils in higher education, the govern-ment abandoned the merit system. Instead, it intro-duced standardisation which meant that Sinhalesestudents needed lower qualifying marks to gain uni-versity admission than their Tamil counterparts.Amid Tamil protests and Sinhalese demands for fur-ther changes, the government devised severalschemes, among them the district quota system in1974, which provided for the accommodation of stu-dents on a district basis. Purportedly a measure tofavour the rural and underprivileged child, thescheme resulted in a dramatic fall in the percentageof Tamil students at the advantage of Sinhalese stu-dents.100 Since then, standardisation has been abol-ished and several conciliatory gestures introducedwithout resulting in a reversal of the general policy,i.e. affirmative action in favour of the majority.101

The university admission policy between 1970 and1974 convinced many Tamils that it was futile to


"Nothing aroused deeper de-spair among Tamils than thefeeling that they are being sys-tematically squeezed outof higher education. �

Walter Schwarz: Minority Rights Group, 1983

Destruction of schools and educational institutions

expect equality of treatment within the Sinhalesemajority and immensely strengthened separatistforces within the Tamil United Front.102 The out-right discrimination and the consequent shutting offfrom employment opportunities radicalised theTamil youth, prompting many of them to join thethen relatively small group of Tamil Tigers. It thusmarked a watershed in terms of equality of treat-ment as an essential part of internal self-determina-tion.

Since the beginning of the war, the educational dis-advantages of the Tamils have been aggravated byseverely disrupted school and university services inthe North and partly in the East due to the killing ofteachers and students alike, the displacement ofteachers and students, the destruction of schoolbuildings and the lack of means to maintain an ad-equate school service.103 The massive exodus of welleducated Tamils over the years and the almost com-plete breakdown of the education system in the northand partly the east have seriously weakened the in-tellectual backbone of the Tamil people and under-mined their prospects of being a viable communityin Sri Lanka.

�...the Jaffna NGO Consortiumsays that Jaffna people faceenormous difficulties in day-to-day life. Militaryoperations have damaged 80%of the 176,300 housesin the peninsula. Over 17,000houses have been completelydestroyed. A numberof houses and schools are occu-pied by the Army...People complain that a largenumber of trees, including coco-nut and palmyrah trees provid-ing livelihood, are being cutdownfor military use.�

British Refugee Council: Sri Lanka Monitor: July1997

n Economic development

The economic development of the Tamils as indi-viduals and as a community has been hampered bystructural discrimination in the pre-war era and theimpact of the war thereafter.

The Hill Country Tamils have been the economi-cally most disadvantaged group throughout Sri Lan-ka’s history since early 19th Century. Although pro-ducing 35% of the total wealth, they appropriate lessthan 5% of the national income. Their lower andsegregated status was rooted in colonial history andperpetuated and exacerbated by successive SriLankan governments which disabled them by refus-ing citizenship and franchise. Their statelessness,poor education and poor living conditions ensuredtheir continuing economic backwardness and despitesome improvements in the recent past, the situationof the Hill Country Tamils, in particular on the plan-tation estates, remains appalling.104

The Sri Lankan Tamils have suffered economic dis-crimination in several respects. Being strongly rep-resented in the public sector, the main provider ofemployment in Sri Lanka, the majority of the Tamilswere from the time of independence onwards drivenout of employment by means of a discriminatoryrecruitment policy and dismissals as a result of thefailure or unwillingness of Tamil employees to com-ply with the Sinhala-only requirement.105 By now,the Sinhalese, whose representatives claimed thatthese policies were at least partly justified to rectifyimbalances stemming from the colonial time, havea disproportionate share of over 85% in the publicsector, and several government agencies are almost

Destruction of cottage industries and factories


�The data presented...clearlyidentifies the dilapidated state ofthe health service in the North-East Province. There has devel-oped over the years a steady andsystematic depletion of bothmedical and paramedical staffand a significant reduction inhealth care expenditure com-pared to the rest of Sri Lanka.�

Dr C S Natchinarkinian: Current Pattern of HealthCare and Resource Allocation; Conference proceed-ings - Victims of War in Sri Lanka: A Quest for HealthConsensus, 1995

entirely Sinhalese, such as the police and the army.106

In the north and east, Tamils working in the agricul-tural sector have faced disadvantages by losing outland to incoming Sinhalese settlers under the colo-nisation schemes. The region has not shared the ben-efits of colonisation schemes and has instead, par-ticularly in remote areas, been the subject of neglectand lacking government investment in infrastruc-ture or private sector industries, thus not attractingany foreign investment.107 Internationally fundeddevelopment projects have also not been used todevelop underdeveloped areas in the North andEast.108

The 1983 riots in Colombo were deliberately tar-geted against Tamil economic activities and had adevastating impact on the Tamil share in theeconomy of the capital.109 Thereafter, the ensuingwar brought the targeted destruction of roads,bridges, transport equipment and means of employ-ment, such as farms, fishing boats, factories etc. aswell as of crops and animals. Entire villages havebeen looted and wiped out by military attacks, kill-ing and displacing a large number of persons, thelatter not being able to take up employment due tothe destruction of their homes, their land and theirmeans of living. The massive killing and exodus ofparticularly the younger generation has underminedthe economic continuity and viability of the region.110

In 1991, an economic embargo was imposed by thegovernment, banning 42 items, including medicines,fertilisers, chemicals and fuel. The latter officiallyapplies only to the north, but the army has bannedseveral essential items to the east as well.111 In addi-tion, severe restrictions on fishing and rice cultiva-tion have been imposed on the grounds of security.Moreover, large areas are inaccessible for economicpurposes due to military occupation or landmines.112

The economic blockade and the continuing warfarehas resulted in the deprivation of such basic needsas food, shelter and fuel, a breakdown of the eco-nomic infrastructure and the loss of employment forlarge sections of the Tamil population, thereby fur-ther threatening the survival of the Tamil people inSri Lanka.

n Health

Tamils in Sri Lanka suffer from deteriorating healthconditions due to structural disadvantages and thecontinuing war.

The Hill Country Tamils do not share the same stand-ard of living as other Sri Lankans. Low income, poorworking conditions, unsatisfactory housing, inad-equate and unhygienic sanitary conditions, lack ofclean drinking water, lack of proper health care edu-cation and health services have all contributed tomalnutrition and the spread of infectious diseases.After years of neglect, the health situation of theHill Country Tamils in the 1970s was marked byhigh levels of malnutrition, infant and maternalmortality rates, disease and stunting and wastingamong children. The open economic policy of the

Attack on hospitals and medical centres


UNP since 1977 and the recent privatisation of theestate management have aggravated this trend, lead-ing to worsening malnutrition due to high foodprices, thus leaving the Hill Country Tamils trappedin the cycle of poverty and neglect which lies at theheart of their continuing structural discrimination.113

The health condition of the Sri Lankan Tamils hasconstantly deteriorated since the beginning of thewar. It has been estimated that 35,000 Tamil civil-ians were killed between 1983 and 1993, while atthe same time 1,224,000 Tamils have been displacedand 469,000 children have become orphans.114 Therefugees living in refugee camps or makeshift shel-ter suffer from appalling health conditions whichhave in January and February 1997 alone resultedin the death of 150 Tamils in 16 refugee camps inthe Pooneryn area of the Vanni.115 Tamils living inthe north and east suffer from malnutrition and anincrease in a number of diseases, such as malaria,leprosy, cholera, tuberculosis, mental disorders, can-cer and deafness.116 Moreover, hospitals have beendamaged as a result of bombing and shelling, lackof transport prevents emergency treatment in caseof injuries, and the restricted supply of medicinesand medical equipment in conjunction with a short-age in trained personnel makes adequate treatmentof diseases extremely difficult, thus often resultingin the death of patients.117

The enormous damage done to the physical and men-

Destruction of homes and environs

�...the imposition of censorshipunder emergency, the denial tojournalists of access to the conflictzones and the areas to whichmost displaced people had fled,the threats to the work of humani-tarian organisations, and the lackof progress in implementing thegovernment�s media policy - allreinforce the continuing need forscrutiny of freedom of expressionissues in Sri Lanka. They demon-strate the urgent need for thegovernment to show a concretecommitment to the values it hasproclaimed by proceeding with itspromised reforms without delay.�

Article 19, International Centre Against Censorship,March 1996.

tal health of the Tamils, particularly in the Northand East, has had and continues to have a devastat-

ing impact on the Tamil community.

n Communication

Freedom of movement and freedom ofexpression have been considerably cur-tailed in the North and to a lesser degreein the East.

Travelling to and from the North is ex-tremely difficult. There is no train orfreely accessible air services to Jaffna,and ferry services to India have been sus-pended indefinitely. Restrictions on fuelresulting from the economic blockadehave brought public transport to a halt.Travelling itself is dangerous as severalcivilians have been killed by the army,especially when travelling by boat, orhave been subjected to harassment andrepeated controls at army checkpointswhen trying to leave the North. Given


the restrictions on free movement imposed by theLTTE, Tamil civilians have been trapped in the areaof war. As foreigners are only allowed to travel tothe North with special permits and can only do sowith great determination, the North has been effec-tively cut off from the outside world.118

Freedom of expression has been another casualty ofthe war. Since 1985, telephone connections havebeen disconnected and postal services have been dis-rupted or controlled by the postal authorities andthe army. Currently there are only three telephonesfor a population 450,000 in Jaffna to make callsoutside. Due to the ban on paper and the lack ofelectricity and the ban on batteries, newspapers hadstopped printing and radios and televisions couldnot be used in the North for several years. Currentlyone or two newspapers are allowed to publish. Butthese are under control and publishers have no freehand.

The government controls a large part of the mediaand has repeatedly imposed media censorship. FromSeptember to December 1995 and from April to Oc-tober 1996, the government subjected all news re-lating to the conduct of the war by the armed forcesand the police to strict government censorship.119

Since foreign journalists require a special permit toenter the North and LTTE areas in the East and sincethe Tamil media have been largely inoperative dueto government restrictions, there are virtually no in-dependent national or international media that arein a position to adequately cover the events in theNorth and partly in the East.120

The restrictions and controls imposed on transport,movement and information have resulted in an al-most total isolation of the North and some areas ofthe East. It not only deprives the Tamils of their rightto communication in the broadest sense but alsoserves as a precondition and possible cover-up ofacts of warfare that violate the fundamental rightsof the Tamil people.

n Violation of fundamental rights

The 1978 constitution contains a section on funda-mental rights, including such rights as the prohibi-tion of torture and inhuman and degrading treatmentor punishment, freedom from arbitrary arrest, theright to a fair trial and a number of procedural rights,freedom of thought and religion, freedom of expres-sion, peaceful assembly and freedom of movement,

�The fact that the PTA was madepermanent...indicates that thegovernment intended to use theweapon of preventive detentionpermanently and not merely as atemporary measure in dealing withthe minority problem.�

Ethnic and communal Violence: The Independence ofthe Judiciary: Protection of Fundamental Rights andthe Rule of Law in Sri Lanka - Fragile Freedoms? -Report of an ICJ Mission to Sri Lanka in June 1983 -Timothy J. Moore

which are however subject to restrictions on broadgrounds, as stipulated in Article 15. The fundamen-tal rights are protected by the Supreme Court pursu-ant to Article 126 which allows a petition to the Su-preme Court within one month of the date when theinfringement of a fundamental right had allegedlytaken place.

Sri Lanka has also ratified a number of treaties un-der international law which provide for the protec-tion of fundamental rights, in particular the Interna-tional Covenant on Civil and Political Rights(ICCPR) and the Convention against Torture.

In spite of these constitutional guarantees and inter-national obligations, a number of discriminatorylaws have been passed and are largely still in forcewhich provide the legal mechanisms for the viola-tion of fundamental civil and political rights of theTamil people. The laws considered below, the Pre-vention of Terrorism Act (PTA) and various emer-gency regulations (ERs), were officially proclaimedto be necessary to successfully combat terrorism. Ithas often been suggested that their subsequent re-pressive and indiscriminate use against Tamils, inparticular young Tamil men, was a major cause inradicalising Tamils and turning them into “terror-ists”.121 Moreover, the PTA and ERs were the foun-dation for state terrorism122 and government repres-sion against the Tamil demand for self-determina-tion.123

The most notorious of these laws is the Preventionof Terrorism Act No. 48, as amended by the Pre-


vention of Terrorism (Amendment) Act No.10 1982,which remains in force today. The PTA was almostexclusively tailored to be used against Tamil mili-tants. It grants the security forces broad powers toarrest and detain any person suspected of an unlaw-ful activity. An “unlawful activity” is defined in thewidest possible terms in sections 2 and 31 of theAct, and includes activities such as “the use of wordsand signs which cause or are intended to cause reli-gious, racial or communal disharmony or feelingsof ill-will or hostility between different communi-ties or racial or religious groups”. This definitionimplies not only a total negation of the Tamils’ rightto self-determination and the individual’s freedomof expression, but renders all kind of political ac-tivities of Tamils liable to result in arrest and pre-ventive detention, effected by the exercise of broaddiscretion on the part of the security forces. Anyperson suspected of an unlawful activity can be de-tained for a period of 18 months at a time in suchplace and subject to such conditions as may be de-termined by the minister pursuant to section 9 ofthe Act. There is no requirement to bring the de-tained person before a magistrate at any time, anddetention orders shall be final and shall not be calledin question in any court or tribunal according to sec-

tion 10. This means that detainees may be held in-communicado, without access to lawyers or relativesand without being brought before a judge.

The erosion of legal safeguards was exacerbated in1982 when the amendment to the PTA, enacted inresponse to an adverse Supreme Court order, stipu-lated that a detainee could be kept in the custody ofthe army even while the trial against him was inprogress.

In addition to the arrest and detention powers, thePTA provides in section 16 that confessions madeto police officers who are not below the rank of As-sistant Superintendent shall be admissible in evi-dence and places the burden of proof regarding theinadmissibility of such confessions, in a subsequenttrial. on the accused. Section 31 of the Act is retro-active, and the Act contains provisions providingfor prison terms including life imprisonment for theoffences stipulated in the PTA. It operates, pursuantto section 28, notwithstanding anything containedin any other written law and its provisions are toprevail in the event of any conflict or inconsistencywith any other written law.124 The PTA is an ex-traordinary instrument of repression that has beencompared to the similar South African legislationin force at that time.125

Persons targeted under the PTA are stripped of anyform of legal protection as provided by the consti-tution, the Code of Criminal Procedure Act whichcontains strict legal safeguards, the Evidence Ordi-nance which provides that confession made in po-lice custody is only admissible to corroborate otherindependent evidence, and under the rules of inter-national law. They are subjected to the unrestrainedpower of the security forces to arrest and detain themincommunicado for up to 18 months as well as totorture, the use of which as a means of extortingconfessions is encouraged by the provisions of thePTA.

A number of Emergency Regulations (ERs) havebeen made under the Public Security Ordinance. SriLanka has, since 1961, for most of the time beenruled under a state of emergency, in particular since1983. The ERs passed after 1983 were directedagainst “terrorists” but common people sufferedheavily due to violent acts of the army.126

The ERs had mainly two thrusts, i.e. control of theterritory and control over individuals. Firstly, ERspromulgated in 1984 declared certain areas in the


Torture chamber

magistrate who exercises discretion based on reportsof the Ministry of Defence.130 If persons are arrestedon suspicion of having committed an offence underan ER, they can be held for two months in the northand east.

Since 1991, measures were introduced which weresupposed to safeguard the rights of detainees underERs. In 1993, a list of authorised places of deten-tion maintained by several security forces was pub-lished. In June 1994, the Human Rights Task Force(HRTF) of 1991, whose task is to register detaineesheld under the PTA and the ERs and to monitor theirwelfare, was re-established. Directives issued by thePresident under ERs ordered the security forces to

issue arrest receipts,which was aimed atpreventing disap-pearances. Moreo-ver, access of detain-ees to their familiesshould be afforded.According to addi-tional ERs of 1995,detention orders by amember of the armedforces must be noti-fied to the officer incharge of the nearestpolice station within24 hours after the ar-rest131. The issuingof arrest receipts andthe notifying of theHuman Rights TaskForce are however

routinely ignored by the security forces.132 The Su-preme Court pointed out in a case in December 1996that ERs had been breached by the authorities in-cluding the Secretary of the Ministry of Defence.Although the authorities and security forces can befined or jailed for failure to comply with the ERs,none is known to have been punished. The HRTFwas scrapped in July 1997, thus increasing the pos-sibility of disappearances.133

The PTA and the various ERs have been repeatedlycriticised for providing a ready context for killingsand torture.134 The Human Rights Committee, whosetask is to study reports submitted by state partiesunder the International Covenant on Civil and Po-litical Rights (ICCPR), and to comment on whetherthe measures adopted by the state parties give effectto the rights recognised in the covenant, found that:

north to be prohibited zones and others to be secu-rity zones. The ERs made permits for travel and forvehicles compulsory. Long curfews were also im-posed under ERs. These ERs resulted in strict cur-tailment of movement and public transport, and ad-versely affected schooling, provision of medical careand employment opportunities.127 The economicblockade of 1991 was also imposed according toERs, and ERs of the nature described above werere-imposed in 1995.

Since 1979, and increasingly after 1983, ERs wereadopted which gave the security forces wide pow-ers of supervision, search, arrest and detention, es-pecially prolonged incommunicado detention. Themost notorious ERwas regulation 15 Awhich placed the de-cision as to the pos-session and crema-tion or burial dis-posal of bodies witha senior member ofthe police force anda member of the ex-ecutive. This provi-sion, being an openinvitation for tortureand killing free ofany judicial re-straint, came undersevere internationalcriticism and was re-pealed in 1984.128

However, the ERsenacted in its steadalso failed to provide for adequate judicial safe-guards. ERs in force provide for a special proce-dure in cases which the security forces claim to havetaken place in the course of an armed confrontation.Although the High Court in Colombo has jurisdic-tion to hold an inquiry, its exercise depends on aprior decision of the Inspector General of the Policewho also decides about the evidence to be consid-ered. There is thus still no independent procedurein place by which deaths in custody or at the handsof the military can be investigated, a fact which ac-counts for much of the impunity accorded to the se-curity forces.129

ERs in force, mostly regulations issued on 17 June1993 in their revised version, give the security forceswide powers of arrest and preventive incommuni-cado detention for one year or longer if ordered by a


Tortured and burned

“The domestic legal system of Sri Lanka con-tains neither all the rights set forth in the Cov-enant nor all the necessary safeguards to pre-vent their restrictions beyond the limits es-tablished by the Covenant.” 135

The PTA and ERs violate norms and standards ofinternational law, which Sri Lanka is obliged to ad-here to as a matter of treaty and customary interna-tional law. Fundamental right petitions to the Su-preme Court pursuant to Article 126 of the constitu-tion and habeas corpus petitions to the Court of Ap-peal pursuant to Article 141 do not provide adequatesafeguards to prevent the violation of human rightsand are in many cases impossible to exercise sincepotential petitioners lack access to the court becauseof the situation in the north and east or because it ishindered by the security forces.136 Although the Su-preme Court has awarded substantial damages incases of torture in recent years, one of its judgescomplained in late 1996 that torture continued una-bated.137 Moreover, impunity for members of the se-curity forces remains a serious problem despite somehigh profile cases which have however not yet re-sulted in consistent prosecution and punishment ofthe perpetrators of human rights violations.138

It remains to be seen how effective the recently es-tablished permanent Human Rights Commission ofSri Lanka will be in fulfilling its mandate. The five-member body is empowered to monitor governmenthuman rights practices, to ensure compliance withconstitutional fundamental human rights provisions,to investigate complaints of human rights abuse andto provide safeguards for persons detained under thePTA and ERs.139 Its prospects of preventing humanrights abuses appear to be limited as long as dis-criminatory laws are in force that violate fundamen-tal rights granted in Sri Lanka’s constitution andunder international law, and as long as the securityforces do not adhere to existing laws. Appointmentsto the Human Rights Commission have been criti-cised as being political in nature. None from the hu-man rights bodies with decades of experience havebeen appointed as a member of the Commission.

n The process of dehumanisation

Dehumanisation, i.e. the denial of human status andindividuality, may occur in a variety of ways but isusually based on an ideology that claims the superi-ority of one group or culture over the other andpresents the other group as a threat to the justified

�if there is discrimination in thisland which is not their (Tamil)land, then why try to stay here.Why not go back home (India)where there would be no dis-crimination. There are yourkovils and Gods. There you aremasters of your own fate... If thesleeping Sinhalese wake up tosee the Tamils trying to establisha Tamil Eelam in Sri Lanka, thenthings may not be quite calm. Itwould be advisable for the Tamilsnot to disturb the sleepingSinhala brother. Everybodyknows that lions when disturbedare not peaceful.�

W J M Lokubandara, M P in Sri Lanka’s Parlia-ment, July 1981.

well-being of its own group.

