International Commission of Jurists Review, December 1983

INDICTMENT AGAINST SRI LANKA
The Charge is Ethnic Cleansing

INTERNATIONAL COMMISSION OF JURISTS -
THE REVIEW, December 1983, pages 20-26

"..The impact of the communal violence on the Tamils was shattering. More than 100,000 people sought refuge in 27 temporary camps set up across the country. Commenting on the violence Neelan Tiruchelvam, a Tamil lawyer and member of Parliament, stated, "the latest round of violence has put the finishing touch to the eradication of the Tamils. This time the Tamil professional and entrepreneurial class has been destroyed". A government spokesman has denied that the destruction and killing of Tamils amounted to genocide. Under the Convention on the Prevention and Punishment of the Crime of Genocide, acts of murder committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such are considered as acts of genocide. The evidence points clearly to the conclusion that the violence of the Sinhala rioters on the Tamils amounted to acts of genocide."

Sri Lanka

At the end of July 1983, Sri Lanka witnessed its worst outburst of ethnic violence since independence, causing severe loss of life and property to the Tamil minority*. This did not come as a surprise to those who have been following events in the country.

The October 1982 Presidential election and the referendum held in December to extend the life of the Parliament (see ICJ Review No. 29 for comments) were followed by an increase in the activities of the small Tamil terrorist organisation called the 'Tigers'. A Sri Lanka government publication lists 16 instances of violent acts by the Tigers between October 1982 and the beginning of July 1983, which includes the killing of eleven persons belonging to police, army and navy.

With the growing failure to prevent the terrorists' activities, the government started using the Terrorism Act more widely. For example, on November 11, 1982, 30 people were arrested. These included 8 priests, 6 belonging to the Catholic church and two to the Anglican and Methodist churches. A university lecturer and his wife were also arrested on the same day. On November 17, two of the Catholic priests, Fr. Singarayer, Fr. Sinharasa and the university lecturer Mr. Nityanandam and his wife Mrs Nirmala Nityanandam were charged under the Prevention of Terrorism Act. They were accused of withholding information about terrorists and habouring them. (The other six Catholic priests were released.)

Fr. Singarayer in a letter addressed to the President of the Bishops Conference of Sri Lanka stated that he was tortured and made to sign statements.

In the predominantly Tamil districts protests were organised for the release of the priests and others. On 10 December a protest fast and a prayer meeting were organised at St. Anthony's church at Vavunia. After the prayer meeting, the gathering was attacked by the army, who even entered the church to assault some of the people. This led to further protest in the form of hartal (closing of shops and business establishments) in the town of Vavunia.

The beginning of 1983 saw a continuing escalation of the violence by both sides, the Tamil terrorists and the Sri Lankan army. In January a U.N.P. organiser was shot dead at Vavunia by the terrorists. In February a police Inspector and a driver were shot dead. In March an army vehicle was ambushed and five soldiers were injured.

The counterviolence by the army and police included an attack in March on a refugee settlement helped by a voluntary organisation called the Ghandhiyam Society.

The Ghandhiyam Society, which was formed in 1976 as a social service organisation, had been involved in rehabilitating the refugees of the 1977 and 1981 racial riots. These refugees had fled from the southern parts of Sri Lanka and had settled down in the existing Tamil villages in and around Trincomalee district. The Ghandhiyam organisation with the help of church agencies from West European countries had been helping these refugees to build houses, dig wells, and use better methods of cultivation, and was conducting health and education programmes.

One such village settlement in Pannakulam in Trincomalee district was attacked on 14 March 1983. Sixteen huts were burnt and the Ghandhiyam volunteers were intimidated. Though the affected families filed a complaint, no action was taken. In the beginning of April Dr. Rajasundaram,the Secretary and Mr. S.A. David, the President of the Ghandhiyam Society were arrested. It was alleged that both were tortured, and even after a court order access to their lawyers was delayed. Both were accused of helping the Tamil terrorists through the Ghandhiyam organisation. Dr. Rajasundaram was one of the persons killed in the Colombo prison riots between 25 and 29 July 1983.

Events that took place in the months of May and June clearly indicated that the situation was deteriorating seriously.

