JUSTICE IN SRI LANKA MUST INCLUDE INVESTIGATIONS OF GENOCIDE ALLEGATIONS
Seven years ago this month, a quarter century of armed conflict in Sri Lanka reached its violent conclusion. The Government of Sri Lanka’s take-no-prisoners approach to defeating the Liberation Tigers of Tamil Eelam (LTTE), also known as the “Tamil Tigers,” was accompanied by massive violations of international humanitarian law, international human rights law, and international criminal law. From January to May 2009, the military killed at least 40,000 to 70,000 Tamil civilians and also targeted Tamil women with rape and sexual violence. However, there have been no UN recommendations to investigate this onslaught as genocide, despite evidence of genocidal intent. The silence on both genocide and the crimes unique to women flows from the politicization of genocide and perpetuates gender discrimination and crimes. Next month, the topic of reconciliation, accountability and human rights in Sri Lanka is on the UN Human Rights Council’s agenda. The time is now for the international community to call for investigations into genocide and to use the specific protections and obligations under genocide law to redress the ongoing harms against Tamil women, including rapes and denial of their reproductive rights.
The war started in “Black July” 1983, when the Government of Sri Lanka sponsored violence against Tamils across the country. For about one week, in a classic hallmark of genocide, the Government provided voter registration lists identifying Tamils by ethnicity and incited Sinhalese mobs to kill and rape their Tamil neighbors and to destroy their homes and businesses. Over two decades later, the war ended as it started, with Government forces killing and committing sexual and gender-based violence against the Tamils. All of these crimes were seemingly committed with the intent to destroy the Tamil population, in whole or in part—a crucial component of genocide.
The dolus specialis, or special intent, for genocide is challenging to prove, but circumstantial evidence can help make a case for genocidal intent. In fact, such evidence was used by the International Criminal Tribunal for the former Yugoslavia (ICTY) to determine the commission of genocide in Srebrenica. The ICTY found the targeting of Bosnian Muslims in Srebrenica, and the killing of their men based on their identity as indicative of the Bosnian Serb force’s genocidal intent to destroy a substantial part of Bosnian Muslims as a group.
A similar corralling, besieging, and intentional identity-based killing and injuring of civilians took place in Sri Lanka. As part of its attacks, the Government inflicted conditions to bring about the destruction of the Tamil population in the Vanni by deliberately understating the Tamil civilian population in order to limit necessary food and medical supplies going into the area. Toward the end of the war, the Government encouraged Tamil civilians in the northern Vanni area to go to “No Fire Zones” (NFZs), assuring them of their safety, and then deliberately shelled the NFZs. Many dead Tamil women bore signs of rape and sexual mutilation, including with knives, bottles, and sticks. It is well-established in international criminal law that rape can be a constituent element of genocide.
While both Tamil men and women were targeted for death in the shrinking “safe zones” in the Vanni, women have been violated for decades by successive Governments’ measures to prevent Tamil births, which may amount to genocide. The denial of Tamil births as a policy dates back to the 1990s, when doctors would pay poor Tamil tea plantation workers to participate in “family planning”—a disguise for non-consensual tubal ligations. Under President Mahinda Rajapaksa’s Government (2005–2015), there were wartime reports of pro-Government doctors performing forced abortions on Tamil women under the pretense of regular check-ups. In the recent post-war environment, Government health workers have forced Tamil women to accept surgically implanted birth control. Thus, Tamil women suffer women-specific harms against their procreation capacities in addition to the attacks against both sexes. All of these crimes should be investigated as genocide to deter and stigmatize the Governments’ genocidal policies, including its long-standing practice of forcing abortions, sterilization, and birth control onto Tamil women.