In the Sri Lankan context, this kind of ideology isoften referred to as Sinhalese-Buddhist racism. It issaid to be the racism of an elite, not of the Sinhalesepeople as such.140 It has been suggested that the par-ticular racism against the Tamils was a key featurein the process of “nation-building” after independ-ence.141 Its function was, inter alia, to preserve theexisting power of the elite by driving a wedge be-tween Sinhalese and Tamil people in order to de-flect political opposition. The political elite joinedforces with various emerging sections of theSinhalese society, in particular sections of the Bud-dhist clergy that were vociferous and ideologicallyviolently anti-Tamil.142

This feature, a Sinhalese Buddhist racism, fosteredby sections of the Buddhist clergy and, albeit in somecases reluctantly, supported by successive govern-ments, has overshadowed Sri Lanka’s political de-velopment. It is based on the myth that: a) theSinhalese were the first to populate Sri Lanka andTamils were invaders bent on destroying Sinhalese


80 see K. Jayawardena: Ethnic and Class Conflicts, p.9881 see ibid., pp.87-95 and K.N.O.Dharmadasa: Language, Religion and Ethnic Assertiveness, p.31582 see PRIO: Towards a Multi-Ethnic Society, p.4783 see K.M de Silva: History of Sri Lanka, pp.501,514,51584 see S.Ponnnambalam: Tamil Liberation Struggle, pp125,12685 see P.Hyndman: A study in microcosm, p.28386 see N.Sanmugathasan: Sri Lanka: The story of the holocaust, p.79 and K.N.O. Dharmadasa: Language, Religion and Ethnic Assertiveness, pp.314-31687 see M.Vije: Colonisation, pp.8,1688 see M.Vije: Oppression of Tamils, pp.61-6389 see T.Thavasilingham: Religious and Cultural changes in Ceylon,Unpublished seminar paper, 1991, pp.9,1090 see Victims of War in Sri Lanka, p.xx

culture, b) the Sinhalese are the guardians of Bud-dhism which is threatened by Hindu encroachment,c) the Sinhalese are a minority in their own countrybecause of South India which is referred to as thereal homeland of the Tamil people whereas theSinhalese have nowhere else to go to and d) theSinhalese were seriously disadvantaged by colonialpolicies which unduly favoured Tamil people.143

None of these arguments survives a critical scrutinyof its merits.144 Nevertheless, they have repeatedlybeen brought forward in various contexts in orderto justify discriminatory and repressive policiesagainst Tamils. The main thrust of these utteranceshas been to present Tamil people as such as a threatto Sinhalese land, i.e. destroying the unity of thecountry, and culture, i.e. being Hindu and thus anti-Buddhist, to deny the Tamil people’s right to live inSri Lanka by declaring India as their true homelandand to deny them equality of treatment with refer-ence to their allegedly advantageous status.

Who are the Tamils according to this picture? Alieninvaders, eager to join forces with South India todestroy the Sinhalese nation and culture, and, whileliving in Ceylon, being opportunistic and coopera-

�Look at the Administrative Reportof the General Manager of Rail-ways... Tamils, cochins andHambankarayas (Muslims) areemployed in large numbers to theprejudice of the people of thisisland... sons of the soil, whocontribute the largest share.�

Anagarika Dharmapala, Buddhist monk, 1892


tive with the colonialists in order to obtain unde-served advantages at the expense of the Sinhalesepeople.145 Recalling that dehumanisation is under-stood to be the denial of human status and individu-ality as well as processes by which the usual moralinstitutions against violence become weakened, itis apparent that Tamil people are according to thisideology not viewed as equal citizens of Sri Lankabut are portrayed as a dangerous element within it.As if it was a self-fulfilling prophecy, the Tamil Ti-gers have eventually come to embody this very im-age of the Tamils. Ironically, this was in response topolicies that were implementing demands of radicalSinhalese Buddhists and politicians but only helpedto confirm Sinhalese prejudices. The seeds of po-larisation, of a division of Sri Lanka along ethniclines in favour of the majority, have finally materi-alised and are crucial in understanding the underly-ing ideological driving force behind Sinhalese poli-cies and their nature of being potentially genocidal.

91 see Amnesty International: Wavering Commitment, p.992 see M.Vije: Oppression of Tamils, p.6093 see E.Meyer: Representations of the Past and of Space as Obstacles To Peace in Sri Lanka in:P.Schalk: Lanka 5, Uppsala, 1990 p.306, N. Sanmugathasan: Sri Lanka: The story of the holocaust, p.73 and M.Vije: Colonisation, pp.7,894 see ibid.,p.18395 see E.Nissan: A Bitter Harvest, p.1696 see S.Ponnambalam: Tamil Liberation Struggle, p.14297 see M Vasantharajah, Former Director General, Rupavahini Corporation98 see ibid., p.2599 see K.Kanapathipillai: Education in the Eastern Region, Conference paper,Tamil Information Centre, 1991, 3-6, and H.P.Chattopadhyaya: Ethnic Unrest,p.23100 see S.Bastian: University Admission and the National Question in:SSA: Ethnicity and Social Change in Sri Lanka, pp.229,230101 see K.M.de Silva: Managing Ethnic Tension, pp.306-311102 C.R.de Silva: Weightage in University Admissions: Standardisation and District Quotas in Sri Lanka 1970-1975 in: Modern Ceylon Studies, Volume 5:2, July 1974,p.166103 see U.S. Committee for Refugees: Conflict and Displacement in Sri Lanka, p.16 and Sri Lanka Monitor No.108, January 1997, p.2104 see P.Hyndman: A study in microcosm,p.281105 see T.Valluvan: Ethnic Conflict, p.12106 see E.Nissan: A Bitter Harvest, p.24, see W.A.Warnapala: Ethnic Strife, p,187 on the repercussions for ethnic conflict107 see E.Nissan: A Bitter Harvest, p.24.108 see ibid.,p.22109 T.Valluvan: Ethnic Conflict, p.14, L.Piyadasa: The Holocaust, pp.80-82110 see M.Vije: Economic Blockade, pp.13,14111 E.Nissan: A Bitter Harvest, p.22112 see M.Vije: Economic Blockade, p.20, see also concerning Jaffna: U.S.Committee for Refugees: Conflict and Displacement in Sri Lanka, p.16113 see S.Balakrishnan: Health Status among the Hill Country Tamils in: Victims of War in Sri Lanka, pp.132-134114 see Victims of War in Sri Lanka, p.xx115 see Sri Lanka Monitor, No.110, March 1997, p.2116 E.Nissan: A Bitter Harvest,p.26117 see U.S.Committee for Refugees: Conflict and Displacement in Sri Lanka, p.15118 see M.Vije: Economic Blockade,p.11119 Human Rights Watch: Annual Report 1997, p.184120 see Amnesty International: Wavering Commitment,p.9121 see P.Sieghart: Tragedy of Errors, p.54122 see B.Cashman, J.Laffon, Ved.P.Nanda: Human Rights Crisis, pp.356,359,366,367123 see L.Kuper: Prevention of Genocide, p.221124 see V.A.Leary: Ethnic Conflict, pp.44-50125 see ibid, pp.,47,48126 S.S.Misra : Ethnic Conflict,p.73127 P.Hyndman: Human Rights in Sri Lanka, pp.346,347128 see ibid., p.347129 Amnesty International: Wavering Commitment, p.13130 see Amnesty International: New emergency regulations, January 1994, p.6131 see Amnesty International: Wavering Commitment, p.13132 see U.S. State Department: Country Report 1996, Section 1 d133 ibid.,introduction134 see Report on the visit to Sri Lanka by three members of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1993/25/Add.1, para 139 and Amnesty International: New Emergency Legislation, pp.1,2135 Consideration of Sri Lanka’s third periodic report submitted under Article 40 of the ICCPR, 27 July 1995, CCPR/C/79/Add.56, para. 10136 see ibid., para 17 and Amnesty International: Sri Lanka: Security measures violate human rights, July 1995, p.20137 see TIC News Bulletin, June-September 1996, p.1138 see Report of the UN Working Group on Enforced or Involuntary Disappearances, E/CN.4/ 1997/34, para. 323 and U.S. State Department: Country Report 1996, introduction139 see ibid., Section 4, and Amnesty International: Sri Lanka: The Human Rigths Commission Bill, December 1995140 see K.Sivathamby: The Sri Lankan-Tamil Question Socio-Economic and Ideological Issues in: Bulletin of Peace Proposals, International Peace Research Institute, Oslo,Vol.18, No.4, 1987, pp.632,633 and A.J.Wilson: Break-Up of Sri Lanka, p.224141 see PRIO: Towards a Multi-Ethnic Society, pp.39,40 and K.Jayawardena: Ethnic and Class Conflicts, pp.71-76142 see U.Phadnis: Role of State in Ethnic Conflict in Sri Lanka in: P.Schalk: Lanka 5, Uppsala, 1990, p.253 and B.Cashman, J.Laffon and Ved P.Nanda: Human Rights Crisis, p.364,365143 see K.Jayawardena: Ethnic and Class Conflicts, pp.9-14144 see L.Piyadasa: The Holocaust, pp.73-77, A.J.Wilson: Break-Up of Sri Lanka, p.223 and S.Ponnambalam: Tamil Liberation Struggle, pp.139-142145 see comment by Ven.Maduluwave Sobitha Thera, a political monk, interviewed in the Sunday Observer, 20 April 1997: “ Every non-Sinhala group who now fights for its rights is an alien body and at different stages they were either invaders, traders or sly-comers.” quoted in: Hot Spring, April 1997, p.2


Conclusion: genocidal process


n Sri Lanka, the Sinhalese majority has, driven by the dominantsection of its elites and successive governments imposed its na-tional pattern on the Tamil minority. This has been effected through

a largely synchronised policy of affirmative action for the Sinhalesemajority in order to redress alleged historical imbalances, alleged un-due Tamil advantages in education and employment, and to help therural and disadvantaged Sinhalese masses. This policy has been markedby its incorporation of features of an aggressive Sinhala-only ideologythat has characterised Tamils as alien invaders or dangerous elements,which threaten the life of the Sinhalese nation.

Consequently, the Tamilshave been denied politi-cal self-determination;their traditional territoryhas been colonised bySinhalese settlers undergovernment colonisationschemes; their languageand religion have been dis-criminated against andreligious buildingshave been destroyed aswell as religious serv-ices disrupted and reli-gious leaders and devo-tees killed; their culturallife has been severely dis-rupted by prohibitions andviolent disturbances of cultural activities; their right to equal educationhas been denied by means of discrimination based on neglect or poli-cies favouring Sinhalese people; their employment and economic de-velopment has suffered from discrimination, shutting off from the na-tion’s economy and a shift of the wealth to Sinhalese people; their healthhas deteriorated due to neglect, the economic blockade and continuingattacks on Tamil civilians; their social life has been disrupted throughlacking freedom of expression and isolation from the outside world;and their fundamental rights have been denied by discriminatory laws.

This denial of self-determination and equality in treatment violates fun-damental rights granted to the Tamils under the 1978 constitution of SriLanka as well as several of the obligations under international law, mostnotably Article 1 of both the ICCPR and the International Covenant onEconomic, Social, and Cultural Rights, Article 27 of the ICCPR, andseveral articles providing for fundamental rights under both Covenants

I

and under the Convention on theElimination of All Forms of Ra-cial Discrimination.

The joint denial of basic rightsand human status has resulted inthe oppression of the Tamilswhich has turned Sri Lanka intoa society characterised by deepand pervasive cleavages be-tween Sinhalese and Tamils.These developments have all thefeatures of what has been calledthe genocidal process, thus serv-ing as a precondition for acts ofgenocide in Sri Lanka.

Women protest

The evidence

t least 30,000 Tamil civilians have been killedand many more injured since 1956 by Sinhalese

mobs and by members of the various securityforces.146 The killings have taken place in the formof massacres, arbitrary and extrajudicial killing aswell as “disappearances.” Since the beginning of thewar, the nature and extent of the killings and actscausing harm, such as torture, rape and prolongedincommunicado detention, have changed dramati-cally, so that the pre-war period and the war period(1983-1997) will be examined separately.

1956-1983

On 5 June 1956, over 150 people were estimatedto have been killed in Colombo and in Gal Oyaand Amparai, which were regions in the Eastunder a new irrigation and resettlementscheme.147 They were attacked by members ofthe Eksath Bhikkhu Peramuna (a Buddhistgroup) and supporters of Sinhala-only after 300Tamils had staged a satyagraha (peaceful pro-test) against the introduction of the Sinhala-onlyBill in Parliament. The violence spread through-out Colombo and the East without the Policeinterfering, explaining that they had been orderednot to do so.148

On 23rd May 1958, the second riot resulted inan estimated death toll of 1,000 Tamil people.149

The acts of violence were committed bySinhalese mobs and were particularly severe inColombo, Batticaloa, Polonnaruwa, Badulla,Kurunegala, Panadura, Galle and Matara. Theywere sparked off by a radio announcement dur-ing heightened tension that a Sinhalese had beenkilled by Tamils, and attacks on members of theTamil Federal Party who were planning to stagea satyagraha against the abandoning of theBandaranaike-Chelvanayakam Pact.150

The rioting, which took the form of stoppingtrains and buses and killing and injuring Tamilpassengers, burning Tamil houses with peopleinside, raping of Tamil women and looting ofTamil property, went on for four days without

Acts of genocide

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"On the night of May 25, oneof the most heinous crimes inthe history of Ceylon was car-ried out...The Tamil labourersin the Polonnaruwa sugarcane plantation fled whenthey saw the enemy approach-ing and hid in sugar canebushes...The goondas wastedno time. They set the sugarcane alight and flushed outthe Tamils. As they came outscreaming, men, women andchildren were cut down withhome-made swords, grass-cutting knives and katties, orpulped under heavy clubs.

�At the Government farm atHingurakgoda, too, the Tamilswere slaughtered that night.One woman in sheer terrorembraced her two childrenand jumped into a well. Therioters were enjoying them-selves thoroughly. They rippedopen the belly of a womaneight months pregnant, andleft her to bleed to death.

�....A gang of goondas rushedinto the Hindu temple andattempted to set fire to it. Intheir frenzy, they were clumsyand failed to get the fire go-ing. But they had a more in-teresting idea. They pulled anofficiating priest out of thekovil and burnt him to a cin-der...�

Tarzie Vittachi in Emergency '58: The Story of theCeylon Race Riots, London 1958


the police interfering or the then Prime MinisterS.W.R.D. Bandaranaike declaring a state ofemergency. On 27th May, a state of emergencywas proclaimed and the army called in to re-store order; a task that included arresting anddetaining about 150 Tamils, including the 10MPs of the Federal Party.151

In April 1961, at least one man was killed andnumerous Tamils injured when governmenttroops dispersed a non-violent protest and firedon a crowd in Jaffna.152 These incidents occurredduring a state of emergency throughout SriLanka, which the government of Mrs. SrimavoBandaranaike had declared in March and Aprilin response to a Tamil civil disobedience cam-paign launched by the Tamil Federal Party. Thiscampaign was directed against the Sinhala-onlypolicy and called upon Tamil government em-ployees and other Tamils not to study Sinhala,not to transact any business in Sinhala and tocorrespond with the government only in Tamil.In February and March, thousands of Tamilsstaged a satyagraha and blocked access to thedistrict administrative headquarters in Jaffna,Vavuniya, Trincomalee and Batticaloa. The gov-ernment responded by imposing a press censor-ship, cutting off food supplies and communica-tion links from Jaffna to the rest of the islandand a 48-hour curfew in the Northern provinceon April 18. Sinhalese troops were for the firsttime moved to Jaffna to break up the resistance.Mrs. Bandaranaike stated in April that the Fed-eral Party had by its actions made it abundantlyclear that the real objective was to establish aseparate state and that the government was inthe face of continuing Tamil protest left with noother alternative but to use forces at its com-mand to establish law and order. Consequently,

the army broke up the satyagraha by means offorce and arrested 68 Tamils, mainly Tamil poli-ticians, among them 15 MPs.153

On 10th January 1974, nine Tamils were killedat the fourth International Tamil Research Con-ference in Jaffna when police raided the Confer-ence and attacked participants. (s.above). Noofficial inquiry into the incident was con-ducted.154

Between 13th August 1977 and 15th Septem-ber 1977, primarily during the first two weeks,hundreds of Tamils were killed in the course ofriots throughout the island.155 The violence oc-curred one month after the UNP government hadtaken office and amid growing demands of Tamilrepresentatives for self-determination. (seeTULF declaration in 1976). Sinhalese mobs wenton the rampage, killing Tamil men, women andchildren, burning houses and looting property.156

The Hill Country Tamils on the plantation es-tates were also targeted and attacked.157 TheSansoni Commission which was set up on 9thNovember 1977 to investigate the violence, itsorigin and handling, found in its report that thepolice had in a number of cases assaulted Tamilsand had been present when Sinhalese law break-ers attacked Tamils without making an effort tointervene.158 No action was taken against the cul-prits and instead, in 1982, the UNP governmentof Jayewardene passed the Indemnity Act No.20:“with a view to restrict legal proceedingsagainst Ministers, Deputy Ministers, or anyperson holding office in the government in anycapacity, whether naval, military, police or civil,in respect of acts done during the period 1st

Attack on railways

Attack on public transport


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August, 1977 to 31st August, 1977.”

On 1st August 1979, the Civil Rights Movementof Sri Lanka stated that it “is gravely concernedat the allegations that several persons have diedafter being taken into custody by the police af-ter the declaration of emergency in the Northlast month.” Allegations of the killing and tor-ture of Tamil youth by police and armed forcesduring the 1979 emergency were widespread.159

Amnesty International reported the systematicuse of torture in the years 1980-1982 by the se-curity forces in the north to extract informationor confessions.160

From 31st May 1981 to 4th of June 1981 atleast 7 Tamils were killed by the Sinhalese armyand police when they went on a rampage duringthe violent election campaign for the District De-velopment Councils in Jaffna.161 Moreover, theTamil MP for Jaffna escaped an attempted mur-der when his house was burnt by the securityforces. Two government ministers were in Jaffnaat the period in question and one of them statedin parliament: “The atmosphere was one of ter-ror; the police were not easily confined to thebarracks, and I think many of us who were therewere concerned with the situation”. 162 However,although declaring a state of emergency and ap-pointing a Commission of Inquiry to investigatethe events, the government took no action to bringthe perpetrators to justice.