On May 18, polling took place for 37 municipal and urban Councils and 18 Parliamentary seats. It was reported that between nominations and polling day, militant Tamil youths had launched a violent campaign for the boycott of the polls. Two U.N.P. candidates and the party secretary of the Jaffna district were shot and killed. Acts of violence to disrupt the elections in the Jaffna district were maintained right up to election day on 18 May, when several polling stations were attacked with homemade bombs. The major confrontation came after the voting ended, when a gang of armed Tamil youth stormed a polling station two miles from Jaffna in a bid to seize the ballot boxes. An army corporal on guard duty was killed and four policemen and a soldier were wounded.

At 5 pm on the same evening, a state of emergency was declared. Later in the night, in what was clearly a retaliatory strike, soldiers burnt houses and vehicles and looted in the general vicinity of the polling booth in which the incident had taken place. Several million rupees worth of damage was done before the soldiers were pulled back to their barracks.

A report published on the incident in the Far Eastern Economic Review of 2 June 1983 quoted a senior police officer as saying, "what happened in Jaffna after the shooting is exactly what the terrorists want; they want the people to be resentful and embittered with the army".

On 1 June 1983, a farm and a children's home in Kovilkulam village near Vavunia and run by the Ghandhiyam Society was burnt. Mr. Tim Moore, Honorary Treasurer of the Australian Section of the ICJ who was able to visit the place in June 1983, says in his report that he "discussed the operations of the movement with a wide range of people in Sri Lanka and came to the conclusion that it is not involved in politics or with the Tigers, but is a genuine social service organisation". The Sinhalese suspicions with respect to its resettlement activities appear to arise more from increases in Tamil populations in areas close to Sinhalese settlements than from any legitimate grievances about its activities".

The army continued to penalise the Tamil community at random for the actions of the militant Tamil youth. For example on 1 June, two members of the airforce were killed by the Tamil youth while they were making routine purchases in the local market in the town of Vavunia. One of the shops was alleged to have been used by the Tamil youth to attack the two airmen. In retaliation, soldiers set fire to the shop and the adjacent shops. Mr. Tim Moore, who inspected the site, says that the damage "extended to some 16 or 17 small shops and destroyed the means of livelihood and a considerable portion of the assets of the traders involved".

The innocent Tamils affected on both occasions had no possibility of claiming compensation for the losses incurred by the illegal acts of the soldiers. Such disciplinary action as was taken against the soldiers involved in the May 18 incident was withdrawn by the government when 40 soldiers of the same regiment deserted in protest.

The situation was aptly summarised by a correspondent of the Far Eastern Economic Review of June 23, 1983, reporting from Jaffna on the May 18 incident. He said, "At present the northern and eastern provinces are experiencing a vicious circle of violence: terrorism followed by reprisals by the army and other security agencies, which have led to a drastic deterioration of law and order".

In the midst of this increasing violence by the army and police an Emergency Regulation was promulgated on 3 June 1983, authorising the police, with the approval of the Secretary to the Minister of Defence, to bury dead bodies in secret without any inquest or post mortem report. This extraordinary ordinance applies to the burying of any dead body, including persons who have died in custody.

In October this year when the report of the Sri Lanka government was presented to the Human Rights Committee under the International Covenant on Civil and Political Rights, some members of the Committee expressed serious misgivings about this Emergency Regulation. They questioned the need for providing such unlimited powers to the police in respect to burial or cremation of dead bodies. When replying to questions, the Sri Lanka representative argued that the Secretary to the Minister considers documents pertaining to the case like a magistrate before authorising a burial without inquest, the only difference being that the proceedings were not public. He said that people were excluded from the funeral in order to prevent attendance by sensation-seeking journalists who might further exacerbate the feelings of the majority community. This hardly seems an adequate reason for excluding the relatives.

Inquest proceedings on deaths in custody is a safeguard against torture and extrajudicial killings. An inquiry by an executive officer cannot be considered equal to a judicial inquest.

In addition to the promulgation of this Emergency Regulation, the government's lack of respect for the rule of law was evident in three cases in which a mantle of protection was thrown over officials who had exceeded or abused their powers. In the first case two soldiers who had been arrested and remanded in connection with the shooting of a lame Tamil youth were released by the magistrate on the instructions of the Attorney General. In the other two cases the government promoted police officers against whom the Supreme Court had passed strictures for exceeding their authority. This was justified by the government on the grounds that the police must be able to do their duty without fear of the consequences of adverse court decisions.

Asked by members of the Human Rights Committee to comment on these cases, the government replied that in one case the promotion was of a 'routine nature' and in the other the officer concerned had complained to the Supreme Court that he had not been a party and that his fundamental right to a fair hearing had been denied. It appears from this that the government still disregards the opinion of the Supreme Court which found that the actions of the police were unlawful.

