Ad Hoc European Criminal Tribunal of Sri Lanka (ECTSL)

By: Rajeev Sreetharan

By 2014 or 2015, the world order’s shift towards multipolarity may open doors to Tamil justice in Europe, the way 9/11’s War on Terror opened a window for Sri Lanka to perpetrate Tamil genocide in the Vanni Region under the pretext of counter-insurgency and collateral damage.

Background

For the moment, the sense of frustrating uncertaintyaround the fate of Tamil justicecontinues to fester beneath the slow, racistdrift of Post-Mullivaikaal Sri Lanka towards the Mahavamsa’s vision of a post-Tamil Northeastern province.While optics ofmultiethnic reconciliation attempt to blur the republic’s descent into draconian rule, the island could not be more divided. And its future could not be more uncertain.

Increasingly irrefutable is the ground reality that Sri Lanka’s domestic political sphere lacks the will and bona fides to support a restorative or retributive accountability measure, and therefore any such measure designed to depend on Sri Lankan institutions will fail. As colonization masquerades as development, armed peace as a permanent solution to the Tamil question, and unchecked Sinhala-Buddhist racism as majoritarian democracy, advocateswho rely on Rajapakse-dependent accountability measures to deliver Tamil justice increasingly risk losing credibility themselves.Thesense of frustration arises from thisdéjà vu of familiar politics, inside and outside post-war Sri Lanka, which validate the subjugation of Tamil human rights by deliberately pavingunworkable paths to diluted accountability through the familiar bottlenecks of Sri Lankan State bureaucracy. It is yesterday’s soup, warmed over, again. Thesense of uncertainty is reducible to twomomentarily unanswerable questions:

    1) Will there actually be independent international investigations?
    2) Will there be a tribunal?

The answers, when they do materialize,will not be inconsequential, something all stakeholders to Sri Lanka’s post-war settlement are aware of. In fact, the destiny of the unitary State hangs in the balance.

With a tribunal, retributive justice for genocidal counter-insurgency perpetrated by the Sri Lankan State with democratic sanction lays the legal and international political foundation for the non-violent formation of Tamil Eelam on the global stage through national liberation by exercise of the right to remedial self-determination. In this scenario, paradoxically, Rajapakse’s ‘military victory’ over the LTTE via Tamil genocide becomes the most cataclysmic miscalculation by an ultra-Sinhala-Buddhist political coalition in post-independence Sri Lankan history, overnight. Alternatively, without a tribunal, Mullivaikaal becomes Black July. The killing field becomes a Tamil Holocaust without the Nuremberg trials, another State-sponsored Tamil mass atrocity crime erased from international and Sri Lankan historical memory, enabling the delegitimizing characterization of past and future Tamil armed resistance as terrorism without complication.

A better understanding of how a tribunal may emerge in the current geopolitical climate begins with understanding how it can be denied.

At present, the denial of Tamil justice does not turn on substantive issues, such as did Sri Lanka knowingly kill40,000 Tamil civilians. Rather, if Tamil justice is denied, that denial shall likely turn on procedure.Procedure in this context defines who monopolizes the choice to set up a tribunal or drive independent investigations. From this view, a strategy of obstruction based on procedure is probably the easiest way to paralyze Tamil justice.

It is easier to deflate advocacy with the impediments of procedure, rather than defend Sri Lankaon the merits of the killing field. Procedure can be employed by actors opposed to Tamil justice to cultivate a sense of powerlessness, to protract lobbying to dissipate the energy of activist networks, tocreate dependency by fixing the ultimate decision-making power to set up a tribunal or investigation on one intransigentthird-party, such as the United Nations under its current, though changing Sri Lanka policy.

Within this logic, social and civil society movements which drivethe issues of Tamil genocide, torture, war crimes, and crimes against humanity carried out by the Sri Lankan Armed Forces must be kept contained to political/media narratives, categorically divorced from a legal process.

Historically, the trouble for dictators, like Rajapakse, comes when political/media narratives turn in to legal consequences that undermine regime survival. In Sri Lanka, a legal process would threaten to delegitimize the post-war Rajapakse administration, placing itin the den of dictatorships that kill their own citizens - like Sudan, Syria, Libya – an unpalatable outcome to those who prop up the regime.Sri Lanka can be criticized on human rights grounds, but that criticism should not breach a tipping point beyond which advocacy substantively threatens the perceived legitimacy of the Rajapakse administration’s Carthaginian peace in post-war Sri Lanka, the reasoning goes. So the proper inquiry is less, will there be independent international investigations or a tribunal for Mullivaikaal, and more, who monopolizes the choice to set them up?Is there a workaround if that monopoly is adverse to Tamil interests?