On 10th August 1981, violence started in theeastern province, in and around areas recentlycolonised by Sinhalese, and spread to other ar-eas, in particular Negombo, Ratnapura and theplantation towns in central Sri Lanka, resultingin the killing of at least 25 Tamils.163 The at-

tacks, consisting in assaulting, burning, rapingand looting, were carried out by organised gangswho were assisted by the security forces.164 Ajoint statement issued by the Movement for In-ter-Racial Justice and Equality (MIRJE), signedby opposition parties, trade unions and civilrights organisations, stated: “There is good rea-son to suspect that persons in powerful posi-tions have been behind the instigation, organi-sation and planning of this campaign of vio-lence.” 165 On 14th August 1981, PresidentJayewardene admitted that the violence in theRatnapura area had been an organised one andlater sacked the local MP of Ratnapura, a deputyminister. No further action was taken.

On 3rd June 1983, 19 Tamils were killed inTrincomalee when Sinhalese gangs went on arampage amid increasing tension between thearmy and the Tamil Tigers in the area. On thesame day, the government imposed a new shoot-to-kill emergency regulation after a Jaffna mag-istrate had returned a verdict of homicide on theviolent killings of several Tamil youths by thearmy in early 1981.166

On 23rd July, over 30 Tamils were killed inJaffna and Manipay after the army shot them atrandom.167 These killings were in retaliation foran ambush on an army truck which had killed13 soldiers the previous day and was itself inretaliation for the rape of three Tamil girls bythe army, one of whom later committed suicide.

On 24th July, the worst ever anti-Tamil riotsstarted during the course of which more thanthousand Tamils were killed.168 The rioting con-

Attack on market places

Attack on cinemas and leisure centres


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tinued for several days, mainly in Colombo, andwas marked by atrocities committed on anybodywho was identified as a Tamil on an unprec-edented scale, such as burning people alive, hack-ing them to death, gang-raping and killingwomen, burning and looting houses, shops andcompany premises.169 All this was allegedly donein retaliation for the attack on the soldiers theprevious day. These acts were perpetrated bySinhalese gangs which were transported fromoutside the districts, as well as by security forceswho either stood by or participated in the at-tacks. The attacks were systematic and directedonly against Tamil people and their posses-sions.170 Electoral lists, business registrations andownership registrations had been checked andthe thugs carried lists with them on their ram-page.171 It is thus widely believed that govern-ment officials were involved in the planning andexecution of the attacks.172 Despite repeated callsby Amnesty International, the International Com-mission of Jurists and by the Civil Rights Move-ment of Sri Lanka, neither a public, independ-ent, impartial enquiry into the incidents, in par-ticular concerning government involvement andparticipation of security forces in the killings wascarried out nor the perpetrators punished underthe criminal law.173

On 25th July, 35 Tamil political prisoners weremurdered in Welikade prison, a maximum-se-curity prison in Colombo.174 They were alleg-edly murdered by Sinhalese prisoners only whowere armed with clubs, iron rods and other weap-ons although eye-witnesses stated that prisonwarders opened the doors and took active partin the attacks.175

On 27th July, another 18 Tamil political prison-ers were murdered in the same prison under simi-lar circumstances. A magisterial enquiry wasconducted immediately after the massacres andreturned a verdict of homicide. However, no per-son responsible for the killings was identifiedand the case was closed without any chargesbrought after inconclusive police inquiries.176

The government rejected demands by interna-tional human rights organisations to hold inde-pendent, judicial investigations into the prisonmassacres.177 This was a case where there is ap-parent suspicion that such an incident could nothave taken place in a top-security prison with-out the complicity of government officials.

1984-1997:

This period has been marked by intense warfare be-tween government forces and the LTTE, only inter-rupted by intermittent cease-fires, which has resultedin many thousands, combatants and civilians, beingkilled. This study does not provide a detailed accountof all possible acts of genocide, but highlights somewidely reported incidents of deliberate killings, tor-ture, rape and arbitrary, prolonged and incommuni-cado detention of Tamil civilians by several govern-ment agencies with a view to determine whether theseacts are part of a systematic government policy.

The security forces consist of the police force re-sponsible for internal security, the army, navy andair force, and the police paramilitary Special TaskForce (STF), of which the latter two primarily con-duct the war against the LTTE. Various Tamil groupsopposed to the LTTE, in particular the People’s Lib-eration Organisation of Tamil Eelam (PLOTE) and

Killing of farm animals

"Since June there have beenseveral waves of such arrestssforming part of a pattern ofhuman rights violations di-rected at the Tamil commu-nity, in which thousands ofpeople appear to have beenarrested solely on the basis oftheir ethnic origin"

Amnesty International, 27 October1993, AI Index:ASA 37/WU 04/93


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Tamil Eelam Liberation Organisation (TELO), havebeen armed by the government and act largely underits authority.178 Sinhalese and Muslim Home Guardshave been armed by the government and operate inthe North and East, predominantly in areas that havebeen colonised.

1984-1987: Thousands of Tamil civilians, in par-ticular young males, but also women and chil-dren, were killed by various government forcesduring this period. The killings took the form ofextrajudicial executions, arbitrary killings inform of massacres and disappearances. AmnestyInternational accounted for approximately 700unresolved cases of disappearance between 1984and 1987.179 Arbitrary arrest, prolonged incom-municado detention and torture of Tamils hasbeen systematic and widespread, in particularby the army, acting under the shield of the Pre-vention of Terrorism Act and various EmergencyRegulations. Rape has been part of the torturepractice, but also occurred in numerous cases inthe course of village raids and army massacres.The violation of fundamental rights has resultedin a considerable number of displaced persons,primarily within Sri Lanka. The government hasthroughout this period backed atrocities com-mitted by the security forces by means of out-right denial or failure to prosecute and punishthe perpetrators.

1984: More than 400 Tamil civilians were arbi-trarily killed or extrajudicially executed by mem-bers of the security forces.180 Throughout Au-gust, several people were killed and injured whenthe Sri Lankan navy was shelling coastal townsin Polikandy, Point Pedro and Valvettiturai inthe Jaffna peninsula; attacks which also wipedout whole settlements and left thousands of Tamil

Burning of crops

Indiscriminate killings

refugees.181 On 11 August, 16 Tamils were killedwhen six men wearing khaki trousers armed withsub-machine guns stopped a private coach onthe route between Colombo and Jaffna, andcalled out all male passengers, lining them upand shooting them on the spot.182 On 2nd De-cember, members of the security forces randomlykilled at least 27 Tamils in the area ofCheddikulam and Chemamadu in the Vanni areain retaliation for massacres committed by TamilTigers on Kent and Dollar Farms. Moreover,around 100 Tamils were arrested in the nearbyvillages and were reported to have been killed inIratperiyakulam Army Camp near Vavuniya.The government did not conduct an inquiry intothe alleged incident and denied the charges out-right.183 Two days later, the army launched amass attack on civilians in Mannar in the North-west coast, killing an estimated 90 Tamils184.During the whole year, 10,600 Tamils were takeninto custody. Widespread torture was used bythe army and the Special Task Force resultingin several deaths in custody.185

1985: Four hundred and twelve Tamil civilianswere killed by security forces, according tosworn statements by individuals received byAmnesty International.186 The total number ofextrajudicial killings and disappearances was es-timated to be over 3,000.187 On 9th May, 75Tamil civilians were shot and blown up with ex-plosives after being herded into a building bysoldiers in and around the Jaffna coastal townof Valvettiturai, apparently in retaliation for thealleged killing of an Army Major by Tamil guer-rillas. On 15th May, 48 Tamil passengers on aferry boat off the western coast of Jaffna penin-sula were killed by Navy personnel, beingstabbed one by one.188 On 17th May, an esti-


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mated 60 young Tamils were killed inThambiluvil by members of the Special TaskForce in reprisal for a previous Tamil guerrillaattack on Sinhalese civilians.189 The governmentdenied this incident and brought charges againstthe chairman of the Kalmunai Citizen’s Com-mittee, who had taken the complaint to the localpolice, alleging he spread false rumours. He wasacquitted of all charges by the High Court ofColombo in July 1986 but government officialsrepeatedly denied that the incident had takenplace despite contrary evidence and the lack ofindependent and thorough investigation.190 On31 May, 37 young Tamil men were taken intocustody and shot dead after security forces wenton a rampage in Thanganagar, Kiliveddy inTrincomalee in the course of which they lootedand set fire to all the properties.191 On 16th Au-gust, an estimated 200 Tamil people were killedwhen the Army went on the rampage inVavuniya, looting and shooting indiscrimi-nately.192 On 18 September, 46 Tamil refugeeswere killed in an operation by the security forcesin which 12 armoured vehicles, 6 tanks, 2 heli-copters and gunboats took part, allegedly aimedagainst Tamil guerrillas.193 Large-scale arrestsresulting in 1,200 Tamils being detained at theend of the year and torture of Tamils continuedto be routine.194 Several cases of rape were re-ported, such as the rape of 4 Tamil women bythe army on 5th December, and the rape andsubsequent murder of two Tamil women on 25thDecember by Home Guards.195

1986: Over 500 Tamil civilians were killed in anumber of incidents by members of various se-curity forces, including the Home Guards.196 Theincidents included attacks on Tamil refugees andTamil travellers as well as several massacres.

Massacre of families

Attack on places of worship

On 19th January, 24 Tamil civilians wereshot during a search operation by members ofthe Special Task Force in Iruthayapuram. TwelveTamil civilians were shot dead and several oth-ers injured as soldiers indiscriminately fired atan estimated 75 passengers waiting to board atrain at the Kilinochchi railway station in NorthSri Lanka. On 19th February, 60 Tamil farmworkers were deliberately shot by members ofthe police, the army and the Home Guards whosubsequently looted premises in a nearby vil-lage in the eastern Amparai District. The gov-ernment claimed that all the dead were terroristsand a Committee of Inquiry conducted an un-published investigation.

On 20 March, 16 Tamil villagers were killedwhen troops carried out a cordon and searchoperation at Nedunkerny in the course of whichthey burnt houses looted shops and shot at peo-ple indiscriminately.197 On 17th May, 28 youngmen were taken into custody and there was evi-dence, though denied by the government, thatthe Special Task Force shot and killed them.198

On 13 July, 50 Tamil civilians and on 16 July,44 Tamil refugees were killed as the army andsecurity forces respectively shot them duringoperations.199 In October and November, severalmilitary operations against Tamil civilians werecarried out. On 11 November, at least 20 peoplewere killed and a further 21 had gone missingwhen security forces went on a rampage in avillage in the Eastern Batticaloa District, dur-ing the course of which three Tamil women wereraped and killed.200 More than 2,500 Tamilswere held in detention and reports of torture werewidespread.201


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prolonged incommunicado detention and sub-jected to torture. Numerous cases of rape werereported, among them gang rape by groups ofsoldiers. The constant deterioration of the situa-tion in terms of personal safety, compounded bythe hardship caused by the economic blockadeimposed in 1991, resulted in great numbers ofdisplaced persons, fleeing within the region orabroad. Although two independent Commissionsof Inquiry, one investigating an army massacreof June 1991 and the other investigating disap-pearances after the date of its creation, were es-tablished, no prosecutions resulting in convic-tions concerning these or other cases were car-ried out.

1990: More than 5,000 Tamil people were esti-mated to have been killed or to have disappearedin the second half of the year. Victims of extra-judicial executions have reportedly been shot,bayoneted, stabbed, hacked or beaten to deathand even burnt alive.206 The killings occurredby attacks on the ground as well as from the air.In June alone, hundreds of civilians were shotor stabbed to death by army or police personnelin several incidents, particularly in the Batticaloadistrict, and 165 civilians were killed in the sec-ond half of June as a result of indiscriminate airbombardment and shelling on residential andnon-military targets, such as refugee camps,hospitals and schools.207 On 9 October, 12 civil-ians were killed at the Jaffna market when heli-copters fired at them.208 Disappearances oc-curred on a massive scale. On 2 August 1990,150 men were taken from the Pottuvil refugeecamp, only 30 of whom were subsequently re-leased. Although the police and the Special Task

On January 28, 1987, over 150 Tamil civilianswere killed at Kokkaddichcholai during a mili-tary operation by members of the Special TaskForce who attacked with helicopter gunships andarmoured cars.202 Charges of systematic killingof young male Tamils by the security forces werealso made in connection with the offensive inVadamaratchi in the Jaffna Peninsula in Mayand June 1987, which also resulted in massivehuman suffering and a refugee crisis.203

1987-1990: The Indian Peace Keeping Force(IPKF) took control of the North and East un-der the Indo-Sri Lanka agreement, lasting fromAugust 1987 until March 1990. The IPKF andthe LTTE were held responsible for serious hu-man rights violations in this period althoughsome cases of disappearances in army custodyin the Northeast were also reported.204 Duringthese years, the security forces were engaged inputting down the Sinhalese-based JanathaVimukthi Peramuna (People’s Liberation Front)insurgency, resulting in an estimated 20-60,000Sinhalese killed or disappeared in the south be-tween 1987 and 1990.205

1990-1994: Several thousand Tamils, predomi-nantly civilians, were killed after the resump-tion of the conflict in the north and east in June1990. Huge numbers of disappearances, exceed-ing 10,000 cases, were reported and evidencedby burned and mutilated bodies dumped in riv-ers or lakes or disposed of otherwise. Extrajudi-cial executions and arbitrary killings as well asdeaths resulting from systematic torture occurredon a large scale and formed an integral part ofthe anti-insurgency operations of the securityforces. A large number of Tamils, particularlyyoung males, were arbitrarily arrested, held in

Makeshift shelters for displaced people

Destruction of towns and villages


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Force denied the detention, a local person sawsmoke rising from the police station, fuelling thesuspicion that the prisoners might have beenkilled and burned. In another incident, 158Tamils were taken into custody by security forcesfrom the Vantharumoolai refugee camp in theBatticaloa district on 5 September, and sincedisappeared. Despite contrary evidence, the Min-istry of Defence stated on 17 October that only31 persons had been arrested and released within24 hours.209 Torture was reportedly widespreadand over a thousand Tamils were held under thePTA and ERs throughout the year.210

1991: More than a thousand Tamils were killedthroughout the year. By September 1991, sev-eral hundred cases of disappearances and extra-judicial executions had already been reported211

and the UN Working Group on Enforced or In-voluntary Disappearances reported that over1,000 cases of disappearances occurred in 1991.It also attributed a series of killings to deathsquads, which given the circumstances, couldonly have operated with the acquiescence of thegovernment forces.212 Between 13 January and4 April, at least 30 civilians were killed in Jaffnadistrict as a result of bombing raids by the SriLankan Air Force.213 On 30 March, police of-ficers went on the rampage in Iruthayapuram,burning shops and hacking to death 11 Tamilfarmers.214 On the night of 12 June, more than185 people were killed by members of the armynear Kokkaddichcholai in a deliberate retalia-tory attack during which Tamil villagers weremassacred and houses were set on fire.215 Tamilswere systematically tortured and dozens of peo-ple reportedly died as a result.216 1,080 Tamildetainees were held in the Northeast at the endof the year.217

1992: Hundreds of Tamil civilians were killedin several attacks by the army, security forces,members of TELO and Muslim Home Guards.A family of 8 Tamil villagers were killed by agroup of army personnel accompanied by mem-bers of TELO on 14 April in their home atMandur, Batticaloa.218 Thirty nine Tamils werekilled in a massacre committed by the army inApril in Mailanthanai.219 Eighty Tamil civilianswere shot and hacked to death by Muslim HomeGuards and other security force personnel on29 April in Karapola, Polonnaruwa District.220

On 31 May, 6 Tamil refugees were killed andover 125 injured, when the Sri Lankan air forcemounted an attack on the Sri Durga Devi Tem-ple in Tellippalai, Jaffna employing bomber air-craft and throwing grenades from a helicopterand barrel bombs from an airplane.221 In Octo-ber, 10 Tamil civilians were extrajudicially ex-ecuted by soldiers at Vellaveli, Batticaloa Dis-trict. Scores of disappearances in military cus-tody were reported, in particular in the BatticaloaDistrict. Over a thousand Tamils were being heldunder ERs or the PTA and routinely subjectedto torture by members of all government secu-rity forces.222 Moreover, hundreds of Tamils wereperiodically arrested and screened for connec-tions with the LTTE, resulting in the staggeringfigure of 13,414 arrests in Colombo alone.223

1993: Over 100 Tamil civilians were killed bythe security forces throughout the year.224 Scoresof civilians were killed, some apparently victimsof extrajudicial executions, as they attempted tocross the Kilali lagoon from the Jaffna penin-sula to the mainland.225 In some cases, navy per-

Destruction of bridges and roads

Burning of school buildings


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sonnel boarded boats and deliberately killed ci-vilian passengers who offered no resistance. InFebruary, 16 Tamils disappeared after beingarrested by the army at Vannathi Aru, BatticaloaDistrict. On 13th November, 10 civilians diedand about 30 were injured when two Air Forcejets bombed St James’ church in the centre ofJaffna town.226 In Colombo, 22,950 Tamils werearrested under the ERs and PTA during theyear.227 Over 2,000 Tamils were being detainedunder the ERs and the PTA, 464 of whom hadbeen held for 32 months without trial. Torturecontinued to be reported, particularly in theNortheast. 228

1994: At least 10 Tamil civilians were killed bysecurity forces in the Jaffna peninsula and atleast 10 disappeared in the east. An estimated700 detainees were being held under EmergencyRegulations or the PTA at the end of the yearafter several thousands had been releasedthroughout the second half of the year. Therewere several cases of torture of Tamils, althoughon a smaller scale than in previous years. 229 TheSri Lanka Monitor has reported 60 killings byshooting, bombing and shelling, 125 injuries,destruction of 136 houses and shops and a rape.

1995-1997: Several thousand Tamil civilianswere killed since the resumption of the war inMay 1995. Despite the stated commitment tohuman rights of the new government under Presi-dent Chandrika Bandaranaike Kumaratunga, thepattern of warfare by means of extrajudicial kill-ings, massacres and disappearances emergedagain. Tamils have been deliberately killed bygovernment forces and groups operating withits consent. In the year 1996 alone, around 650Tamils disappeared. There was a dramatic in-

crease in the use of torture and numerous casesof rape by the security forces were documentedby Amnesty International. Scores of Tamils, insome instances at least 1,000 people, have beenarbitrarily arrested and detained, in some casesfor several years, under the Prevention of Ter-rorism Act and Emergency Regulations. Thecapture of Jaffna by the army, the launching ofan intensified war campaign, and the re-imposi-tion of the economic blockade resulted in star-vation, an increase in diseases and massive dis-placement, estimates of the numbers of displacedTamil persons being as high as 825,000. De-spite several government measures to preventhuman rights violations by security forces, thetemporarily imposed censorship on events in theNorth and East, the remaining in force of thePrevention of Terrorism Act and EmergencyRegulations, the lack of adherence of membersof the security forces to national and interna-tional human rights standards, and the apparentlack of government control over sections of thearmy, security forces and other groups continueto provide a ready context for grave violationsof the fundamental rights of the Tamil people.

