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The UNHRC Resolution: A critical interrogation

“The struggle for liberation sharpened only because the people realized that they were being taken for a ride. Those same realizations helped keep our struggle on track. If these are to be blunted we will become a race prepared to give up its ideals in return for concessions.” – Taraki Sivaram, former senior editor of TamilNet

Five years after the international community, the co-chairs to the peace process, and the United Nations failed to stop Sri Lanka’s 2009 genocide, Tamils appear to finally be upon a new beginning in the decades long struggle for justice. The US sponsored resolution passed an intense session of the United Nations Human Rights Council (UNHRC) last week. The motion carried and supposedly sets up an international investigation into wartime abuses.  The fact that some Tamil activists lobbied for this resolution at the Human Rights Council does not preclude a closer, critical, and more constructive interrogation. The question remains, how exactly will the resolution advance Tamil freedom in the international arena?

A political solution to end Tamil genocide

A cursory glance at the text of the resolution tabled by the United States leaves something conspicuously absent. Besides a vague insinuation to the Sri Lankan campaign to “combat terrorism,” there is not a single mention of the word ‘Tamil’ (not even once). Instead, the resolution declared “its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka.” Upon closer scrutiny, minorities and religious groups are mentioned, but still no mention of the unique oppression Tamils suffer.

Tamils qualify as a Nation of people, not a minority group, with their own identity, language, culture, history and an identifiable territorial homeland. So any reference to minorities in the UNHRC resolution is irrelevant to the Tamil Question. Indeed, the Tamil People today resist Sri Lanka’s attempts to make them into a scattered minority across their homeland, for the struggle has always been about the survival of the Tamils as a Nation. There are minorities in the island like the Berghers, the mixed descendants of Europeans. What makes us, the Tamils, the target of genocide is that we are a nation with a specific claim to a homeland in the NorthEast. Of course, such arguments are nothing new to the policy makers behind the resolution. Although political will to recognize Tamil Nationhood leaves much to be desired, it is a prerequisite to resolving the island’s conflict.

For over 60 years Tamils have been oppressed by a state structure, which systematically subordinated them through genocidal violence and exclusionary policy. Thus, any genuine solution to the conflict must dismantle the unitary state structure of Sri Lanka. A regime change, it is believed by US policy makers, will oust Rajapaksa to help bring in a less obstinate government, and regional stability in the Indian Ocean.

But, regardless of which Sinhala leader controls Colombo, Tamils are structurally and systemically dominated by a state, which maintains all monopoly over violence, resources and governance. From the 1983 Black July riots to the 1993 Chavakachcheri bombing; from the 1999 Madhu Church massacre to the 2009 Mulliyvaikkal genocide, every single government committed violations of international law like genocide and ethnic cleansing.

The political solution envisioned by the UNHRC resolution seeks the full implementation of the 13th amendment coupled with the full devolution of powers to the Provincial Councils. Devolution means that unitary power in Colombo hands down power to the provincial governments, but this devolved power can be taken back by Colombo. Under the 13th amendment to the Sri Lankan constitution, the Colombo government monopolizes power over law and order, land issues, and education. The Tamil National Peoples Front (TNPF) led by Gajendrakumar Ponnamablam, and the Tamil Civil Society Forum (TCSF) headed by the Bishop of Mananar Rayappu Joseph reject the 13th amendment as a basis to resolving the conflict. Even the Tamil National Alliance in its Northern Provincial Council election manifesto rejected the 13th amendment as the starting point for a negotiated settlement.

Navi Pillay, Human Rights, and International Humanitarian Law

The resolution gives the UN Human Rights Chief Navi Pillay the mandate to investigate “human rights violations and other related crimes.” Although they are complementary, human rights law and international humanitarian law address different situations. Human rights law is concerned with the protection of individual rights, while international humanitarian law deals with states and armed actors in war.

Human rights problems can be rectified in a more liberal-democratic Sri Lanka with, for example, the leader of the opposition United National Party Ranil Wickramasinghe, a darling of the western world. But, human rights law cannot deal with the structural nature of Sri Lanka that privileges the Sinhala nation to violently subjugate the Tamils.

In a private meeting, a senior US official told a Tamil activist that it is US policy for the UNHRC to only deal with human rights. Thus, the Human Rights Council will never examine the Sri Lankan state itself—or its prosecution of war against the Tamil Nation—as the primary problem.

A Report is Not a Commission of Inquiry

It may be possible to use the High Commissioner’s investigation to subversively unearth the sophisticated nature of Sri Lanka’s protracted genocide. Be that as it may, the UNHRC resolution calls upon the High Commissioner to provide a report one year from now. In contrast to a report, an international commission of inquiry is a very different thing.

For example, the International Criminal Tribunal on Yugoslavia (ICTY) created by UN Security Council Resolution 827 possessed the power to criminally prosecute offenders of international law. In the case of the ICTY, the tribunal would lay 66 charges of grave breaches of the Geneva Conventions, 22 charges of violations of the law and customs of law, 24 charges of crimes against humanity, and 2 counts of genocide.

On the other hand, an example of an internationally mandated report is the Goldstone Report. After the Israeli siege on Gaza in 2008 the Human Rights Council commissioned a report by South African Jurist Richard Goldstone. Goldstone found Israel guilty of war crimes. Yet, not a single Israeli political or military leader has been criminally charged in accordance with international law. Meanwhile, Israeli human rights violations go unchecked while settlements destroy the Palestinian homeland recognized by countless UN resolutions.

In an interview with The Sunday Leader, the TNPF’s Ponnabalam affirms, “Giving the responsibility to the High Commission to investigate is actually the weakest form of investigation that can take place under the UN system. There needs to be a Commissioner of Inquiry with a mandate given by the Council.” Sadly, the US resolution, like the two motions that came before it in previous years, continues to call upon the accused Sri Lankan government “to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law.”

If not Geneva where do Tamils find justice?

Any resolution at the UNHRC that supposedly deals with Tamil suffering is impotent unless it attempts to immediately stop the genocide. The armed struggle is over but the political struggle to establish Tamil freedom must be won. As a new generation of activists demanding the restoration of Tamil Sovereignty, we must begin to explore avenues outside of the narrow political objectives and frameworks imposed upon us by the Geneva narrative. Amongst us, we are students, writers, researchers, artists, lawyers, academics, and community organizers. We need to creatively explore alternative strategies like economic and diplomatic boycotts, travel restrictions, and criminal charges based on the principles of universal justice. We must press for a UN transitional mechanism to arrest the ongoing genocide, while pushing for a UN sponsored referendum to ascertain the democratic aspirations of Eelam Tamils.

The time is now for action. Ground sources predict that in two to three years our homeland will be forever changed—scarred by army camps, checkpoints, military businesses, and Sinhalese settlements. Five years after the genocide, we continue to demand justice at the corridors of power.  Perhaps, it’s time to get off the ride, and take matters into our own hands.

*Lead photo by Jean-Marc Ferré-UN, Geneva

© JDS

Krisna Saravanamuttu is the Advocacy and Research Director of the National Council of Canadian Tamils. You can follow him on Twitter: @KrisnaS85