The pervasive threat of rape, in and outside detention settings, further exacerbates conditions of life for women. Notably, although security forces torture both men and women detainees with rape and sexual violence, women may be at higher risk outside detention. A woman’s vulnerability increases if she is in an internally displaced persons camp, if she is one of 90,000 Tamil war widows, and if she is ex-LTTE. The fear of sexual violence has greatly disempowered Tamil women, many of whom are too afraid to exercise their human rights, including their rights to mobility, free expression, and education. The present situation of Tamil women is in stark contrast to their lives under the LTTE, who, although also accused of war crimes and crimes against humanity, had integrated gender equality as essential to the Tamil people’s liberation struggle.
Tamils had hopes for change in January 2015, when the war-winning President Rajapaksa was voted out of office. Although current President Maithripala Sirisena has made progress in some areas, he has not fulfilled his commitments to the UN Human Rights Council in September 2015 to have international involvement in accountability processes. In fact, he has backtracked on his word and has made it clear that he will not allow international participation in Sri Lanka’s mandated justice mechanisms.
The lack of domestic political will and the persistent politicization of the situation in Sri Lanka and of the word “genocide” have relegated Tamils, particularly women, to subordinate positions in society, where their every move is monitored by the same people who committed atrocities against them. Under international law, once there is a serious risk of genocide, states and the international community have a responsibility to prevent and prosecute the genocide. Instead, Tamils as a people were deprioritized by the international community, particularly the UN, whose withdrawal from the warzone around September 2008 effectively green-lighted the military’s slaughter and rape in the absence of international observers. The UN’s “systematic failure” in Sri Lanka reflected its failure to integrate lessons from Rwanda, and the UN unfortunately continues to shy away from discussions about genocide.
It remains to be seen how much the UN has learned from Sri Lanka, as it continues to give the Sirisena Government second chances that, after 17 months of inaction in office, it no longer deserves. President Sirisena has only demonstrated his unwillingness to implement UN-recommended accountability mechanisms for either the mass atrocities of 2009 or ongoing human rights violations under his regime.
The UN cannot fail the Tamils in Sri Lanka again. Real justice for Tamils must include investigations into and prosecutions of genocide crimes, including ongoing torture, rape, and gender-based violence committed with genocidal intent. In the absence of justice, police and security forces can continue raping with impunity and contributing to the destruction of the Tamil population. The systematic institutionalization of rape within the security forces necessitates an investigation into the existence of genocidal intent.
During its next session, the Human Rights Council should demand that Sri Lanka fulfill its commitments from the September session, particularly on internationalized justice. Furthermore, the Human Rights Council should recommend that international prosecutors investigate allegations of genocide, including the ongoing sexual and gender-based violence committed with genocidal intent. The Human Rights Council should stress that the justice process must be founded on inclusive inputs from women on prosecutorial strategy, remedies, and reparations. Finally, the Human Rights Council should urge the Security Council to refer the situation in Sri Lanka to the International Criminal Court for investigations and prosecutions of war crimes, crimes against humanity, and genocide. Given the circumstantial evidence in Sri Lanka, an international or hybrid court investigation into genocide could very well make an affirmative finding.
Until there is meaningful justice for wartime and ongoing crimes, Tamils as a whole will suffer and women will be further disempowered and violated. Against the backdrop of women-specific and seemingly genocidal harms, women are entitled to the significant protections against genocide, including prosecutions, remedies, and reparations. Internationalized trials that include investigations into genocide would acknowledge the crimes against Tamils and contribute to remedying the harms done to them. The UN and international community cannot turn a blind eye to injustice any longer and must act immediately to ensure accountability and restore normalcy to the war-ravaged Tamil victims of genocide.
Anjali (Anji) Manivannan is a Legal Fellow at the Global Justice Center and holds a J.D. from NYU School of Law. Previously, Anji interned for Human Rights Watch, People’s Watch in India, Badil in the West Bank, and People for Equality and Relief in Lanka. She has published on gender inequalities in access to information about Ebola, sexual violence against men in armed conflict, and press freedom as a vehicle for reconciliation in post-war Sri Lanka.