1995: In December, the army captured Jaffnatown. Due to press censorship, it is not knownhow many people died in the course of that mili-tary operation which had started in July. Therewere increasingly large numbers of allegationsof extrajudicial and arbitrary executions, result-ing from incidents involving aerial bombardmentby the Sri Lankan Air Force, naval strafing andshelling from military bases and indiscriminatefiring by armed forces personnel which contin-ued to cause numerous civilian casualties, in-

Mass killings

Massacre of children


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cluding the bombing of a church at Navaly on9th July, which killed 65 civilians and injuredmore than 150.230 An estimated 40 Tamil civil-ians were extrajudicially executed in the east.Fifty-five Tamils disappeared after being ar-rested by members of the security forces.231 Thebodies of at least 31 people abducted in Colombowere found in lakes and rivers in the vicinity.An official investigation of the killings found thatthe victims had been held prisoners, tortured andthen killed by strangulation or drowning.Twenty-two policemen arrested in connectionwith the murders were later granted bail and re-turned to active service.232 The case was takenoff the court roll in March 1997 encouragingimpunity. Six hundred Tamils were being de-tained at the end of the year, many of whom weresubjected to torture.233 Several cases of rape werereported throughout the year, among them thegang-rape of three women by soldiers in theBatticaloa district in January and the rape ofLakshmi Pillai at her home in Trincomalee bytwo army informants in front of her two sons.234

Moreover, Tamils complained about search op-erations and arrests in Colombo and in the HillCountry as well as about repeated harassmentand incidents of robbery by police officers.235

1996: Due to censorship of news relating to mili-tary or police operations, and lack of access tothe north and east, the exact number of personswho were killed throughout the year is impossi-ble to ascertain. On 11th February, in the larg-est deliberate attack on civilians by the army inKumarapuram, 24 Tamils, including 13 women,one of whom was also raped, and seven chil-dren, were killed and 25 wounded. A militarycourt found 14 soldiers guilty of the killings whowere subsequently charged by the Attorney Gen-

eral with murder and attempted murder. By theend of the year, they had not come to trial beforethe High Court.236 In a statement on 11 April1997, Amnesty International said that 648 peo-ple were reported to have disappeared in north-ern Sri Lanka and remarked that the fact thatsuch high number of disappearances can occurin one year despite government’s claim that it isaddressing the problem, is outrageous. In De-cember alone, more than 15 dead bodies of per-sons who had been previously arrested by thearmy were found, among them the corpses ofthree school girls still wearing their uniformsfloating in the sea.237 At the end of the year 1,500Tamils were being held in detention under theERs and PTA. In November, a Supreme Courtjudge stated publicly that torture continued una-bated in police stations in spite of a number ofjudicial pronouncements against its use. It wasused by members of all security forces and in-cluded methods such as electric shocks, beat-ings all over the body, especially the soles andgenitals, often with plastic pipes, iron rods andtruncheons, suspension by the wrists or feet incontorted positions, burning, near drowning,mainly by submersion in polluted water, plac-ing of insecticide, chilli powder, or gasoline-soaked bags over the head, and forced positions,resulting in broken bones and other serious in-juries.238 On 7th September, KrishanthyKumarasamy disappeared in Jaffna. Her bodywas later found in a shallow grave, together withthe bodies of her mother, brother and a neigh-bour who had been searching for her. She hadbeen gang-raped by nine soldiers before beingkilled after she had been detained at a check-point. The accused soldiers were brought before

Destruction of public property

Mass cremation


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146 According to Sri Lankan government estimates, 50,000 people have been killed in the course of the war since 1983, of whom over 26,000 were Tamil civilians, Sri Lankan Daily News cited in Hot Spring, April 1997, p.13; according to Victims of War in Sri Lanka, p.zz, 45, 000 Tamil civilians were killed or disappeared in the years 1983-1993147 see T.Vittachi: Emergency’58, p.20148 ibid.,p.104149 International Alert: Emergency, 1986, p.23150 S.Ponnambalam: Tamil Liberation Struggle,p113151 see T.Vittachi: Emergency’58, pp.55,75,76,90152 S.Sivanayagam: Sri Lanka: 40-Year Chronology, p.27153 see ibid.,pp.22-28 and S.Ponnambalam: Tamil Liberation Struggle, pp.121,122154 E.M.Thornton and R.Niththyananthan: Island of Terror, p.29155 see ibid., p.32156 see S.Ponnambalam: Tamil Liberation Struggle, pp194,195, see also crime figures in the Annual Report of the Inspector General of Police for the year 1977 in: International Alert: Sri Lanka, p.24157 see H.P.Chattopadjyaya: Ethnic Unrest, p.60158 see E.M.Thornton and R.Nithyananthan: Island of Terror.,p.33159 see V.A.Leary: Ethnic Conflict, p.31,160 see Amnesty International: Report of an AI Mission to Sri Lanka, 1982,p.28161 ibid.p.11 and M.Vije: Oppression of Tamils, p.78,162 Minister Gamini Dissanayake, quoted in: S. Ponnambalam: Tamil Liberation Struggle, p.207163 Brian Eads in: The Observer, 20 September 1981 quoted in S.Ponnambalam: Tamil Liberation Struggle, p.210 , see also V.A. Leary: Ethnic Conflict, p.21164 see S.Ponnambalam: Tamil Liberation Struggle, p.210165 ibid,p.209, see also international, in particular Indian’s, response to events in: V.A. Leary: Ethnic Conflict pp.1-25166 ibid., p.224167 Amnesty International: Annual Report 1984, p.258168 see S.J.Tambiah: Ethnic Fratricide, p.22,169 see E.M.Thornton and R.Niththyananthan : Island of Terror, pp.63-77170 P.Hyndman: Human Rights in Sri Lanka, p.338171 S.J.Tambiah: Ethnic Fratricide, p.21172 see L.Piyadasa: The Holocaust,p.84, and W.A.Warnapala: Ethnic Strife, p.166173 see P.Hyndman: Human Rights in Sri Lanka, pp.339,340174 see M.Vije: Oppression of Tamils,p.79175 see E.M.Thornton and R.Niththyananthan: Island of Terror pp 65,66176 see P.Hyndman: Human Rights in Sri Lanka, p.339177 see Amnesty International: Annual Report 1984, p.259178 US State Department: Country Report 1996, introduction179 see Amnesty International: Annual Report 1995,p.268180 see P.Rajanayagam: Human Rights Violations, pp.8-18181 see ibid. pp.10,11182 ibid. pp.13183 Asia Watch: Cycles of Violence, p.112-115184 Amnesty International: Annual Report 1985,p.243185 see ibid.

the magistrate’s court in Colombo and chargedwith rape and murder. In November, five policeand army personnel were arrested for the rapeand murder of Rajini Velayuthapillai in Jaffna.239

Continuing harassment of women, includingabduction and rape, at army checkpoints, in par-ticular in the Jaffna district, were reported.240

One hundred and fifty cases of rape committedby soldiers have been documented in 1996alone.241

1997: In the first half of the year, extrajudicialexecutions, arbitrary killings and disappearancescontinued to occur on a large scale. At least 16Tamil civilians were killed by army or navy per-sonnel in various incidents in the Jaffna penin-sula between January and May.242 In March

alone, 10 Tamils were killed in the army-con-trolled towns of Vavuniya and Batticaloa bydeath squads.243 Tamil Congress leader KumarPonnambalam stated before the UN HumanRights Commission in March that there was to-tal disregard of the principles relating to arrestand detention in Sri Lanka, that Tamils weretortured and confessions manufactured, and thatthere has been a startling increase in gang-rape,involuntary disappearances in the Northeast andin Colombo and in cases of extrajudicial execu-tions. Moreover, 1,700 Tamil youth were heldin detention in March.244 Gang rape has beencommitted in several cases, the worst of whichresulted in the death of Amparai resident Muru-gesapillai Koneswari who was allegedly killedby a grenade inserted into her vagina.245


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186 see Amnesty International: Sri Lanka: Some Recent Reports of Extrajudicial Killings, 1986, p.3187 see P. Rajanayagam: Human Rights Violations, p.31188 see Amnesty International: Annual Report 1985, p.258189 Asia Watch: Cycles of Violence, p.116190 ibid.pp.117-119191 see P.Rajanayagam: Human Rights Violations, p.24192 ibid., pp.24,25193 ibid., p.25194 see Amnesty International: Annual Report 1986, pp.257,259195 see P.Rajanayayam: Human Rights Violations pp.24-27196 see ibid. pp.31,46197 ibid. pp.32-36198 see Amnesty International: Annual Report 1987, p.266199 see P.Rajanayagam: Human Rights Violations, pp.41,42200 ibid.,pp.43,44201 see Amnesty International: Annual Report 1987, p.268202 Amnesty International: Annual Report 1988, p.182203 see P. Rajanayagam: Human Rights Violations. p.34204 see Amnesty International: Sri Lanka: Extrajudicial Executions, Disappearances and Torture,1987-1990, September 1990205 see E.Nissan: A Bitter Harvest, p.29206 see Amnesty International:The Northeast, p.17207 see Report by Mr.S.Amos Wako, Special Rapporteur on Summary or Arbitrary Executions, E/CN.4/1991/36, para.471,472208 ibid.p.9209 see ibid., pp.23,24210 see Amnesty International: Annual Report 1991, p.211211 see Amnesty International: The Northeast, p.17212 see Report on the Visit to Sri Lanka by three members of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/ 1993/25/Add.1, pp.38,39213 see Report by Mr.S.Amos Wako, Special Rapporteur on Summary or Arbitrary Executions, E/CN.4/1992/30, para. 500214 Tim McGirk: Civil strife makes Sri Lanka a tropical hell in: The Independent, Monday 8 April 1991215 see supra 213, para.498216 see ibid., para 497 and Amnesty International: Annual Report 1992, pp.239,240217 see ibid.218 Report by Mr.Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1993/46, para.538219 Amnesty International: Annual Report 1993, p.266220 see Amnesty International: Deliberate killings of Muslim and Tamil villagers in Polonnaruwa, June 1992, pp.3-6221 see Report by Mr.Angelo Vidal d’Almeida Ribeiro, Special Rapporteur on the Elimination of Religious Intolerance, E/CN.4/1993/ 62, para.54222 see Amnesty International: Annual Report 1993, pp.266,267223 see Amnesty International: Balancing human rights & security: abuse of arrest & detention powers in Colombo, February 1994, p.6224 see Amnesty International: Summary of concerns, p.4225 see Report by Mr.Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1994/7, para.552226 Amnesty International: Summary of concerns, p.4227 Amnesty International: Balancing human rights & security, p.6228 see ibid., pp.3,4229 see Amnesty International: Annual Report 1995, pp.268,269230 see Report by Mr.Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1996/4, para.436,437231 see Amnesty International: Annual Report 1996, p.281232 see ibid.and TIC News Bulletin; June-September 1996,p.3233 see Amnesty International: Annual Report 1996, p.280234 see Amnesty International: Wavering Commitment, p.20235 see Sri Lanka Monitor: No.95, December 1995, p.4236 see U.S. State Department: Country Report 1996, Section 1 a237 see W. Keller: Zur Lage der Menschenrechte in: Suedasien Buero Nr.2/1997, p.13238 U.S. State Department: Country Report 1996, 1 c, see also: Widespread Torture by Security Forces in: TIC News Bulletin June- September 1996, pp.2,3, The Refugee Council: Protection Denied, p.18239 see U.S. State Department: Country Report 1996, Section 1 a, U.S.Committee for Refugees: Conflict and Displacement in Sri Lanka, p.12240 see ibid., p.13241 see Letter, dated May 6, 1997, by Dr.Sri M. Sri-Jayantha, General Secretary of Ilankai Tamil Sangam USA Inc. to the Editor of the New York Times reprinted in: Hot Spring, April 1997, p.38242 see University Teachers for Human Rights: Jaffna: A Vision Skewed, Special Report, No.9, 7 June 1997, pp.12-21243 Sri Lanka Monitor, No.110, March 1997, p.3244 see ibid., p.4245 Sri Lanka Monitor, No.112, May 1997, p.3


Iruthayapuram Massacre -19 January 1986

On the night of 19 January 1986 the people of Iruthayapuram in Batti caloa slept peaceful l ynot knowing that terror would ride with dawn into the village. At around 5 am Sri Lankansecuri ty forces marched into the vi l l age fi ri ng thei r guns. Young men were dragged out ofthei r beds and herded into the frontyard of the vi l l age church amidst the wai l ing of womenand chi ldren.

The Church of the Most Sacred Heart of Jesus was precious to the vi l l agers. It was bui l t bytheir endeavour after the old church was destroyed in the cyclone of 1978 and had beenconsecrated only ten months earlier. Not even in their dreams would they have imaginedthat the sacred precinct would become a torture and murder chamber.

The men were ti ed in pai rs and forced to l i e face down. The pari sh priest Rev Fr Dekoning,a member of the Burgher community, was locked in his mission house with a sentry at thedoor to prevent him coming out. The soldiers surrounded the victims and began brutallybeating and kicking them. Some of them were picked up by the legs and dashed on others.The heart rending cries for mercy of the women and chi ldren wi tnessing the torture fai ledto touch the souls of the assai lants.

While the savagery in the church continued, gruesome events were taking place in thevicini ty. Innocent people were dragged and shot dead in cold blood. The door of the churchwas forced open and the victims of torture were ordered in. Wi th broken l imbs and bleedingprofusely they staggered into the church. Inside, the soldiers saw Catechist Sahayanathanand sacristan George Anton and Gnanadas who were in charge of preparations for holymass on Sunday morning. They were ordered to run and mowed down with guns.

At 2 pm two dozen truckswere brought into thechurch compound and thosearrested and tortured wereordered to get into the vehi-cles. A man whose both legswere broken was draggedoutside and shot dead. Thetrucks moved on. The fol-lowing day members of thelocal Ci tizen Committee metthe security force Coordinat-ing Officer to request the re-lease of those arrested andthe bodies. The bodies hadbeen kept in open trucks atthe Special Task Force campat Kallady. The only con-

cern of the Coordinating Officer was that no one had come to identi fy the bodies.

The Sri Lankan national newspaper Daily News reported on 20 January 1986 that two pol-icemen and 13 terrorists died in a gun battle at Iruthayapuram in Batti caloa Distri ct.

Source: Eye Witness, Vol. 1 No 1 February 1986 - Tamil Information Centre

Eye wittness Report


The Charges

n The acts

he examined evidence has revealed numerous actsthat fall within the definition of genocide in Arti-

cle II of the Genocide Convention. Killings, whetherarbitrary, indiscriminate, extrajudicial, in the formof disappearances or as a result of torture and rapeare acts covered by Article II (a): “Killing membersof the group.”

Assaults causing injuries, torture, rape, serious har-assment and arrest and detention practices under thePTA and ERs, in particular prolonged incommuni-cado detention, fall within Article II (b): “Causingserious bodily or mental harm to members of thegroup.”

The intensified warfare and the economic blockade,having resulted in numerous casualties among theTamil people through malnutrition and spread of in-fectious diseases as well as their massive displace-ment, fall arguably under Article II (a) and definitelyunder II (b) and might amount to Article II (c): "De-liberately inflicting on the group conditions of lifecalculated to bring about its physical destruction inwhole or in part.”

The persons identified as being responsible for theseacts have been Sinhalese citizens, members of thearmy, the Special Task Force, the police, the HomeGuards and Tamil groups working under control ofthe government. Before investigating the role of thesuccessive governments, the “intent to destroy, inwhole or in part, a national, ethnical, racial or reli-gious group, as such” as required by Article II hasto be established.

n Intent

The subjective particular intent is extremely difficultto prove. Thus, a thorough judicial investigationwould be required to establish such an intent in indi-vidual cases. However, in the light of a possible pat-tern of systematic acts of genocide, intent might beinferred from sufficient evidence, as evidenced on aprima facie basis by a number of sources.

The acts committed during the anti-Tamil riots in theperiod of 1956 to 1983 were aimed at the Tamils assuch, be it for their protests against Sinhala-only ortheir fight for separatism. The Tamils were targeted

T

Killing of Civilians

as members of a national or ethnical group, not asmembers of a political group. Such a distinction be-tween Tamils as a people and Tamils as members ofa political group would be futile in this context sincethe denial of self-determination resulted in apoliticisation of the Tamils as a group. The attackson Tamils during the riots were deliberate and aimedat killing or wounding Tamils as members of a na-tional or ethnic group. The subjective intent to de-stroy the Tamil group at least in part can be inferredfrom the manner of the execution of the acts, i.e. theindiscriminate killing and wounding of Tamils forbeing Tamils.

Since the emergence of the LTTE, in particular afterthe passing of the PTA in 1979 and the beginning ofthe war in 1983, the nature of the acts committedagainst the Tamils has changed. They have becomepart of counter-insurgency operations and warfareof the security forces against the LTTE.

For these reasons, it might be argued, as successivegovernments in Sri Lanka have done, that the killingand wounding of Tamils is intended to destroy the


LTTE as a political group and not the Tamils as such.Moreover, it might be argued that the killing andwounding of Tamil civilians in the context of an armedconflict is a matter of humanitarian law, namely,observing the rules laid down in the Geneva Conven-tions for the protection of civilians, and not one ofgenocide. However, the International Court of Jus-tice found in a recent judgement that the GenocideConvention is applicable in cases where the courtwould be impelled to take account of events that mayhave occurred in the context of a civil war.246

The acts committed against Tamil civilians wouldthus amount to genocide only if they were not di-rected against the LTTE as a political group butagainst the Tamils as such. If the latter was beingdone intentionally, the killing and harming of Tamilcivilians would amount to genocide as well as viola-tion of international humanitarian law by the gov-ernment.

A large number of Tamils killed and wounded in thelast 14 years were unarmed women, men and chil-dren. Massacres committed by the security forces inretaliation for LTTE massacres and the rape of Tamilwomen have not been directed against the LTTE assuch. The targeting of young male Tamils as allegedterrorists has been reported to be arbitrary, sweepingand indiscriminate. On the ground, the distinctionbetween being a member of the LTTE and being aTamil appears frequently not to have been made bythe security forces. The de-facto equation of Tamilcivilians with LTTE supporters means that they havebeen targeted most and foremost for being Tamils.

Furthermore, the LTTE itself is not strictly speakinga political party but a national liberation movement.The so-called communal violence in such an ethnicconflict is based primarily on the membership to anethnic group, not membership to a political party.The killings and wounding of Tamils has thereforerepeatedly been directed against the Tamils as such.Although some of these acts do not appear to havebeen committed in a concerted and planned way, thefrequent occurrence of massacres, death and torturein custody, and the bombing of civilians appear notonly to have been an inherent feature of the methodsof warfare but also to have been applied in a system-atic fashion. They have been committed with the in-tention to seriously weaken and destroy Tamils as agroup, at least in part, in order to stifle political as-pirations of the Tamil people based on the right toself-determination. This intent can be inferred fromthe deliberate targeting of Tamil civilians by the se-

curity forces against the background of the ethnicnature of the conflict.

This conclusion might be contested on the groundthat it would make it impossible for the governmentto combat terrorism, in particular taking into accountthat the LTTE fighters often use a civil disguise toattack the security forces. The LTTE itself is reportedto have committed massacres against Sinhalese set-tlers.

The objection is more difficult to disentangle. A statehas the right to fight terrorism but not disproportion-ately. The majority of acts of genocide have beenindiscriminate, i.e. they were not directed against theLTTE as such but aimed at undermining its strengthat the expense of Tamil civilians. Moreover, it is ques-tionable whether the concept of terrorism is a mean-ingful category in an ethnic conflict that is soradicalised that belonging to one group is a suffi-cient factor for being considered an enemy. Moreo-ver, the labelling of the LTTE, which is claiming toassert the Tamil right to self-determination by force,as terrorists in order to legitimate the military forceemployed by the government against Tamil civiliansis in itself highly questionable, especially in the lightof previous unsuccessful attempts by the Tamil peo-ple to assert their political self-determination bypeaceful means.

Against this background, the means of warfare or-dered by the government and employed by the secu-rity forces are neither restricted to fighting “terror-ism” nor proportionate for doing so. This possibleobjection to interpreting the acts described above asconstituting genocide thus appears unconvincing inthe light of contrary evidence.

The persons responsible for acts of genocide com-mitted against Tamil civilians, be it through commit-ting the act or complicity in it, in particular in theform of command responsibility, incur individualcriminal responsibility and are punishable accordingto Article IV of the Genocide Convention. This ap-plies to all members of the security forces guilty ofhaving committed such acts, regardless of their rankand position within the forces.


n Government responsibility

uccessive governments have been repeatedly ac-cused by Tamil groups of having instigated or

condoned acts of genocide. In order to establish crimi-nal responsibility, members of the government inquestion must have either committed Article III (e)Complicity in genocide or (c) Direct and public in-citement to commit genocide.

