SRI LANKA: Realities Of An 'International Investigation'

Parasaran Rangarajan for Salem-News.com-Nov-28-2013

It is pertinent that anyone calling for an international investigation do so under the powers of Article 99 of the UN Charter routing this through the UNSG instead of the UNHRC for more effective action and avoiding political factors !C"#"$%"& Sri #an'a( ) It is important to point out that no*ody should have any illusions of where an +international investigation+& if conducted through the U N Human Rights Council !UNHRC(& is leading to If an

international investigation is commissioned *y Mahinda Rajapaksa has opted for an internal the UNHRC as promised *y $arch ,-./& it investigation into alleged war crimes committed by Sri does not mean the Ra0apa'sas will *e ta'en to Lankan troops during the conflict with the Tamil Tiger court the ne1t day 2ust a normal murder trial rebels [EPA] can ta'e years so you can imagine a trial for genocide and how much evidence will need to *e presented However& there are still some 3uestioning if what happened in Sri #an'a in ,--9 was indeed a genocide confusing the terms with war crimes& crimes against humanity& ect It is important to interpret that genocide is a su*)category of crimes against humanity or even its own category falling under the larger scope of a war crimes If you refer to Section ,4. !page 56( of the U N report which referred to what happened as 7e1termination8 and under that section& it states9 "The credible allegations support a finding of the crime of humanity of extermination in so far as the conditions imposed on the civilians in the final months of the No Fire Zones were calculated to bring about the destruction of a significant part of the civilian population." Under Article : !,( !*( of the ICC Statue +e1termination+ includes9 7Intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of the population . ;his is indeed +genocide+ if we follow Resolution ,5-& Article , of the Genocide Convention of .9/6 which states the definition as9 "Intent to destroy in whole or in part, a national, ethnical, racial or religious group".

Note that there is the intent to destroy in all three legal classifications <urthermore& if we refer to the article 6 Stages of Genocide written *y =rof Gregory Stanton and cited *y scholars in the ad)hoc >hmer Rouge tri*unals& he e1plains how genocides occur in war& hence are war crimes& and 7e1termination8 is the :th stage of genocide He also e1plains the last phase is denial which many are stuc' in& including the government of Sri #an'a If the UNHRC is utili?ed for *ring the perpetrators of genocide to 0ustice& we can e1pect the organi?ation to esta*lish a +Independent International Commission on Sri #an'a+ or some similar *ody which will conduct an investigation into these allegations with a time frame of minimum .),@ years !Ref9 Syria and >orea( <urthermore& a vote *y the UNHRC will need to ta'e place to implement such a commission where new mem*er states such as China will use its political powers to re0ect such a demand However& if an international investigation is commissioned *y the UNHRC as e1pected with western pressure& evidence will surface that Ra0apa'sa and his *rothers were involved in the genocide as these commissions are not esta*lished if there is not enough evidence *y convention After this evidence is presented and referred to the Security Council to esta*lish a tri*unal& only then will the International Criminal Court !ICC( will issue an arrest warrant where a trial will ta'e place ;he total process of international 0ustice through the UNHRC could very well ta'e 4@ years which is why we need +Article 99+ of the UN Charter invo'ed *y the U N Secretary General !UNSG( immediately which was recommended *y the UN "ffice of #egal Affairs& the UNSGAs own legal team& at the time of the genocide If Article 99 is used& a fact finding mission can *e set up instantly *y the UNSG which will lead to referral to the UNSC who may then re3uest the International Criminal Court !ICC( to issue an arrest warrant for the Ra0apa'sas much 3uic'er than utili?ing the UNHRC which e1tends procedural re3uirements to political factors when this is a matter of law& not politics ;his call has *een reinforced *y man such as U S Congressman Steve Briehaus in ,-.- who re3uested U S Bepartment of State to urge the UNSG carry out the international investigation rather than the UNHRC for these very reasons& once again which may *e done under Article 99 It is important to note that Article 99 has *een used on only three occasionsC Congo in .95-& in .9:9 during in Iran during the U S Dm*assy hostage situation& and in .969 in #e*anon $any have pointed out that it is too late for the UNSG to utili?e Article 99 since the situation is no longer genocidal on the ground as it was in ,--9& therefore no longer a threat to 7international peace or security8 However& failure to act in accordance with the 7Responsi*ility to =rotect8 doctrine *y the UNSG in ,--9 cannot *e an e1cuse to protect the ;amils of Sri #an'a today and invo'ing Article 99 today where 7coercive population control8& a form of ethnic cleansing and genocide is ta'ing place among other atrocities In fact& the 7UN <ollow)up Report to the Secretary)GeneralAs Internal =anel of UN Action on Sri #an'a8 issued 2uly 9th& ,-.E compared Sri #an'a to the Rwanda genocide and states that the UN will move towards an 7Article 99 attitude8 ;he report also admits a 7systematic failure8 in ,--9 in failure to invo'e this legal instrument At the very least& these recommendations should *e heeded to now to avoid further such failures in the case of Sri #an'a ;herefore& it is pertinent that anyone calling for an international investigation do so under the powers of Article 99 of the U N Charter routing this through the UNSG instead of the UNHRC for more effective action and avoiding political factors as once again& this is a matter of human rights& not a matter where the economic or political interests of one country should play a factor ;his genocide was committed in

,--9 and optimistically& Ra0apa'sa and his *rothers can *e *rought to 0ustice *y ,-.4 through using Article 99 and with consent and recommendation to the ICC from the Security Council or a resolution esta*lishing a tri*unal ;he consent *y the western states is there in the UNSC *ut it is e1pected China will oppose and a 3uestion mar' remains over Russia ;hese are the realities of the calls for an international investigation Fhat is in the interests of furthering the ideals of international criminal and human rights law to hold genocidal governments accounta*le would *e to interpret Article 99 to allow the UNSG to recommend 0urisdiction to the ICC although this is not e1pressly written in the Rome Statute and esta*lish an ad) hoc tri*unal to preserve international peace and security on his own cogni?ance ta'ing into account the reports of the situation =essimistically& through successful use of the UNHRC& a conviction date of ,-,- is possi*le *y then which =resident Ra0a'apsa may die of natural cause since he is 5: years old right now *ut nevertheless& the other Ra0apa'sa *rothers who also participated in this genocide will *e held accounta*le and the 7authoritarian8 regime& as descri*ed *y U N Human Rights Commissioner $s Navi =illay& will *e removed which is most important #et it *e 'nown on this HeroAs day& that no matter long how it ta'es& we never gave up and never will give up after more than 5- years of struggle and hundreds of thousands of lives lost ;amil Delam will *e *orn Parasaran Rangarajan: !itor-in-"#ief for t#e International La$ %o&rnal of Lon!on an! 'e'(er of t#e legal !e)art'ent of t#e Pri'e *inister's Offi"e of t#e +,+ -