In face of this it is not surprising that the police and army increasingly take the law into their hands.

In these circumstances, the tension between the Tamils and the Sinhalese increased and became widespread. The Far Eastern Economic Review of 23 June 1983, reported "what cannot be ignored is the current total alienation of the Tamil region from Colombo, plus an unusually high degree of antipathy between the Tamils and the majority Sinhalese communities of Sri Lanka".

In the same month Gamini Navaratnae, a Sinhala journalist wrote in the Saturday Review, an English language weekly published in Jaffna,

"After six years of United National Party rule, Sri Lanka is once again near the incendiary situation of 1958. Let's hope to God that no one, from any side, will provide that little spark that is necessary to set the country aflame. The politicians of all parties, should be especially careful about their utterances in this grave situation."

Unfortunately the spark was provided on 23 July, when thirteen soldiers were killed in an ambush by members of the small Tamil terrorist organisation. According to a report published in the London Times on 27 July, the soldiers were killed in reaction to the abduction and rape of three Tamil women by a group of soldiers. In addition, three days before the ambush, two suspected terrorists were shot by army soldiers at Meesalai Chavakacheri, fifteen miles from Jaffna. The government denies the rape allegation and says that it was fabricated after the ambush. Tamil sources insist that the incident took place, and that as often occurs the women concerned, afraid of the social stigma, were not willing to state it publicly.

These conflicting reports only go to support the demand for an impartial inquiry to investigate the causes of recent violence.

The official death toll of the riots between 24 July and 2 August 1983 is 387 and the number of homeless in Colombo alone at the peak of the violence was estimated at 90,000 by a senior official. Tamil sources claim that over 2,000 people were killed.

The most disturbing aspect of the riot was the conduct of the armed forces. On 7 August President Jayawardene disclosed that the army in Jaffna had gone on the rampage in response to the killing of the thirteen soldiers on 23 July and had killed 20 innocent civilians. He also disclosed that this information had been withheld from him by the army until 7 August. The Civil Rights Movement of Sri Lanka has alleged that the number of people shot and killed by army personnel was much higher than the 20 officially admitted. It has also been reported that on 25 July a group of 130 naval personnel in Trincomalee in another outburst of violence burned down 175 Tamil houses, killing one Tamil and wounding ten others, before they were stopped.

There are numerous reports that police and army stood by idly, while rioters beat or burned people to death. An example is the following Associated Press report from Norway,

"A Norwegian tourist back from Sri Lanka told an Oslo newspaper yesterday that she had witnessed the mass murder of Tamils by a Sinhalese mob.

"A bus full of Tamils was forced to stop just in front of us in Colombo, a Sinhalese mob set it on fire and blocked the doors. Hundreds witnessed that about 20 Tamils were burned to death," said Mrs Eli Skarstein of Stavanger.

Mrs Skarstein added that "Swedes they met said they had also seen people pour petrol directly over Tamils on the road and put them on fire. There was no mercy. Women, children and old people were slaughtered. Police and soldiers did nothing to stop the genocide"."

Another deplorable incident during the riot was the killing of 52 Tamil prisoners in Colombo's Welikada jail. The government allege that they were killed in a riot by other prisoners. Of the 52 prisoners, 35 were killed on 27 July and another 17 on 29 July, raising questions as to how the assassinations could have been repeated after an interval of two days without the connivance of the prison officials. In the magistrate's inquiry held on the killings, the Chief Jailor of the prison is reported tohave said that the authorities at the Colombo prison had information that there might be a second attack but the Tamil prisoners "could not be moved in time.., to save them". The magistrate's inquiry returned a verdict of homicide in all cases and directed the police to make further inquiries as the prison officials testified that they were unable to identify any of the persons responsible for the killings.

Genocide

The impact of the communal violence on the Tamils was shattering. More than 100,000 people sought refuge in 27 temporary camps set up across the country. Commenting on the violence Neelan Tiruchelvam, a Tamil lawyer and member of Parliament, stated, "the latest round of violence has put the finishing touch to the eradication of the Tamils. This time the Tamil professional and entrepreneurial class has been destroyed".

A government spokesman has denied that the destruction and killing of Tamils amounted to genocide. Under the Convention on the Prevention and Punishment of the Crime of Genocide, acts of murder committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such are considered as acts of genocide. The evidence points clearly to the conclusion that the violence of the Sinhala rioters on the Tamils amounted to acts of genocide.