Given the lack of official documents and the fact thatgovernment members do usually not commit acts ofgenocide themselves, complicity in genocide by mem-bers of a government is extremely difficult to prove.The Special Rapporteur proposed to add to the endof Article II of the Convention words such as: “Inany of the above conduct a conscious act or acts ofadvertent omission may be as culpable as an act ofcommission.”247 This is of particular importance insituations where a government is in a position to stopacts of genocide but fails to do so. However, as forthe time being, the conduct listed in Article II and IIIof the Convention consists exclusively of the com-mission of certain acts.248 The active complicity inacts of genocide by members of the government cantherefore only be inferred on the grounds of strongcircumstantial evidence.

During the 1956 riots, members of the police report-edly said that they were ordered not to interfere. In1958, it took the then Prime Minister Mr.Bandaranaike four days to proclaim an emergencyas a means to stop the rioting despite prior urgentcalls from the Indian High Commissioner to act im-mediately. The 1956 order and the 1958 failure toact were acts of advertent omission but fall short ofdisclosing any active government complicity in theriots.

The military occupation of the Tamil areas in 1961was primarily aimed at repressing Tamil protests.There is no hard evidence of concerted assaults onTamils as part of the operation but Mrs Bandaranaikestated that suffering of innocent people was not un-likely in consequence of restoring law and order.249

However, given that the troops were dispatched tobreak up the protest of Tamils because they weredemanding their right to self-determination, acts ofviolence committed during the operation and sanc-tioned by the government were genocidal and haveto be attributed to the government.

The strong opposition by the then Prime Minister

S�... We have decided to colo-nise four districts includingMannar with Sinhalese peopleby destroying forests. A major-ity of Sinhalese will be settledthere.�

Gamini Dissanayake: Minister of Land andMahaweli Development, 5 September 1983

Mrs. Bandaranaike to the 4th International TamilConference is not conclusive enough to demonstratecomplicity in the subsequent attacks.

During the 1977 riots, Sinhalese police and army par-ticipated in the riot. This fact alone is however notsufficient to establish government complicity in theacts. On July 14, 1979, Jayewardene, the UNP presi-dent from 1977 until 1988, issued the following or-der to the Sri Lankan army: “It will be your duty toeliminate in accordance with the law of the land themenace of terrorism in all its forms on the island,and more especially from the Jaffna district. I willplace at your disposal all resources of the state. Iearnestly request all law-abiding citizens to givetheir co-operation to you. This task has to be per-formed by you and completed before the 31st De-cember, 1979.”250 This authorisation, in conjunctionwith the PTA and the ERs, commissioned the policeand army to destroy suspected Tigers by all meanseven though they were only a small band of fightersin 1979. Besides being grossly disproportionate, itwas thus an instigation to extrajudicial killings andtorture. Given the indiscriminate nature of the fightagainst the Tamil Tigers, i.e. being directed againstall young Tamils, this order amounted to a complic-ity in subsequent acts of genocide committed by thesecurity forces.

During the police and army rampage in May/June1981, Cyril Mathew and Gamini Dissanayake, twogovernment ministers, were personally present inJaffna directing affairs. Dissanayake stated that hewas shocked by what he saw, that the police wereout of control, and that he would take responsibilityfor what happened.251 This indicates that the policeand army acted on their own account. However, themanner of targeting the public library, the office of


the Tamil newspaper Eelanadu, and the officeof the TULF as objects of destruction point inthe opposite direction. Since GaminiDissanayake and Cyril Mathew were knownas radical anti-Tamil Sinhalese politicians,many observers believed them to be responsi-ble for the incident.252 Thus, there is a lot ofcircumstantial evidence but a lack of a conclu-sive proof to support such a suspicion.

In August 1981, organised gangs perpetratedmost of the acts of genocide. In Ratnapura, theacts of violence were instigated by the localMP, a deputy minister, who was later sackedby Jayewardene. Observers held members ofthe ruling UNP, among them intimates of thePresident, responsible for having stimulated andorganised the violence.253 There was direct evi-dence in the case of Ratnapura and strong cir-cumstantial evidence, given the systematic andorganised manner of attacking specific groupsof Tamils, that members of the governmentwere accomplices in the acts of genocide.

The 1983 riot was predominantly executed byorganised gangs that had official lists to iden-tify Tamil citizens and Tamil property. Thegangs were known as “goon squads” and pri-marily recruited from the trade union wing ofthe UNP. In some incidents, eye-witnesses iden-tified members of the UNP, among them adeputy minister, as leading the squads; in othercases squads loyal to government ministers, i.e.Prime Minister Premadasa, Transport Minis- t e rM H Mohamed and Industries Minister CyrilMathew.254 The riots went on for days with the ac-tive participation of the security forces. PresidentJayewardene, making the first public announcementonly three days after the beginning of the violence,blamed the violence exclusively on Tamil demandsfor a separate state which had outraged the Sinhalesepeople. Simultaneously, he announced the SixthAmendment to the Constitution, which effectivelybanned any real Tamil opposition from parliament.Several commentators believed that the riots wereengineered to provide the rationale for this measure.255

There is thus overwhelming evidence of governmentinstigation and complicity in the riots although thepersonal responsibility of individual members of thegovernment would require a more thorough judicialinvestigation.

Since 1983, successive governments have pursued apolicy of war against the LTTE. Given the nature of


this war, it is difficult not only to distinguish betweenacts of combating terrorism that are legitimate underinternational law and acts that amount to genocidebut also to determine whether such a distinction isthe basis of the policy of the government in question.The enactment of the PTA and several ERs, the re-peated indemnity granted to security forces concern-ing allegations of arbitrary killings, disappearances,torture and rape and the imposition of the economicembargo in 1991, indicate that the governments ofMr.Jayewardene and of Mr.R.Premadasa from 1988-1994 have encouraged acts of genocide, e.g. on 18June 1990 when the Minister of State for Defence, R

Attack on administrative buildings (Jaffna Municipal Council)

Wijeratne, announced to parliament that “from nowon it is all-out war”.256

The systematic pattern of the acts described abovesuggests that they were employed as a governmentpolicy. This policy was effectively targeted againstthe Tamil people as such, even though its motive mighthave been to eliminate the LTTE. However, the mo-tive for the acts of genocide is irrelevant under theGenocide Convention. Thus, the largely indiscrimi-nate targeting of the Tamils as a people indicates thatthe destruction of the Tamils as a group was acceptedas the outcome of such a policy. There is thereforesufficient evidence of intent to implicate members ofthe government.

Concerning Article 2 (c) of the Genocide Conven-tion, the element of deliberate calculation to bringabout the physical destruction of the Tamils wouldbe difficult to establish, given that the economic block-ade and the imposition of security zones is officiallyused as a military strategy to bring about pressureon the LTTE and to cut off its supplies, even thoughthe physical destruction of Tamils in the form ofdeaths resulting from malnutrition and diseases is aninevitable result of the deprivation of food and medi-cine.

Concerning personal criminal responsibility for spe-cific acts of genocide, a more detailed investigationinto the actual complicity of government officials,especially in the form of specific orders, would berequired.

The same considerations apply to the government ofChandrika Bandaranaike Kumaratunga. Althoughshe has publicly proclaimed her commitment to hu-man rights and thus discouraged acts of genocide,she and members of the government might incurcriminal responsibility for the death of Tamil civil-ians caused by the economic blockade and acts ofgenocide committed by members of the securityforces, in particular in the course of the war whichhas been launched by her government.

Article III c. of the Genocide Convention is very nar-row in its scope. There have been few cases of adirect incitement to commit genocide. The majorityof statements concerning propaganda for genocidehave been different in nature. They have preparedthe ground for genocide by claiming Sinhalese ex-clusivity or superiority or have been derogatory state-ments about the Tamils as a race, in particular deny-ing their right to live in Sri Lanka. There have been anumber of provocative and abusive statements, in-

�There is very clear evidencenow emanating that violencedirected against the Tamil mi-nority is indiscriminate andmakes no distinction betweenthose engaged in conflict andinnocent civilians�

D S Dhillon: Indian Delegation, 42nd Session of theCommission on Human Rights, 1986

cluding the falsification of historical truths, that havebeen made by Sinhalese people and Sinhalese politi-cians. A notorious example is the book “Sinhala Peo-ple-Awake, Arise and Safeguard Buddhism” whichCyril Mathew, the then minister of industries, wrotein 1981. The book contained anti-Tamil speeches byJayewardene and others dating from the 1950s, andthe author called for a holy war in the cause of Bud-dhism.257 Jayewardene, speaking to a British reporterin the midst of ethnic tensions in July 1983, said: “Iam not worried about the opinion of the Jaffna peo-ple now....Now we can’t think of them. Not abouttheir lives or of their opinion about us...the moreyou put pressure in the North (Tamil areas) thehappier Sinhala people will be here....really, if Istarve the Tamils out, the Sinhala people will behappy.”258 Two months later, in the wake of the 1983anti-Tamil riots and Indian protests, Minister GaminiDissanayake said the following at the UNP headquar-ters in Colombo: “They are bringing an army fromIndia. It will take fourteen hours to come from In-dia. In fourteen minutes, the blood of every Tamil inthe country can be sacrificed to the land by us.” 259

On 24th July 1981, D.M.Jayaratne, MP forKundasale, in a debate concerning the events in Jaffnastated, referring to the then parliamentary Opposi-tion and TULF leader A Amirthalingam: “Whatshould we do to this so-called leader of the Tamils?If I were given power, I would tie him to the nearestconcrete post in this building and horsewhip himtill I raise him to the wits. Thereafter let anybody doanything he likes - throw him to the Beire (a lake) orto the sea, because he will be so mutilated that I donot think there will be life in him.” A similar state-ment was made by G.V.Punchinilame, MP forRatnapura, who recommended that members of the


246 see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v.Yugoslavia ), Preliminary Objections, Judgment, International Court of Justice, July 11, 1996, para.43247 UN Special Rapporteur 1985, p.20248 ibid.249 see S.Sivanayagam: Sri Lanka: 40-Year Chronology, p.27250 quoted in: S.Sivanayagam: Sri Lanka: 10 Years of Jayewardene Rule, TIRU, Madras, 1987 and N.Jayawickrama: Right of Self- Determination, p.10251 see E.M.Thornton and R.Niththyananthan: Island of Terror, p.35252 see ibid. and: Tamil Refugees say Gamini’s misdeeds caught up with him in: TIC, News Bulletin, Nos.38&39, September/October 1994, p.10253 see Brian Eads in: Observer, 20 September 1981 quoted in S.Ponnambalam: Tamil Liberation Struggle, p.210254 see E.M.Thornton and R.Niththyananthan: Island of Terror, pp.79,82255 see ibid., p.80256 quoted in: Amnesty International: The Northeast, p.7257 see S.Ponnambalam: Tamil Liberation Struggle, p.211258 Interview with Ian Ward of Daily Telegraph, July 11, 1983 quoted in: Hot Spring, April 1997, p.37259 quoted in:Tamil Refugees say Gamini’s misdeeds caught up with him in:TIC,News Bulletin, Nos.38&39, September/October 1994, p.11260 see E.M.Thornton and R.Niththyananthan: Island of Terror, p.38261 quoted in: S.Ponnambalam: Tamil Liberation Struggle, p.211

TULF should be punished by tearing their bodiesapart.260 In the same year, in relation to the Augustriots, Jayewardene stated on the 4th of September:“ I regret that some members of my party madespeeches in parliament and outside that encouragedviolence and murders, rapes and arson that havebeen committed”. 261

President Chandrika Kumaratunga said in March1996 that "the Sinhalese people are becoming im-patient and an all-out-war against the LTTE is inev-itable which may endanger the Tamils in the south."In August 1997, President Chandrika said, after de-claring that she was aware of illegal arrests and ar-rests for ransom, that ‘harassment of Tamils in south-ern areas could be ended only on achieving peace’,thus encouraging impunity among security forces.


These speeches fall within Article III c which meansthat the named persons incur criminal responsibilityunder the Genocide Convention. They are examples,relating to the 1981 riots, which, although not ex-haustive, give an indication of the nature of the pub-lic and direct incitement for genocide that has beenmade in Sri Lanka.

Numerous acts of genocide have been committed inSri Lanka that went unpunished. They were commit-ted by Sinhalese civilians, members of the securityforces and members of successive governments. Like-wise, there were cases of public and direct incite-ment to genocide by MPs and others that went un-punished. At the time of writing, acts of genocidecontinue to be committed in the course of the war inthe north and east.

Enforcement of the Genocide Convention

The existing enforcement mechanisms

he enforcement mechanisms under the GenocideConvention are predominantly geared towards

punishment rather than prevention of acts of geno-cide. Of the four existing mechanisms, the two cov-ering both prevention and punishment will be con-sidered first.

1. Article VIII: Any Contracting Party may call uponthe competent organs of the United Nations to takesuch action under the Charter of the United Na-tions as they consider appropriate for the preven-tion and suppression of acts of genocide or any ofthe other acts enumerated in Article III.

This provision has been called a needless repetitionof what could in any case be derived from the Char-ter, and furthermore, these UN organs can interveneonly within the limits of their power.262 Neverthe-less, the provision highlights the possible role of theUN in the enforcement of the Genocide Convention.Accordingly, the UN Security Council might deter-mine, pursuant to Article 39 of the Charter, that actsof genocide constitute a threat to the peace or a breachof peace263 and decide what enforcement measures totake in accordance with Article 40 or Article 41 of

the Charter.264 Moreover, should the parties to a con-flict agree to such a measure, peace-keeping troopsmight be sent by the Secretary General to the coun-try in question to prevent further acts of genocidetaking place. These mechanisms were employed inthe Yugoslav conflict and may have to some degreeprevented further acts of genocide being committed.

The UN has also a number of bodies operating in thefield of human rights. In 1994, a new organ, the UNHigh Commissioner for Human Rights, was estab-lished. The UN High Commissioner for HumanRights has the rank of an Under-Secretary-Generaland is vested with the principal responsibility for theUN’s human rights activities. His/Her mandate is,inter alia, the protection and promotion of humanrights and the establishment of a dialogue with Gov-ernments with a view to ensuring respect for humanrights. This involves reacting to cases of serious hu-man rights violations and prevention of human rightsviolations, the fight against racial discrimination andthe fight against particularly heinous human rightsviolations such as torture and enforced disappear-ances.265

In February 1997, the first High Commissioner, Mr.Jose Ayala-Lasso, who had under-

taken a number of diplomatic mis-sions and had initiated various fieldmissions during his period of office,

resigned his post.266 His work hasbeen criticised for being too dip-lomatic, i.e.failing to confrontgross human rights violators by

not issuing clear statements on thehuman rights records of the gov-ernments he was meeting.267 Mary

Robinson has been appointed as hissuccessor and it remains to be seen

in what manner she will fulfil herrole, which will to a large degreedepend on the outcome of the cur-

T


Destruction by indiscriminate shelling

rent restructuring of the UN and the organisationaland financial support of other UN organs, particu-larly the Security Council.

The Commission on Human Rights, which consistsof representatives of member states, also plays animportant role in monitoring human rights and pos-sibly preventing genocide by documenting violationsof human rights and establishing a dialogue with thegovernment concerned.

An important mechanism in this respect is the so-called 1503 procedure.268 The Sub-Commission onthe Prevention of Discrimination and Protection ofMinorities, a body of experts acting in an individualcapacity which was set up by the Commission onHuman Rights, examines “communications, togetherwith replies of governments, if any, which appear toreveal a consistent pattern of gross violations ofhuman rights.” The procedure is confidential, andaims at exerting discreet political pressure on thegovernment concerned to stop further violations ofhuman rights. Should the Sub-Commission decideto consider a communication and pass it on to theCommission, the latter might decide to reject it, passit on to the Economic and Social Council (ECOSOC)or keep it under review. When a communicationreaches ECOSOC, which rarely happens, the pro-ceedings become public, otherwise they remain con-fidential although the Commission announces whichcountries had been the subject of consideration. 269

The Resolution 1235 procedure,270 which is public,can be initiated by member states or by the Sub-Com-mission on the Prevention of Discrimination and theProtection of the Minorities to “examine informa-tion relevant to gross violations of human rights andfundamental freedoms.” If the Commission decidesto make a thorough study of a particular situation,considering “questions of the violations of humanrights and fundamental freedoms, including poli-cies of racial discrimination and segregation”, itmay appoint a Working Group or a SpecialRapporteur to study and report. It may also adopt aresolution condemning a situation and notify the gov-ernment concerned. In all cases it will report, throughthe council, to the General Assembly.271

A number of special Working Groups and SpecialRapporteurs have been established by the Commis-sion on Human Rights. Their function is to receiveinformation on the subject matter from all availablesources and request the government concerned to takeaction to prevent further human rights violations.

Regarding the prevention of genocide, the WorkingGroup on Enforced and Involuntary Disappearances,the Special Rapporteur on Extrajudicial, Summaryor Arbitrary Executions and the Special Rapporteuron Torture are of particular relevance.272

2. Article IX: Disputes between the ContractingParties relating to the interpretation, application orfulfilment of the present Convention, including thoserelating to the responsibility of a State for genocideor for any of the other acts enumerated in ArticleIII, shall be submitted to the International Court ofJustice at the request of any parties to the dispute.

The International Court of Justice (ICJ) has, pursu-ant to Article 36 of its Statute, jurisdiction only if aState party to the dispute recognises its jurisdiction.Article IX provides for such a recognition whichprompted several contracting parties to enter reser-vations against its applicability in disputes where theywould be involved. This means in practice that thisrecourse of action is not open against a number ofcontracting states. The major shortcoming of the pro-vision does however lie elsewhere. According to Ar-ticle 34, 1 of its statute, only States may be parties todisputes before the ICJ. Thus, individuals or non-state entities, e.g. representatives of a group subjectto genocidal attacks, are barred from seizing the court.Effectively, the court can only be seized by way ofan inter-state complaint; a procedure states are gen-erally reluctant to employ because of its diplomaticrepercussions. Moreover, states are more likely tocall upon the UN first, before initiating such pro-ceedings before the ICJ.

In spite of these limiting factors, the ICJ was for thefirst time called upon to decide a case concerning theapplication of the Genocide Convention in a ratherexceptional case which was made possible by thebreak-up of a state that was a party to the Conven-tion. Bosnia and Herzegovina requested the court toindicate provisional measures to stop the alleged geno-cide committed by Yugoslavia (Serbia andMontenegro). The Court issued two orders on 8 April1993 and on 13 September 1993 in which it orderedthat Yugoslavia should take all measures within itspower to prevent commission of the crime of geno-cide, in particular by ensuring that its armed forcesdo not commit acts of genocide.273 The Court heldthat it was not called upon to establish the existenceof breaches of the Genocide Convention, but that bothparties to the dispute were under a clear obligationto do all in their power to prevent the commission ofacts of genocide where there is a grave risk of them


being committed.274

On 20 March 1993, Bosnia filed an application be-fore the ICJ alleging violations of the Genocide Con-vention by the Government of the Federal Republicof Yugoslavia. It asked the ICJ to declare that Yugo-slavia had violated the Genocide Convention, orderYugoslavia to cease the acts constituting such viola-tions and declare that Yugoslavia had incurred inter-national responsibility for which it must make ap-propriate reparation. On 11 July 1996, the ICJ re-jected the preliminary objections raised by Yugosla-via, i.e. the lack of an international dispute, the lackof authority of the President of Bosnia at the time offiling the application and the lack of jurisdiction ofthe ICJ, and held that the application was admissi-ble.

