1) The Sri Lankan State is not ethnically neutral:
The Sri Lankan State conducted itself like a cultural warhead of the Sinhala-Buddhist majority community. The government of the State, in this case Sri Lanka, has not only committed international crimes against the Tamils but also failed to protect them for a long period of over sixty years, since independence in 1948.
In fact, most of the serious crimes in question were perpetrated by the state apparatus.
“Accountability also requires official acknowledgment by the state of its role and responsibility in violating the rights of its citizens when that has occurred.” UN Secretary General’s Panel of Expert’s Report on Accountability in Sri Lanka (March 31, 2011).
2) The Sri Lankan judiciary is not ethnically neutral:
The Sri Lankan judiciary is always subservient to political leadership when it comes to abuses against Tamils and that is in evidence in all of the past Commissions of Inquiry. Even under a Tamil Chief Justice in 1983, no prosecution was ever brought against anyone for the mass killings of Tamils in the 1983 pogrom.
“…based on a review of the (Justice) system’s past performance and current structure, the panel has little confidence that it will serve justice in the present political environment.”UN Secretary General’s Panel of Expert’s Report on Accountability in Sri Lanka (March 31, 2011).
From the mass killings of Tamils starting in 1958 to date, justice has not been served. The courts have proved inadequate and successive governments have appointed ineffective inquiries under international pressure that have not once led to the punishment of perpetrators. (Amnesty International, “Twenty Years of Make Believe: Sri Lanka’s Commissions of Inquiry,” 11 June 2009).
3) There is no political will in Sri Lanka to provide Justice for Tamils:
Former Defense Secretary Gotabhaya is safe as long as he is in Sri Lanka: Deputy Justice Minister of Sri Lanka.
4) The domestic 2010 Lessons Learned and Reconciliation Commission (LLRC) has not delivered Justice to Tamils:
“…the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism.” UN Secretary General’s Panel of Expert’s Report on Accountability in Sri Lanka (March 31, 2011).
The involvement of the international community in overseeing a domestic inquiry also ended up in failure, when the International Independent Group of Eminent Persons (IIGEP) resigned in March 2008. (Human Rights Watch - Sri Lanka: Domestic Inquiry into Abuses a Smokescreen - October 27, 2009).
Given our long experience with Sinhala Buddhist hegemonic institutions that dominate Sri Lanka’s politics, we have no faith that members of the Sri Lankan armed forces will ever be prosecuted locally for any wrong doing. International supervision of any domestic mechanism will only serve to waste time. (Jaffna University Professors in a memorandum to UN on February 24, 2015).
5) TheChange of Guard in Sri Lanka will not result in a Change of the Institutionalized Impunity:
Even though the President has been changed, the political environment vis-à-vis Tamils, has not changed.
Several former military personal, including the military commander at the end of the war General SarathFonseka, are in senior positions in the current government.
Except emergency regulations and the active use of paramilitary proxies, all of the factors, notably the Prevention of Terrorism Act (PTA), are still in existence even after the change of guard in Colombo.
The fact that the military apparatus is still intact and the militarization of the NorthEast continues perpetuates fear among the Tamils, and has a deep impact on day to day activities there. Therefore, it is unlikely that victims/witnesses will be truly independent before a domestic or hybrid tribunal.
6) The Potential Culpability of the New PresidentSirisenawill not be Conducive for a Domestic or Hybrid Mechanism:
President Sirisena served as the acting Defense Minister during the period at the end of the war, when large numbers of Tamils were killed.
“Sirisena is hardly a beacon of hope for the Tamils: he was acting as defense minister in the nightmarish final fortnight of the war.” – Economist, January 3rd, 2015.
7) Sri Lanka does not have Criminal Provisions for War Crimes, Crimes against Humanity, and Genocide:
Because Norway did not have laws against certain Crimes against Humanity, the International Tribunal for Rwanda (ICIR) would not transfer Bagarasaga to Norway since prosecuting the defendant as a common criminal would trivialize his crimes.
8) The pursuit of Justice Versus the Pursuit of Peace is a False Choice.
“Those who committed the genocidal attacks during the Second World War are being traced and prosecuted even today. That shows that the world’s expectation and reflection is - Justice should not be denied at any cost.” Justice C.V. Vigneswaran –
Chief Minister, Northern Provincial Council. In conclusion, we strongly urge the United Nations to refer Sri Lanka to the International Criminal Court or to establish a similar credible International Judicial Mechanism for investigation and prosecution of war crimes, crimes against humanity and genocide committed against the Tamil people by the Sri Lankan State itself.
Thank you for your kind attention and immediate action.