Surprisingly President Jayawardene in his first public comment made three days after the riots had begun, did not condemn the violence against the Tamils. In trying to placate the majority Sinhalese, he seemed by implication to justify the atrocities. The most likely explanation of this extraordinary statement is that it was only by speaking in these terms that he was able to restore discipline in the army and police, and reestablish order.

Following the communal violence the government announced the banning of three left-wing parties for their alleged involvement. The three banned parties were the Janata Vimukti Peramuna or Peoples Liberation Front, the Nava Sama Samaj Party or New Equal Society Party and the Communist Party of Sri Lanka. Several members belonging to these parties were arrested and detained incommunicado without access to relatives or lawyers. No evidence has been published to establish any link between the violence and these three parties. Subsequently it has been reported that the ban on the Communist Party of Sri Lanka has been lifted and the arrested leaders released.

In August the Parliament approved an amendment to the Constitution under which all members of the Parliament, other local bodies and government employees were required to take an oath that he or she 'will not directly or indirectly in or outside Sri Lanka support, espouse, promote, finance, encourage or advocate the establishment of a separate state within the territory of Sri Lanka'. Any person who fails to take such an oath would cease to hold office.

The Tamil United Liberation Front (TULF) which is the main opposition party in the Parliament instructed its members not to take the oath with the result that on 21 October the TULF members of Parliament forfeited their seats by not attending sittings of the House for three months.

At the time of its formation in 1976 the TULF did pass a resolution advocating secession. However, the subsequent history of the Party shows that its leaders have repeatedly shown readiness to compromise, have never advocated or had recourse to any unconstitutional action and have clearly denounced and dissociated the party from the terrorist 'Tigers' organisation. Even after the recent disturbances they indicated to the Indian Prime Minister, who was trying to mediate, that the TULF waswilling to negotiate with the government of Sri Lanka, if no preconditions were imposed. Given this background the amendment to the Constitution has only alienated the TULF, since the leaders of the party were placed in an impossible situation politically, for they would have forfeited the confidence of the Tamil population if they had decided to take the oath. The amendment to the Constitution has left the Tamils without any representation in the Parliament and in effect has disenfranchised the Tamil people.

Even after the visit of the Indian Prime Minister's envoy to mediate between TULF and the Sri Lanka government, President Jayawardene was not willing to recognise the political role of TULF in the negotiations unless the TULF members took the oath. As a consequence TULF was not invited to the all-party conference called by the President on 21 October to deal with the problems of the Tamils. All major opposition parties invited to the conference declined to attend on the grounds that the conference would not serve any purpose without the participation of the Tamils.

The non-recognition of TULF's political role and the constitutional amendment may well contribute further to the politics of separatism. The present lull gives an appearance of normally, but the grievances of the Tamils still exist and have grown with the injustices done to them during the recent disturbances. Reports of violations by the police and army continue, and a renewal of violence is widely feared.

In a statement circulated in August 1983 to members of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, the International Commission of Jurists urged that

- since innocent Tamils unconnected with violence or terrorism have been the prime victims, immediate measures should be taken to ensure the safety of Tamils in refugee camps, en route to Jaffna or elsewhere in the island, and to convince them that they will be adequately protected;

- humanitarian assistance to the uprooted and displaced Tamils should be facilitated;

- firm control over elements in the armed forces and elsewhere which are found to have contributed to the recent violence should be established, and the killing of and other attacks on innocent Tamils by the armed forces in retaliation for terrorist actions must cease;

- a dialogue with legitimate representatives of the Tamil population with a view to resolution of outstanding grievances should be established. National unity can clearly be maintained only with the

- effective political participation of the Tamils who represent 20% of the population;

- it should demonstrate its commitment to the Rule of Law through repeal of the Prevention of Terrorism Act which violates Sri Lanka's international obligations under the International Covenant on Civil and Political Rights to which it is a party; and

- it should establish an independent judicial inquiry to investigate the causes of the recent violence, the events occurring during the violence, and to assess responsibility for the resulting loss of life and devastation. The killing of detainees in Walikada prison should be the subject of a special investigation. Those responsible for arson and killing should be prosecuted regardless of any official position.

* For a detailed analysis of the ethnic problem see Ethnic Conflict and Violence in Sri Lanka, by Prof. Virginia A. Leary, ICJ, Second edition updated by the ICJ staff, August 1983.