Although the case concerned the admissibility andnot the merits, which will be decided upon in the nearfuture, there were some important findings in thejudgement. Firstly, concerning the existence of an“international dispute” falling within the provisionsof Article IX of the Genocide Convention, the ICJfound that pursuant to Article I, the Genocide Con-vention is applicable without reference to the circum-stances linked to the domestic or international natureof the conflict, provided that the criminal acts re-ferred to in Articles II and III have been perpetrated.Secondly, the ICJ held that the application was notinadmissible on the sole ground that, to decide thedispute, it would be impelled to take account of eventsthat may have occurred in the context of a civil war.Thirdly, the ICJ found that Article IX does not ex-clude any form of state responsibility. This appliesequally to the responsibility of a state for acts of itsorgans which are referred to in Article IV.275

Remarkable as these decisions may be, it needs to bekept in mind that the Court lacks any enforcementmechanisms. Ultimately, it would have to be uponthe Security Council to enforce the judgement pur-suant to Article 94,2 of the UN Charter if the partyin question fails to comply with the decision of theICJ. A decision by the ICJ has nevertheless strongpersuasive force, since the Court is the principal ju-dicial organ of the UN. Thus, it might prompt otherstates or bodies of the UN to take appropriate actionto prevent further acts of genocide.

3. Article VI, first part: Persons charged with geno-cide or any of the other acts enumerated in ArticleIII shall be tried by a competent tribunal of the Statein the territory of which the act was committed.

The first draft of the Convention incorporated theprinciple of universal enforcement, permitting a Statewhose authorities had arrested those charged withthe crime, to exercise jurisdiction, regardless of thenationality of the accused or the place where the of-fence was committed.276 The final text of the Geno-cide Convention eliminated this provision. Observ-ers viewed this step as favouring state sovereigntyover the need to punish the perpetrators of atrociouscrimes.277 It is evident that the scope for punishmentis much narrower if it is confined to the jurisdictionof the countries in which acts of genocide have beencommitted. Firstly, there will most likely be no trialsas long as the regime committing genocide is in power.Secondly, even if the perpetrators of genocide areousted and a new government takes over, the remain-ing power of the perpetrators and the need for na-tional reconciliation often militate against a trial, ashas been, for example, partly the case in Cambodia.

However, taking into account therule of exhaustion of local rem-

edies, the exercise of state sov-ereignty carries with it an obli-gation for a state that is party to

the Genocide Convention toprevent and punish acts ofgenocide. Although this obli-

gation is not enforceable, a failureto comply with it would send astrong signal that a governmentis not willing or not able to en-

force the Genocide Convention it-self, thus possibly creatingconditions that would justify

outside intervention in the face ofcontinuing acts of genocide.Air-raid victims


4. Article VI, second part: Persons charged withgenocide or any of the acts enumerated in ArticleIII shall be tried by such international penal tribu-nal as may have jurisdiction with respect to thoseContracting Parties which shall have accepted ju-risdiction.

This provision was drafted under the impression ofthe Nuremberg and Tokyo War Crimes Tribunalswhich led many participants in the international sys-tem to believe that the establishment of a permanentinternational criminal court was imminent. However,for reasons of state sovereignty in the highly polar-ised cold war era, the envisaged international crimi-nal court failed to materialise. The establishment ofan international criminal court gained new momen-tum after the break-up of the Soviet-Union and sub-sequent events in Yugoslavia and Rwanda. Both ofthese ethnic conflicts, which had clear features ofgenocide, triggered the establishments of InternationalCriminal Tribunals.278 The Tribunal for Yugoslaviawas established in May 1993 and on 13 February1994, it issued the first ever genocide indictmentagainst Z.Meakic, chief commandant of the Omarskadeath camp in Bosnia. On 7 May 1997, the tribunaldelivered its first judgement convicting D.Tadic ofpersecution, i.e. murder with a discriminating intent,and beatings in prison camps, but not of genocide.279

The Tribunal for Rwanda was established on 8/11/1994 but has not yet rendered any final judgement.The Tribunals were set up on an ad-hoc basis andwere confined to the countries in question. Their ex-istence depended on the political willingness of theUN Security Council to support and implement itsestablishment. The establishment of these tribunalswas welcomed by many international human rightslawyers who nevertheless lamented their contingent

nature. For this reason, the call for a permanent In-ternational Criminal Court gained fresh impetus.

On 29 November 1996, the Sixth Committee of theUN General Assembly adopted resolution A/C.6/51/L.10 on the establishment of a permanent Interna-tional Criminal Court by consensus renewing themandate of the Preparatory Committee initially es-tablished in 1995, and setting the date of the confer-ence of plenipotentiaries for 1998. The draft Statuteof the Court includes jurisdiction for genocide; ag-gression; serious violations of the laws and customsapplicable in armed conflict; crimes against human-ity; and various treaty crimes.280

Given the broad support that the establishment ofthe International Criminal Court appears to enjoyamong states, it appears very likely that it will beestablished in the near future. It will allow perpetra-tors of genocide to be prosecuted. Despite these pow-ers, practical problems regarding co-operation andapprehension of perpetrators are bound to occur.However, these obstacles are inherent in the interna-tional system and could only be overcome by the es-tablishment of an international police force with ad-equate powers and the necessary political support toenforce international arrest warrants.

Nevertheless, it is widely held that the establishmentof the International Criminal Court would send apowerful signal to all perpetrators of internationalcrimes that the international community will not tol-erate their activities any longer. Moreover, an indict-ment of a government would lead to mounting pres-sure on the international community, in particular theUN, to take appropriate measures to stop the indictedgovernment or the indicted individuals committing

further international crimes.

The enforcement mechanisms ofthe Genocide Convention are in-efficient since a mechanism spe-cifically tailored to prevent andpunish genocide is lacking andsince the existing mechanisms

fall short of achieving the purportedobjective of the Convention. Thisapplies in particular to the lack ofuniversal jurisdiction and the so

far non-existent InternationalCriminal Court whose foreseeableestablishment appears to point to

a fundamental change in the enforce-ment structure of the Genocide Con-Protest against economic blockade


262 see A.Cassese: Human Rights, p.77263 see L.Kuper: Prevention of Genocide, p.104, who argues that gross violations of human rights should be considered as constitutinga threat to peace according to Article 39 of UN-Charter.264 Such measures may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio,and other means of communication, and the severance of diplomatic relations as well as demonstrations, blockade, and other opera-tions by air, sea, or land forces of Members of the United Nations.265 see UN: The UN and Human Rights, 1945-1995, 1995266 see Amnesty International: Agenda for a new United Nations High Commissioner for Human Rights, April 1997, pp.2-7267 see ibid., p.3268 Resolution 1503 of the Economic and Social Council, 29/5/1970269 see A.H.Robertson and J.G.Merrils: Human Rights, pp.74-78, and UN: UN Action, pp.23,24,312-314270 Resolution 1235 of the Economic and Social Council, 6/6/1967271 see A.H.Robertson and J.G.Merrils: Human Rights. pp.78,79272 see ibid. pp 84-87, and UN: UN Action, pp.21,22,72,73,94,95273 see ICJ Rep. 1993, order of 8/4/1993 at para 52 A and B and reaffirmed in second order of 13/9/1993, at para 61274 see ICJ Rep. 1993, order of 8/4/1993 at para 45275 see J.H.Bello: International Decisions: Application of the Convention on the Prevention and Punishment of the Crime of Genocide( Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgement, International Court of Justice, July 11, 1996 in: The Ameri-can Journal of International Law, Vol.91, 1997, pp.121-126276 UN Special Rapporteur 1985,: pp.27, 56277 see A.Cassese: Human Rights, p.77278 see S.Grant: Dispensing International Justice: The Yugoslav and Rwandan Criminal Tribunal in: Interights Bulletin,Volume 9,No.2, 1995, pp.61-65279 see Christopher Bellamy: Bosnian Serb found guilty of war crimes in: Independent, May 8 1997280 see UN Doc. A/49/335, 1 September 1994

vention. This is due to the new impetus given to geno-cide and the broader category of crimes against hu-manity in the light of events in Yugoslavia andRwanda. They have prompted a revival of the Geno-cide Convention which has been a dead letter foryears. However, given the current provisions of theGenocide Convention, the remnants of past short-comings in its drafting still have the force of law.

Thus, previous criticisms of it, in particular that itwas interlocked with an undue priority given to statesovereignty and that it amounted to a registration ofprotest against past misdeeds of individual or collec-tive savagery rather than to an effective instrumentfor their prevention or repression, remain valid andneed to be addressed by the international communityif it seriously intends to combat genocide.


The UN record of preventingand punishing genocide

here have been innumerable cases of atrocitiescommitted since the foundation of the UN that

have been called genocide, even if they did not fallwithin the purview of the definition of genocide inthe Convention. Among them are, inter alia, the mas-sacre of hundreds of Balubas by the Congolese na-tional army in 1960281, the extermination of the Hutuby the Tutsi in Burundi in 1965 and 1972282, massa-cres committed by the Pakistani army in 1971 againstthe people who were to become Bangladesh283, thekillings of Ache Indians in 1970-1974 with the com-plicity of the government authorities of Paraguay284,atrocities committed by Idi Amin’s regime in Ugandaagainst political and ethnic opponents in the periodof 1971-1978285, the extermination of approximatelytwo million people for ideological reasons by theKhmer Rouge in Cambodia between 1975 and1978286, the massacre of Palestinians perpetrated inLebanon with complicitous inaction by the Israeliarmed forces287, the Anfal campaign of bombardingand killing thousands of Iraqi Kurds by means ofchemical warfare committed by Sadam Hussain’sforces in 1988288, and the recent cases of mass mur-der committed in Yugoslavia mainly by Serbian forcesagainst Bosnian Muslims289 and in Rwanda by theHutus on the Tutsis290, not to forget the continuingoppression taking place in East Timor291, Tibet292,southern Sudan293 and Turkish Kurdistan294 as exer-cised by the Indonesian, Chinese, Sudanese and Turk-ish governments respectively.

T


"There can be no derogations from theduty to uphold the right to life in anycircumstances, even "in time of publicemergency which threatens the life ofthe nation."

Article 4 of the International Covenant on Civiland Political Rights (ICCRP), to which the Governmentof Sri Lanka acceded in 1980.

The acts of genocide against the Tamils in SriLanka295 need to be recalled in order to complete thisnon-exhaustive enumeration of cases of genocide.Given this account of outrageous crimes that havecaused inconceivable suffering and have cost mil-lions of lives, it should be expected that the preven-tion and punishment of crimes of genocide would beone of the priorities of UN activities.

Until recently, the reverse has been the case and UNactivities on genocide have repeatedly been called afailure.296 A brief account of UN responses to geno-cide will confirm this verdict.

In 1960, the UN Security Council decided that troopshad to abstain from intervening in Congo despiteurgent calls by the then General-Secretary DagHammerskjold.297 In 1971, neither the UN GeneralAssembly nor the Security Council took any deci-sive action to prevent the genocide of Bangladeshisby Pakistani troops. The Sub-Commission on Pre-vention of Discrimination and Protection of Minori-ties also failed to act despite requests by internationalhuman rights organisations to do so.298 The cases ofBurundi, the Apache Indians in Paraguay, Ugandaand Cambodia were dealt with in a similar fashionof no decisive action being taken.299

The immediate post cold-war era witnessed two hor-rendous ethnic conflicts that led the UN to take

stronger action. In addition, the case ofthe Kurds in Iraq has triggered inno-

vative ways of preventing genocide.

In Yugoslavia, the Security Councilwas actively engaged in bringing

about a peaceful settlement of thedispute. Despite its efforts and the

dispatch of peacekeeping troops whichat least partly prevented further waratrocities taking place, the UN ulti-

mately failed to halt the war and toprevent acts of genocide. The UN

engagement has thus been rightly criticised as beinginadequate which is due to a strategy of restrictingthe extent of the conflict instead of radically stop-ping the war in the first place or contributing to along-term solution. The same assessment has beenmade with regard to UN action in Rwanda. Both strat-egies were marked by favouring humanitarian reliefwhen the damage had already been done, over swiftpolitical action to devise ways to prevent a simmer-ing ethnic conflict from escalating into genocide.300

Nevertheless, both events triggered the establishmentof international criminal tribunals which is a posi-tive step if punishment is regarded to be a means ofjustice and deterrence for future crimes.

In Iraq, the attack on Iraqi Kurds by Iraqi troops inthe aftermath of the Gulf-war prompted the alliedforces to set up a safe haven, i.e. a demarcated, pro-tected territory for the Kurdish population in 1991.In addition, a no-fly zone was imposed which pro-hibited Iraqi aircraft from operating in the northern,Kurdish region of Iraq. Due to the conflicting politi-cal interests in the region, in particular concerningTurkey and Iran, and renewed involvement of Iraqiground troops in fights between Kurdish factions,

the situation in Iraqi Kurdistan remains explosive.Nevertheless, the innovative measures provided atleast temporary protection to the population and ena-bled the Kurds to exercise some form of self-govern-ment in the region.301

There appears to be some scope for more effectiveUN action in future cases of genocide by utilisingand further developing the methods employed in thecases described above. However, the end of the coldwar has not meant that decision-making within theUN is based on objective criteria. Political interestsand considerations are still predominant factors onthe basis of which the most influential participantswithin the UN, especially the Security Council, de-rive their decisions. Therefore, even in clear cases ofa looming genocide or a genocide already occurring,what kind of action is taken will depend very muchon the political position of the country in question inrelation to the major actors in the international arena.In general terms, the UN still appears to favour areactive, i.e. providing humanitarian relief during andafter a conflict, over a proactive, i.e. intervening,possibly forcibly, at an early stage of a conflict, strat-egy in dealing with situations of genocide.

281 see A.Cassese: Human Rights, p.79282 see L.Kuper: International Action against Genocide, p.10 and R.Lemarchand: Rwanda and Burundi, Praeger, New York, 1970283 see ibid.,p.6 and K.Chaudhuri: Genocide in Bangladesh, Orient Longman, Bombay,1972284 see ibid.p.9 and R.Arens, ed.: Genocide in Paraguay, Temple University Press, Philadelphia, 1976285 see ibid., p.10 and International Commission of Jurists: Uganda and Human Rights, Geneva, 1977286 see B.Kierman: The Cambodian Genocide in:G.J.Andrepoulos: Genocide, pp.191-228287 see A.Cassese: Human Rights, p.84288 see M.V.Bruinessen: Genocide in Kurdistan? in:G.J.Andrepoulos: Genocide, pp.141-170289 see Ian Traynor: Judgement day for Hague court in: Guardian, 7 May 1997, p.11290 see T.Sellstroem: The International Response to Conflict and Genocide: Lessons from the Rwanda Experience, Copenhagen, 1996291 see F.Chalk&K.Jonassohn:History and Sociology of genocide, p.12 and J.Dunn: East Timor: A case of cultural genocide in:G.J.Andreopolous: Genocide, pp.171-190292 see H.Josephin, K.J.Harvey, J.Denise and M.E.Landorgan: Independence for Tibet: an international law analysis in: China LawReporter 1994, pp.21-72293 see Human Rights Watch/Africa: Behind the red line: political repression in Sudan, New York, 1996294 see recent case law of the European Court on Human Rights, finding Turkey in breach of several Convention articles, in particularconcerning its policy of destroying Kurdish villages, killing Kurdish civilians, and its torture practices.295 see L.Kuper: International Action against Genocide, p.15 , A.Cassese: Human Rights, p.80 and I.W.Charny: Towards a GenericDefinition of Genocide in: G.J.Andreopoulos: Genocide, p.64296 see L.Kuper: International Action against Genocide, p.11297 A.Cassese: Human Rights, pp.81-83298 see L.Kuper:International Action against Genocide, p.10299 see ibid. pp.10,11300 see T.Findley: Armed conflict prevention, management and resolution in: SIPRI Yearbook 1995, pp,37-82, see also: J.Karhilo: Casestudy on peacekeeping: Rwanda in: SIPRI 1995, pp.100-116 and M.Zucconi: The former Yugoslavia: Lessons of war and diplomacy in:SIPRI 1995, pp.211-229301 see H.Cook: The Safe Haven in Northern Iraq, Human Rights Centre, Essex, KHRP, London, 1995


UN record on Sri Lanka

one of the UN organs has directly intervened inSri Lanka to prevent acts of genocide. Nor has

any international tribunal been established to try thoseresponsible for acts of genocide in Sri Lanka. Al-though events in Sri Lanka fall within the categoryof internal conflicts with an international dimension,no initiatives of either the UN Security Council orthe UN Secretary-General have been made to sendpeace-keeping troops to Sri Lanka. UN officials andmember states have repeatedly stated that they areunable to intervene as long as both parties are notcommitted to peace.302 Thus, the stalemate regard-ing the peace talks and the objection of the govern-ment to any form of third-party involvement appearsto prevent any UN peace missions to Sri Lanka, be-sides possible political motives of UN member statesnot to intervene in Sri Lanka.

However, events in Sri Lanka have been scrutinisedin terms of human rights violations prior to and dur-ing the war. In 1983, the Sub-Commission on Pre-vention of Discrimination and Protection of Minori-ties adopted a resolution on Sri Lanka concerningthe communal violence against the Tamil-speakingpeople in which it called for information from SriLanka and recommended that the Commission ex-amine the situation.303

In 1987, the UN Commission on Human Rights calledupon all parties to the conflict to respect the univer-sally accepted rules of humanitarian law, to renouncethe use of force and violence and to pursue a negoti-ated political solution.

Throughout the 1980s, the UN Working Group onEnforced or Involuntary Disappearances, the UNSpecial Rapporteur on Torture and the UN SpecialRapporteur on Extrajudicial, Summary or ArbitraryExecutions raised cases of disappearances (936 casesof reported disappearances at the end of 1989), tor-ture and deaths in custody as well as cases of possi-ble extrajudicial executions.304

In the 1990s, the UN Special Rapporteur on Tor-ture305 and the UN Special Rapporteur on Extrajudi-cial, Summary or Arbitrary Executions306 have con-tinuously reported cases concerning Sri Lanka andraised them with the government. There have alsobeen reports of the Working Group on Arbitrary

N

Detention307, of the Special Rapporteur on the Elimi-nation of Religious Intolerance308, and on InternallyDisplaced.309

The UN Working Group on Enforced and Involun-tary Disappearances visited Sri Lanka in 1991 and1992.310 In its reports, it expressed concern over thelarge number of disappearances and recommendedthat the ERs and the PTA be brought into line withaccepted international standards regarding due proc-ess and the treatment of prisoners. In 1996, the Groupstated that since its establishment in 1980, 11,513cases of disappearances alleged to have occurred inSri Lanka were reported to it, the second highest to-tal number for any individual country.311 The Groupexpressed its concern at the continuing high level ofnewly reported cases of disappearances in Sri Lankaand the large number of unresolved cases of past dis-appearances.312 In 1995, the Working Group com-mented on the increase in new cases as follows: “Not-withstanding the cooperation which the workinggroup has received from the government, it isalarmed at reports according to which the previouspattern of systematic disappearances seems to bere-emerging”.313

The Human Rights Committee has so far examinedthree periodic reports of Sri Lanka submitted pursu-ant to Article 40 of the International Covenant onCivil and Political Rights. The third periodic reportwas examined on 24 and 25 July 1995.314 In its gen-eral comments, the Committee stated that the reportwas not satisfactory, in particular lacking detailedinformation and being submitted too late. The Com-mittee then considered the ERs and the PTA. Severalaspects of these laws were criticised by members ofthe Committee which concluded: “The Committeeconsiders that the domestic legal system of Sri Lankacontains neither all the rights set forth in the Cov-enant nor all the necessary safeguards to prevent

"United Nations Secretary Gen-eral Boutros Boutros Ghali hasappealed to both sides and tothe international community forimmediate assistance for over250,000 civilians displaced inJaffna to avert a major humani-tarian crisis.�Sri Lanka Monitor, October 1995


their restrictions beyond the limits established bythe Covenant.”

This statement applied in particular to Article 9 ofthe ICCPR, which stipulates the right to liberty andsecurity of person, prohibits arbitrary arrest and de-tention and provides for judicial safeguards, andArticle 10 which requires that all persons deprivedof their liberty shall be treated with humanity andwith respect for the inherent dignity of the humanperson. The third part of the review concerned gov-ernment measures relating to the implementation ofthe rights granted in the ICCPR. The Committee rec-ommended that the State party consider acceding tothe Optional Protocol; that due consideration be givento the provisions of the Covenant in the present ef-forts to reform the Constitution, in particular regard-ing derogations; that the death penalty may only beimposed for the most serious crimes and be ultimatelyabolished; that the Convention against Torture Actbe amended to bring it in conformity with Article 7(prohibition of torture) of the Covenant. It also ex-pressed concern regarding the effectiveness of the ha-beas corpus remedy in respect of those arrested un-der the PTA as well as regarding the multiplicationof bodies to promote and protect human rights andthe narrow mandate of Commissions investigatingpast human rights violations and the non-conformityof the basic principle of fairness in their appoint-ment. Moreover, several members of the Committeeexpressed their concerns at the ineffectiveness of thefundamental rights petition and the impunity enjoyedby the security forces.

At the 53rd session of the UN Commission on Hu-man Rights on 9 April 1997, a record number of 53Non Governmental Organisations (NGOs) called forthe ending of the Sri Lanka-Tamil Eelam war and

the withdrawal of Sri Lanka’s occupying forces fromthe Tamil homeland. The NGOs have consultativestatus with the UN Economic and Social Council andincluded organisations such as the International Com-mission of Jurists, the World Council of Churches,the International Human Rights Law Group and theInternational League for the Rights and Liberationof Peoples. Their joint statement, indicating the grow-ing concern at the genocidal situation prevailing inSri Lanka, expressed grave concern at the violationof humanitarian law and human rights in Sri Lanka.It stated that “the civilian Tamil population contin-ues to be a target of military operations”, that “thereare more than 825,000 displaced Tamil civilians liv-ing under appalling conditions which include acuteshortages of water, food and medicine” , and that“disappearances, extra judicial killings, rape, tor-ture, arbitrary arrest and indefinite detention in thecontext of war continue.” Moreover, it was “im-perative that the Tamil People choose their own po-litical and national status.” The statement also calledfor a political solution, “which recognises the rightof the Tamil people to determine their political sta-tus.”315

The United Nations High Commissioner for Refu-gees has also become involved in Sri Lanka throughthe provision of humanitarian aid for refugees. How-ever, its repatriation programmes and its positionpapers released in 1995 and 1996, which declare SriLanka to be a safe country for Tamil refugees, havecome under fierce criticism.316

The UN Secretary-General also intervened at theheight of the refugee crisis following the capture ofJaffna by the Sri Lankan army. However, his plea toemploy the UN to help Tamil refugees received ahostile response from the government.317

302 see H.J.Whall: Right to Self-Determination, p.311303 see L.Kuper: Prevention of Genocide, p.222304 see UN: UN Actions, p.343 concerning UN actions regarding Sri Lanka in the 1980s305 see E/CN.4/1996/35 & Add.1306 see E/CN.4/1996/4307 see E/CN.4/1997/Add.1 Dec No.1/1996308 see E/CN.4/1993/62 & Corr.1 and E/CN.4/1995/91 & Add.1309 see E/CN.4/1994/44/Add.1 and E/CN.4/1995/50310 see E/CN.4/1992/18/Add.1 of 8/1/1992 and E/CN.4/1993/25/Add.1311 E/CN.4/1997/34, para.318312 ibid. para. 323 and 327313 E/CN.4/1996/38,para 397314 see UN CCPR/C/79/Add.56, see also discussion of report in: Amnesty International: Sri Lanka Under scrutiny by the Human RightsCommittee, December 1995315 see Geneva: “ Withdraw occupying forces from Tamil homeland” Geneva: Call by record number of 53 NGOs in: Hot Spring, April 1997, p.6316 see Refugee Council: Protection Denied, pp.8,9317 see Vasantha-Rajah: Tamil Exodus and Beyond, L.Samarasinghe, London, 1996,p.21


Sri Lanka’s recordof enforcing the Genocide Convention

Floating dead bodies

here are no known cases in which an accusedhas been charged with acts of genocide in Sri

Lanka.

Successive governments have failed to conduct inde-pendent inquiries and to take action against thoseresponsible in relation to the race riots.318 The 1956and 1958 riots, army attacks during the 1961 mili-tary occupation, although being the subject of anofficial inquiry, and the 1974 attack on the TamilConference were treated as some kind of natural dis-aster without setting the criminal machinery in mo-tion in spite of police non-interference or active par-ticipation in these acts. In 1977, the report of theSansoni commission was not followed up by adequateprosecution of the culprits who were instead grantedindemnity. No action is reported to have been takento bring to justice the perpetrators of murder, assault,rape and looting during the 1981 riots. The 1983 ri-ots and prison massacres were either investigated bymeans of inconclusive police inquiries or went com-pletely unpunished. In 1988, the Indemnity (Amend-ment) Act was passed which gave immunity from

prosecution to all members of the security forces from1/8/1977-16/12/1988, provided that their orders werecarried out in “good faith” and in the “public inter-est.”

Being operative between 1990 and 1995, a presiden-tial commission of inquiry into the illegal removal ofpersons that occurred after 11 January 1991 recom-mended at the end of 1995 the prosecution of thoseresponsible in approximately 100 cases of disappear-ances, which are currently under investigation.319

An inquiry into the killings of Tamil civilians by thearmy in Kokkaddichcholai in June 1991 found thatthe deaths had resulted from deliberate retaliatoryaction. Of 20 military personnel tried by a militarytribunal, none was found guilty of murder. The onlyaction taken was the dismissal of the lieutenant incharge who was convicted of failing to control histroops and disposing of bodies illegally at the site ofthe massacre320. Several other cases of extrajudicialexecutions, disappearances, murder, rape and torturewere either not tried at all or failed to reach any con-

clusion.321

In July 1994, Amnesty Inter-national published a documentSri Lanka: When will justicebe done? which highlighted 18cases of extrajudicial execu-

tion and disappearance that oc-curred in Sri Lanka since 1983.It found that, although in the ma-jority of cases some form of in-

vestigation or prosecution hadtaken place, the outcome hadbeen far from satisfactory.

Moreover, some of the investiga-tions seemed to have been set up in

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order to silence public outcry at the time without anyreal determination to bring those responsible to jus-tice.322

In 1994, three commissions were established by thenew government whose mandate was to investigatedisappearances that had occurred since 1 January1988. Although they had not yet heard evidence in alarge number of complaints, the Commission wasdirected to terminate in December 1996. The Com-missions have submitted their reports but the gov-ernment has not announced measurers to punish alarge number of security force personnel found guilty.The investigations have been criticised for not in-cluding more than 680 cases of disappearances re-ported prior to 1 January 1988.323

Throughout 1995 and 1996, several prosecutions ofperpetrators of murder and rape were initiated. How-ever, in relation to the extra-judicial executions inColombo in 1995 and at Kumarapuram and Kanniyain 1996, the accused were released on bail after theyhad been charged, and did reportedly return to armyservice in the northeast.324 In March 1997, the Co-lombo Bolgoda death squad case against the 22 mem-bers of the Special Task Force was taken off the courtroll because the accused and the Attorney Generalfailed to appear for two hearings.325 The Magistratecalled the absence of the Attorney General’s Depart-ment an obstruction of justice; a fact that was also

318 see above: Acts of genocide: The evidence319 see Amnesty International: Wavering Commitment, p.30320 see Amnesty International: Annual Report 1993, p.266321 see Amnesty International: Summary of concerns, p.6322 see Amnesty International: Time for truth and justice, April 1995, pp.20-23323 see Amnesty International: Wavering Commitment, p.30, see also on lack of progress in prosecuting army officers implicated incases of disappearances: Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1997/34, para. 323324 see Amnesty International: Wavering Commitment.,p29325 see Sri Lanka Monitor, No.111, April 1997, p.3326 see Sri Lanka Monitor, No.110, March 1997, p.4327 Amnesty International: Wavering Commitment, p.29328 see US State Department: Country Report 1996, introduction329 see Sri Lanka Monitor, No.111, April 1997, p.3

criticised by human rights agencies as encouragingimpunity.326

The case concerning the massacre at Kumarapuramis currently awaiting a decision on indictment. How-ever, key witnesses expressed fears for their safetysince at least one high-ranking officer involved inthe incident has not been arrested and continues tobe in charge of an army camp in the area.327

Despite the stated commitment of the new govern-ment to bring the perpetrators to justice and despitea few inquiries and prosecutions, impunity for mem-bers of the security forces remains a serious prob-lem.328

Despite several Supreme Court rulings on the con-tinuing occurrence of torture and on the breach ofERs by officials including the Defence Secretary inDecember 1996, thus far no action has been taken.329

The continuing impunity for acts of a genocidal na-ture in the form of lacking prosecution into pastcrimes, various indemnity laws and apparent short-comings in the prosecution of members of the secu-rity forces for crimes committed since 1988, doesnot only amount to a failure of Sri Lanka to enforcethe Genocide Convention but also fails to preventthe future commission of those acts by not holdingthe perpetrators responsible.



Emergency Regulation 15A introduced in June 1983, authorised the security forces to dis-pose of dead bodies in secret without inquest proceedings or post-mortem. Followinginternational condemnation, Regulation 15A was replaced by Regulations 55B to 55G inJune 1985. Under these regulations the Assistant Superintendent of Police (ASP), in case ofdeath in custody, was required to proceed to the scene and after enquiry report to the Magis-trate. The Regulations did not lay down the time limit for such enquiry, whereas under theCriminal Procedure Code of the period, the enquiring officer must proceed immediately tothe scene and send his report forthwith to the Magistrate.

Further, the Magistrate had no power under the Regulations to initiate an enquiry and couldact only if the matter was referred by the Inspector General of Police (IGP) or his deputy.Furthermore, the jurisdiction of the High Court could be invoked only on an application bythe IGP. Amnesty International expressed concern that legal safeguards provided by ordi-nary inquest proceedings were substantially weakened and that the police still had thepower to dispose dead bodies without an inquest "in the interests of national security".

In November 1988, Regulation 55FF was introduced, once again allowing the police to buryor cremate dead bodies without inquest. Amnesty International declaredthat the Regulation facilitated arbitrary killings and cover-up of killings and gave the impres-sion that the government condoned such killings.

The Emergency Regulations were amended in February 1990. Amnesty International said atthe time that Emergency Regulations regarding post-mortems and inquests remained unsat-isfactory despite withdrawal of Regulation 55FF. Although the other Regulations (55B-F) didnot permit immediate disposal of bodies without post-mortem, as did 55F, the Regulationsremained inadequate to ensure full effective investigations into extra-judicial executions.

Amnesty International said in July 1994 that even when the Regulations relating to secretdisposal of bodies were not in force, other Regulations provided special secret inquestprocedure which could be used to cover-up extra-judicial killings in custody. The impunitygranted by the Regulations cannot easily be overcome. Physical evidence had been de-stroyed within the framework of the Regulations and the mere existence of the Regulationswas a signal to the security forces of the political will to grant impunity to those committinghuman rights violations. Amnesty International said further in July 1994 that the currentEmergency Regulations remained wholly inadequate for the full and impartial investigationof deaths caused by security forces and could still be used to cover-up illegal killings.

The new Emergency Regulations introduced after the present People's Alliance came topower in August 1994, retains provisions (Regulations 44 and 45) for the disposal of deadbodies without an inquest. In the case of Letchumikanthan Thamayanthan, who was shotdead by the Army at Thirukadalur in Trincomalee District on 18 August 1997, the policeinvoked the provisions and handed over the body to the relatives without an inquest.

A Note on Secret Disposal of Bodies

Humanitarian Intervention

330 see B.Harff: Genocide and Human Rights, pp.24,25 and N.Rodley (ed): To Loose The Bands Of Wickedness: International Interven-tion in Defence of Human Rights, Brassey’s, London, 1992331 Stowell in 1921 quoted in B.Harff: Intervention in Genocidal Situations, p.147332 see ibid. and J.A.R.Nafziger: Self-Determination and Humanitarian Intervention in a Community of Power in: Denver Journal ofInternational Law and Policy, Vol.20:1, Fall 1991, pp.21-26333 see M.J.Bayzler: Reexamining the Doctrine of Humanitarian Intervention in the Light of the Atrocities in Kampuchea and Ethiopiain: Stanford Journal of International Law, Summer 1987, pp.598-607

he possibility of humanitarian intervention hasrepeatedly been referred to as being the most ef-

fective means of preventing the commission of geno-cide outside the UN.330 Humanitarian intervention hasclassically been defined as the reliance upon forcefor the justifiable purpose of protecting the inhabit-ants of another state from treatment which is so arbi-trary and persistently abusive as to exceed the limitsof the authority within which the sovereign is pre-sumed to act within reason and justice.331 Accordingto this definition, humanitarian intervention wouldbe justified in cases of genocide.

However, humanitarian intervention constitutes useof force and conflicts with the principle of non-inter-vention and possibly with Article 2 (4) of the UNCharter. It is therefore controversial whether humani-tarian intervention is lawful under international law,and if so, under what conditions.332 Given the com-mitment to human rights laid down in the preamble,Article 1 (3), 55 (c) and 56 of the UN-Charter, thereis a strong case for the use of humanitarian interven-tion in cases of genocide. In order to prevent abuseof the use of force, humanitarian intervention is re-garded to be lawful only if there is the commissionof large-scale atrocities in the country of interven-tion, if the intervention is based on an overriding hu-manitarian motive, if it takes place giving considera-tion to a preference for joint action, if it is propor-tional to the objective sought to be achieved and ifall available remedies have been exhausted.333

Examples of humanitarian intervention in genocidalsituations are the employment of troops by India inthe case of East Pakistan 1971 and by Vietnam inCambodia in 1978. They have been received as amatter of fact but were overshadowed by specifichistorical constellations and political motives. Thus,they cannot be said to constitute precedents for fu-ture cases of humanitarian intervention. Neverthe-less, they achieved the objective of halting acts ofgenocide and might for this reason provide valuablelessons for possible preventative measures in future.

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However, the main international body to employ forceremains the UN which should by all possible meansbe seized with initiating collective action, e.g. throughpeace-keeping forces, instead of employing the con-troversial means of humanitarian intervention.

�... genocide continues to be anodious scourge on mankind...there are also at the presenttime many immediate issuesrelated to genocide which callfor the most urgentaction...(such as) the communalmassacres in Sri Lanka... someof these genocidal massacresarise out of struggles forgreater autonomy, and mightbe regulated by recognition ofthe right of self-determina-tion... there is a great need fordelegations of member stateswith a strong commitment tohuman rights, and non govern-mental organisations with con-sultative status, to continuetheir efforts to recall the UN toits responsibilities for interna-tional protection against geno-cide and consistent violationsof human rights. These effortswould include attempts to de-velop norms for humanitarianintervention, for the exercise ofthe right to self-determina-tion...�


Prof. Leo Kuper: Minority Rights Group Report: In-ternational Action Against Genocide, 1982

The Indian interventionin Sri Lanka

n June 1987, Indian vessels and air force enteredSri Lankan territory to deliver relief supplies to

the beleaguered Tamil civilians living in the Jaffnapeninsula. India, which includes the state of TamilNadu with 60 million Tamil speakers in the southand has pursued a policy of being the main regionalpower in South Asia, took this step after it had with-drawn its good offices in February 1987. This wasthe outcome of unsuccessful peace talks, such as the1985 Thimpu Talks under Indian sponsorship, andthe deterioration of the humanitarian situation in thenortheast in the beginning of 1987 due to a massivemilitary offensive of the Sri Lankan army.334

In the light of a massive influx of Sri Lankan Tamilrefugees into Tamil Nadu and strong domestic pres-sure, India decided to intervene to end the militaryactions in the northeast. Sri Lanka strongly objectedto the violation of its territory but agreed reluctantlyto peace talks when international actors, such as theUS, voiced no opposition against the Indian inter-vention since it was of a humanitarian nature.335

In July 1987, the Indo-Sri Lanka accord was signedwithout the participation of the LTTE which opposedthe agreement. The Accord provided for the pres-ence of Indian Peace Keeping Forces in the North-east which were to exercise security functions, dis-arm the Tamil militant groups and monitor electionsto the newly formed provincial councils.336 The IPKFwithdrew in March 1990, having failed to achieveany of the purported objectives. For the three yearsof its stay, it had been drawn into the conflict as itengaged in fighting with the hostile LTTE. Moreo-ver, serious human rights violations were committedby the IPKF. The Accord also sparked the insurgencyof the Janatha Vimukthi Peramuna (JVP), a nation-alist marxist movement, in the south which resultedin more than 20,000 casualties.337

With hindsight, India’s intervention has been a twoedged sword that failed to provide a long-term pre-vention of acts of genocide taking place. Although ithelped to prevent large-scale killings of Tamil civil-

I

ians by means of stopping the army’s military offen-sive, it was not able to substantially improve the situ-ation in the long-run for a number of reasons. Themanner of its intervention offended the Sri Lankangovernment, the Indo-Sri Lanka accord failed to re-spond to Tamil demands and its pro-government ori-entation aroused the hostilities of the LTTE, the man-ner of the Indian occupation sparked the oppositionof Tamil civilians, and the fact of its interventionfuelled Sinhalese fears of Indian dominance in SriLankan affairs. Although humanitarian in nature, theintervention failed to win the necessary support ofthe political participants in Sri Lanka. Regardless ofthe legality of the intervention, it demonstrated thelimits of such an action in the context of oppositionin the intervening country which was in India’s casedeeply bound up with the history and previous po-litical relations between the two countries. Againstthis background, it proved impossible to confine theintervention to a humanitarian role. Realising thatany lasting protection of the Tamils needed a politi-cal solution, India became involved in political con-siderations, using its military strength as a leverage.The need of any humanitarian intervention to solvethe causes of the conflict is its major dilemma sincethe intervening state is bound to be drawn into theconflict or has to withdraw without having achievedits aim.

The Indian intervention demonstrates the limits of aunilateral humanitarian intervention by a regionalpower. Multilateral actors, be it on a regional or aninternational basis, appear politically to be in a bet-ter position to intervene by virtue of their interna-tional mandate.

Nevertheless, India continues to play an importantrole in the Sri Lankan conflict. Tamil Nadu has beenand still is, at the time of writing, directly affected bythe massive refugee influx which began in 1995.There is thus an immediate impact on India whichmakes it aware of the humanitarian suffering causedby the war. Moreover, although it has proscribed theLTTE and appears reluctant to directly intervene inSri Lanka, India is still believed to be a key thirdparty in any attempt to mediate between the warringfactions in Sri Lanka due to its influence in the re-gion.338

334 see S.D.Muni: Pangs of Proximity, p.90335 see ibid. p.97336 see S.D.Muni: Pangs of Proximity, pp.104,105337 see E.Nissan: A Bitter Harvest, pp.17,18338 see Sri Lanka Monitor, No.111, April 1977, p.1


nforcement mechanisms concern not only the pun-ishment for the crime but most of all the preven-

tion of it. The UN Special Rapporteur on Genocideproposed a variety of measures which should beadopted to prevent genocide.339 He first of all stressedthe priority problem of preventing great loss of life.This should be achieved by means of internationalshort-term and long-term action which would needto relate to different stages in the evolution of a geno-cidal process:

- anticipation of its happening: which should be basedon a data bank of continuously updated informationas well as on further research into the causation ofgenocide, in particular psychopathic dehumanisation,and the development of public awareness of viola-tions of human rights.

- early warning: which would be based on indicatorsimplying evidence of an impending genocidal con-flict, such as mounting repression, increasing polari-sation, mass famine and exoduses of refugees. If sucha warning is received, the following steps should betaken: investigation of allegations; activating dif-ferent organs of the UN; making representations tonational governments and to interregional organi-zations for active involvement; asking for the sup-port of the international press in providing infor-mation; asking racial, communal and religious lead-ers to intercede; arranging the immediate involve-ment of suitable mediators and finally the possibil-ity of sanctions by means of economic boycott andselective exclusion from participation in interna-

Possible alternative enforcement mechanismsunder International Law,especially concerning the prevention of genocide.

tional activities and events.

- an international body to deal with genocide: whichshould be established under the Genocide Conven-tion as a new, impartial body of the highest calibre.Its task would be to investigate questions of fact con-cerning allegations of genocide and, in cases wherethere are strong and reliable indications that geno-cide was taking place, it should be empowered toinvite the State party concerned to submit its obser-vation with regard to the allegations of genocide anddesignate one or more of its members to make a con-fidential inquiry and to report to the committee ur-gently.

- an international human rights tribunal or court:as well as instituting universal jurisdiction as recom-mended in the previous study on genocide.340 It shouldbe noted that the institution of universal jurisdictionover cases of genocide is already lawful for any indi-vidual country as a matter of customary internationallaw and has been urged to be included as a matter oftreaty obligation under the Genocide Convention.341

The proposals of the Special Rapporteur would cer-tainly help in preventing further cases of genocide,but have, except for the foreseeable establishment ofthe International Criminal Court, not been put intopractice so far. It is one of the leading among severalcalls to seriously tackle the scourge of genocide towhich the international community has so far failedto respond adequately by taking appropriate action.

E

339 see UN Special Rapporteur 1985, pp.41-45340 see UN Special Rapporteur 1978341 see M.C.Bassiouni: Crimes against humanity in international criminal law, M.Nijhoff Publishers, Dordrecht, Boston, London, 1992, p.274 and L.R.Beres: Reason and Realpolitik in: I.W.Charny: Toward the understanding and prevention of genocide, p.314


Preventing future genocide: recommended strategies

342 see L.Kuper: Prevention of Genocide, p.20

n Sri Lanka, all the early indicators of a looming or already occur-ring genocide that have been identified by L.Kuper342 and the Spe-cial Rapporteur are to some degree present: mounting repression

against an ethnic group, increasing polarisation, summary executions,small-scale massacres, exodus of refugees and violations of humanrights. According to the Special Rapporteur, such a situation warrantsthe collection of updated data and the triggering of early warning mecha-nisms. The following recommended strategies will be modelled after theproposed strategies of the Special Rapporteur and will in particular fo-cus on legal mechanisms available to prevent acts of genocide. Whereappropriate, additional political measures will be recommended whichinevitably concern the continuing war.

Strategies denote the existing interna-tional mechanisms and available politi-cal avenues that might be utilised byvarious actors with a view to preventgenocide. In the Sri Lankan context, thelatter strategies are predominantly fo-cused on the peace process. There arenumerous state and non-state actors thatare currently trying to play a mediatingor facilitating role in the advancementof peace. However, as long as there islittle prospect of a ceasefire or lastingpeace in the near future, which appearsto be the case regarding the currentphase of the war, other means that arenot directly aimed at conflict resolutionshould be employed. The principal ac-tors in doing so are NGOs and individu-als who should set the internationalmechanisms in motion or exert politicalpressure. Ultimately, international bod-ies and individual states, especially SriLanka herself, have to take appropriateaction in order to prevent future geno-cide in Sri Lanka. Their role will be scru-tinised on the basis of their obligationsunder international law to prevent geno-cide.

The following actions should be consid-ered to prevent future genocide in SriLanka:

I

Tamil Refugees


UN High Commissionerfor Human Rights

UN Commissionon Human Rights


he UN High Commissioner for Human Rights isthe new focal point of the UN’s human rights ac-

tivities. One of his main tasks is the reaction to casesof serious human rights violations and prevention ofhuman rights violations. Concerning Sri Lanka, theHigh Commissioner should be called upon to con-duct a fact finding mission to Sri Lanka in order toinvestigate the allegations of gross human rights vio-lations. He should also be called upon to conduct anindepth study about the causes of the conflict in SriLanka with a view to prevent further human rightsviolations. This would in particular concern allega-tions of racial discrimination, which fall within themandate of the High Commissioner, as well as thequestion of the denial of Tamil self-determination asa major source of the genocidal conflict. On the ba-sis of his findings concerning gross violations of hu-man rights in Sri Lanka, including acts of genocide,the High Commissioner should be called upon to es-tablish a dialogue with the government with a viewto ensuring respect for human rights and, should sucha dialogue not result in an improvement of the hu-man rights situation, to activate the UN machinerywith a view to exert political pressure on Sri Lanka,possibly under threat of sanctions.

T he sessions of the UN Commission on HumanRights are an important forum where the inter-

national community can be alerted of the situation inSri Lanka. Under one of its agenda items, the Com-mission considers “Question of the violation of hu-man rights and fundamental freedoms in any partof the world”. This item enables NGOs that haveconsultative status with ECOSOC to issue statementsconcerning the situation in a particular country. On9 April 1997, 53 NGOs used this mechanism to is-sue a joint statement on the continuing occupation ofthe Tamil homeland by Sri Lankan forces. This state-ment specified a number of features of the currentmilitary operations which have in this study been iden-tified as possibly constituting acts of genocide. Sucha statement might result in the adoption of a resolu-tion by the Commission in which it expresses its view-point on the situation. The 53 NGOs urged the Com-mission to adopt such a resolution “calling upon thegovernment of Sri Lanka to cease all military op-erations against the Tamil civilian population, towithdraw the occupying forces from the Tamil home-land, to lift the blockade in the North-East, and toallow humanitarian aid.”

The Commission might also look into the situationin Sri Lanka under the 1235 procedure. This proce-dure has the advantage of being public and countryspecific. Should the Commission so decide, a thor-ough study of the violation of human rights and fun-damental freedoms in Sri Lanka might be conductedby an appointed Working Group or SpecialRapporteur. This procedure may finally result in aresolution condemning the situation in Sri Lanka anda report to the General Assembly. The utilisation ofthe latter options by the Commission depends almostentirely on political considerations. Given that theprocedure cannot be initiated by individuals andNGOs, it would be necessary for NGOs that haveconsultative status with the Economic and SocialCouncil to intervene with a view to urge the Sub-Commission or a member state to initiate the 1235procedure.

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The 1503 procedure:

343 see on the strategic use of the 1503 procedure: Amnesty International: Summary of Selected International Procedures and BodiesDealing With Human Rights Matters, August 1989, pp.13-15

he examination of communications which reveala consistent pattern of gross violation of human

rights in Sri Lanka, although being confidential,would enable the Sub-Commission on the Preven-tion of Discrimination and Protection of Minoritiesand the Commission on Human Rights to exert po-litical pressure on Sri Lanka. Should the Sub-Com-mission refer the situation to the attention of the Com-mission of Human Rights, the latter can determinepursuant to Article 6 of Resolution 1503:

a) whether it requires a thorough study by the Com-mission and a report and recommendation thereonto the Council;b) whether it may be a subject of an investigationby an ad hoc committee to be appointed by the Com-mission which shall be undertaken only with theexpress consent of the State concerned and shall beconducted in constant co-operation with that Stateand under conditions determined by agreement withit.

The possible investigation into allegations of humanrights violations on a large-scale, including genocide,might result in the activation of other UN bodies,such as the Economic or Social Council or the Gen-eral Assembly. It has certainly the potential of bring-

T ing the case of Sri Lanka back onto the UN agenda.In order to be most effective, a communication, whichshould be sent to the UN Secretary General in careof the Human Rights Centre, Geneva, should specifythe allegation of genocide. However, given the hugenumber of communications, the overriding politicalconsiderations prevailing in the UN Human RightsCommission, the confidentiality and slowness of theprocedure in cases in which it is initiated, and thepossible unwillingness of the UN Human RightsCommission to act effectively, its prospect of result-ing in swift and adequate UN action might be lim-ited.343

A communication alleging acts of genocide shouldclearly identify the author, should be objective in itscontent and should be as clear and specific as possi-ble regarding allegations of violations of fundamen-tal rights. Moreover, domestic remedies need to havebeen exhausted in relation to the acts complainedabout unless such a requirement was futile, i.e. be-cause of the existence of impunity for members ofthe security forces and evidence that successful pros-ecutions are not forthcoming. Thus, utilising the 1503procedure in order to prevent genocide in Sri Lankawould require a thorough, quasi-judicial communi-cation according to the relevant procedures.


The international community �The crimes committed by the SriLankan State against the Tamilminority - against its physicalsecurity, citizenship rights, andpolitical representation- are ofgrowing gravity for the interna-tional community. Other coun-tries across the world, whichhave had to shelter the thou-sands of Tamil refugees whohave fled and are still fleeingthe island, must increasinglybear the cost of the denial of thefundamental political rights ofthe Tamils of Sri Lanka... Reportafter report by impartial bodies- by Amnesty International, bythe International Commission ofJurists, by parliamentary del-egates from the west, by jour-nalists and scholars - have setout clearly the scale of the grow-ing degeneration of the politicaland physical well being of theTamil minority in SriLanka...everyone who possessesan elementary sense of justicehas no moral choice but to ac-quaint himself fully with theplight of the Tamil people. It isan international issue of grow-ing importance. Their causerepresents the very essence ofthe cause of human rights andjustice; and to deny it, debasesand reduces us all.�

David Selbourne, Ruskin College, Oxford


he international community acts through inter-national bodies, regional bodies and individual

states. It plays an important role in the preventionand occurrence of genocide. It can not only, by wayof public opinion, condemn or justify acts of geno-cide or initiate action through the UN or regionalbodies, but also contribute to the perpetration of actsof genocide by either facilitating or not adequatelypreventing them. The latter point concerns the armstrade and public foreign aid to Sri Lanka.

Since the 1980s, the condition of adherence to inter-national human rights standards by the receiving gov-ernment for the issuing of arms export licences, thegranting of foreign aid and the support in multilat-eral lending institutions has been identified as a lev-erage which might provide the means of preventinghuman rights violations.

Since the government of Chandrika BandaranaikeKumaratunge came into power, there has been achange in attitude towards Sri Lanka by a numberof states and the international media which promptedseveral countries, among them the UK, to lift theirban on arms trade with Sri Lanka and pledge an in-crease in foreign public aid to Sri Lanka. The ver-sion of the government concerning the resumptionof fighting in 1995, i.e. that only the LTTE is toblame and that the security forces are fighting a le-gitimate war against terrorism, has been by and largeaccepted. The commitment of the new governmentto human rights was apparently underscored by a

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number of measures to curb human rights violations.Although this account of the events is partly true, itignores the brutality of the warfare which is to alarge degree directed against Tamil civilians and hasbeen covered up by media censorship; the reportedineffectiveness of the measures adopted to improvethe human rights situation; and the causes of theconflict which go beyond a fight between a legiti-mate government and a “terrorist” group. In the lightof the continuing atrocities committed by both war-ring factions in Sri Lanka, any resumption or main-tenance of the arms trade or unconditional grantingof foreign aid would only help to sustain a situationin which acts of genocide are likely to occur.

The Sri Lankan Army has an arsenal of internation-ally manufactured weapons at its disposal with Chinabeing the main supplier. However, arms have alsobeen supplied by the US, the UK, Russia, theUkraine, Pakistan, the Czech Republic, Argentina,Italy and France.344 Sri Lanka has also received mili-tary training from a number of states, especially theUS and the UK and has also been supplied with tor-ture weapons.345

The continuing and renewed trade in arms, militaryservices and torture weapons (hereinafter referredto as arms trade) to Sri Lanka contributes to the per-petuation of the conflict, thereby providing the meansfor the commission of acts of genocide in the futurecourse of the war. This kind of trade also fails tooffer any meaningful solution to the continuing con-flict as the concerned governments fail to use thearms trade as a leverage to demand compliance withinternational human rights standards. Permittingarms trade to Sri Lanka does accordingly amount toa breach of Article 1 for states that are parties to theGenocide Convention.

Public foreign aid, predominantly by Japan, inter-national donors and Western European states, is re-ported to have been channelled for military purposesin Sri Lanka.346 It has thus been used by the govern-ment to sustain its war effort. Regardless of the le-gality of the war as such, the granting of foreign aidto Sri Lanka without any conditions attached to itconcerning the treatment of the Tamil people and theobservance of human rights fails to make a contri-bution to prevent genocide, thus arguably violatingArticle 1 of the Genocide Convention.

Given this background, NGOs should develop a co-ordinated policy which covers as many countries aspossible. The policy of each country in relation to

the arms trade and granting of foreign aid to SriLanka should be identified and scrutinised. A gov-ernment allowing the arms trade or granting foreignaid to Sri Lanka should be provided with the avail-able information on acts of genocide taking placewith a view to question the compatibility of such apolicy with the obligations that the state concernedhas under the Genocide Convention or customaryinternational law. On the basis of such an approach,the government should be urged to review its policyin order to stop the export of arms to Sri Lanka andgrant foreign aid only under the condition that grossviolations of human rights cease forthwith.

A similar strategy should be followed in relation tointernational donors, i.e. the International MonetaryFund and the World Bank, as well as regional tradeorganisations. An example is the European Commu-nity that has repeatedly stated its commitment toprevent human rights violations.347 In a cooperationagreement between the EC and Sri Lanka on 16 May1995, the respect for human rights was made an es-sential element of the agreement by the EC, althoughthe EC did not include the so-called Baltic clausewhich reserves the right to suspend the agreement inwhole or in part with immediate effect if a seriousbreach of its essential provision occurs. However,the EC clauses demonstrate that states and regionalbodies have mechanisms at hand with which theycan bring pressure on Sri Lanka to observe humanrights or face disadvantages. Again, the EC providesa good example of what these disadvantages mightconsist. It lists the following measures that may betaken in response to serious human rights violationsor serious interruptions of democratic process: al-teration of the contents of cooperation programmesor the channels used; reduction of cultural, scien-tific and technical cooperation programmes; sus-pension of high-level bilateral contacts; postpone-ment of new projects; refusal to follow up partner’sinitiatives; trade embargoes; suspension of armssales, suspension of military cooperation; suspen-sion of cooperation.

Individual governments and regional bodies, such asthe EC, should be urged to assess the human rightssituation in Sri Lanka, in particular regarding actsof genocide, with a view to determine whether theseriousness of the violations merit the imposition ofany of the above listed measures or other measuresto exert diplomatic pressure.

Another option that should be proposed to the enti-ties mentioned above is to tie the granting of aid and

4949 49 49 49


344 see SIPRI: Yearbook 1993, p.481, 514 and Yearbook 1995, p.428345 see for the UK: Amnesty International: Made in Britain: How the UK makes Torture and Death its Business, February 1997, pp.l72,73346 see H.J.Whall: Self-Determination,pp.330,331347 see European Parliament: Annual report on human rights throughout the world in 1995-1996 and the Union’s human rights policy, Committee on Foreign Affairs, Security and Defence Policy, Rapporteur: Mrs. Catherine Lalumiere, 28 November 1996, DOC/EN/RR/314/314706348 see on the ongoing subject of peace talks: Sri Lanka Monitor, No.111, April 1997

the sale of arms to the ratification of the OptionalProtocol of the ICCPR. This would enable an inter-national body to monitor the human rights practicesof Sri Lanka. A decision to grant aid or sell arms toSri Lanka could then be based on the findings of theHuman Rights Committee concerning the occurrenceof human rights violations. The comments of theHuman Rights Committee and the reports of the

Working Group on Disappearances, the SpecialRapporteur on Torture and the Special Rapporteuron Arbitrary and Summary Executions should alsobe taken into account in reaching such a decision.

Moreover, suitable international bodies or individualcountries, should be urged to become involved as athird-party mediator to the conflict.348



Recommendations

Sri Lanka:

Based on the findings of this study, the Tamil Information Centre (TIC) urges the govern-ment of Sri Lanka to comply with its obligations under the Genocide Convention, in par-ticular Article I, V, and VI. This obligation concerns measures to be taken by Sri Lanka toprevent and punish genocide. The TIC calls upon the Sri Lankan government,

- to tackle the causes of genocide, i.e. the denial of the right to self-determination, economic,social and cultural discrimination and dehumanisation with a view to address Tamil de-mands legitimised by their right to self-determination, particularly concerning a substantialdevolution of power, the end of colonisation, the removal of discriminatory laws as well asthe end of discriminatory practices in the field of language, religion, culture, education andeconomic development, the lifting of the economic blockade and various Emergency Regu-lations which adversely affect health and freedom of communication of the Tamil popula-tion, the repeal of all laws violating fundamental rights and the combating of all forms ofracism in Sri Lanka;

- to seek a peaceful solution to the current conflict on the basis of the Tamil people’s right toself-determination which, as the 53 NGOs stated before the UN Commission on HumanRights in April 1997, requires the cessation of all military operations against the Tamilcivilian population and the withdrawal of the occupying forces from the Tamil homeland;

- to adopt measures to prevent arbitrary killings, extrajudicial executions, disappearances,torture, rape and arbitrary arrest and detention. These measures should be implementedalong the lines of the recommendations of the Human Rights Committee and Amnesty Inter-national, particularly by repealing the PTA and the ERs and by improving judicial remediesavailable to Tamils targeted by security forces. Furthermore, the economic blockade, mediaand press censorship as well as curtailment of movement should be done away with sincethese measures contribute to the perpetration of acts of genocide;

- to comply with its obligations under Article I and VI of the Genocide Convention to chargethe perpetrators of acts of genocide and try them before the competent domestic courts. Thisrequires the prosecution of anybody suspected of having committed acts of genocide. Thisdoes not only apply to recent cases but to any acts of genocide committed in the past in SriLanka. It would also involve the repeal of the existing indemnity acts and the removal ofexisting obstacles to prosecution, be they of a legal, political or practical nature.

�For decades, younger gen-eration of Tamils had watcheda succession of Sinhalese-dominated governments con-spire to undermine Tamilcultural heritage, linguisticrights, traditional homelands,and educational and employ-ment opportunities...all in thename of Sinhala nationalismand majority rule. They hadwatched their own leadershipsuffer defeat upon humiliat-ing defeat in Parliament in afutile effort to secure at leastequal rights or limited au-tonomy.

�The only way to keep theSinhalese lion (Sinha) at bay,they decided, was to becometigers and forcibly wrest fromSri Lanka a separate nation,Eelam, where Tamils wouldenjoy the majority or die.�

US Committee for Refugees, 1991

Tamil Information CentreThamil House

720 Romford RoadLondon E12 6BT, (UK)

Telephone: + 44 (0) 181 514 6390Fax: + 44 (0) 181 514 0164

E-Mail:[email protected]

TAMIL INFORMATION CENTRE

The Tamil Information Centre wasestablished in 1981 to provideinformation concerning all aspectsof Tamil life and culture.The TIC also facilitatesand encourages participationof people involved with humanrights and humanitarian issues inSri Lanka and provides facilitiesfor the general publicto be in touch with developmentsaffecting the Tamil people of SriLanka and new emerging issues.It promotes public understandingof human rights issues throughinformation and educationalprogrammes. The Centre’sDocumentation Unit is a majorresource for researchers,practitioners and the media.The TIC is committed to humanrights and community developmentand dedicated to the causeof understanding and cooperationbetween the different communitiesin Sri Lanka.

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