In short, there is a monopoly, and there may be a workaround. In the post-World War II world, the United Nations and Euro-Atlantic alliance (United States, France, UK, etc.) have historically monopolized the choice to set up investigations and tribunals after genocide or armed conflict. Some notable historical examples include the criminal tribunals for genocides and armed conflicts in Germany, Cambodia, Yugoslavia, and Rwanda. However, in the modern multipolar world, the United Nations’ historical grip on setting up post-war transitional justice tribunals no longer necessarily monopolizes the choice of which communities and which wars or genocides deserve justice and which don’t.

The past is prologue, not destiny.

In an interconnected world of multiple poles of power and transnational Diasporas, alternative paths and possibilitiescan emerge, expanding the menu of options for advocates of post-war justice. In the Sri Lankan scenario where the United Nations and Western governments take a two-track policy – sympathizing with Tamil human rights considerations, but obstructing Tamil justice as a practical matter for foreign policy reasons- a European alternative is possible.

ECTSL

The European Union (EU) can fill the Tamil justice vacuum created by the United Nations general policy of non-intervention in Sri Lanka since May 2009. In essence, the European Union, in collaboration with Commonwealth members, can set up investigations and a tribunal for jus cogens norm violations perpetrated in Sri Lanka between January 2008 and May 2009. The EU, a rising player on the global stage, could drive this process in the form of anAd Hoc European Criminal Tribunal of Sri Lanka (ECTSL), set up and run in Europe, loosely modeled after the Ad Hoc International Criminal Tribunal of Yugoslavia (ICTY) or Rwanda (ICTR). Such an ECTSL would conceivably have two phases:

    1) Investigations
    2) Tribunal

The ECTSL could carry out transnational investigations which include the post-Mullivaikaal Tamil asylum population in Canada, Europe, and Australia. If these investigations supported a prima facie case for establishing a tribunal, the ECTSL could then set up a tribunal which would try Sri Lankan political and military officials in absentia if Sri Lanka denied European extradition requests. Alternatively, the ECTSL could conduct investigations, and then liaise with the UN for future collaborative steps.

An ECTSL would not necessarily replace a UN-driven mechanism, but could provide a new regional paradigm for EU-UN collaboration on transitional justice issues in a world where the EU continues to ascend to political and economic parity with other global powers like America, Brazil, India, and South Africa.

Four reasons support the proposition that an ECTSL could be a workable alternative for Tamil justice in an international political climate where the UN’s Sri Lanka policy is evolving, though its intentions to set up a tribunal are still unclear.

First, in the EU, the 1-million+ Tamil Diaspora is strong where Sri Lanka is weak, a dynamic which would maximize the efficacy of lobbying efforts. Second, the politics of setting up investigations or a tribunal need not hinge on Sri Lankan consent or UN-politics and the Russia-China-US variable in the UN Security Council, the factors historically stifling Tamil justice interests. In the EU, setting up investigations or a tribunal would primarily hinge on local European political dynamics, which the Diaspora and civil society have the capacity to shape. Third, the post-Mullivaikaal Tamil asylum population outside of Sri Lanka is sufficient for investigation objectives. Since the Tamil victims are in Europe, with the aid of satellite imagery, and other sources of available evidence, independent international investigations for genocide and war crimes can take place in Europe, not Sri Lanka. Fourth, after the Eurozone crisis begins to settlein 2014-2015, the EU will probably be searching for a low-cost unifying project to establish its identity as a legitimate player on the global stagethat advances globally shared values, like international human rights. An ECTSLwould provide such an opportunity.

An ECTSL under European Union law can be set up in two ways: (1) within the EU structure itself in the form of a ‘specialized tribunal’ under the Lisbon Treaty (2) outside the EU structure through an international treaty signed by member-states, the way the European Court of Human Rights (EcTHR) or the European Fiscal Compact (EFC) were set up.

In the first scenario, the judicial structure of the European courts as envisaged in the Treaty of Nice, and promulgated by the Treaty of Lisbon,empowers the Council of Europe to create specialized tribunals to hear disputes in specific areas, such as the European Civil Service Tribunal. The commitment and binding obligation of the European Union and member-states to international treaties on human rights, war crimes, and genocide, would provide the legal foundation to set up the ECTSL in Europe to adjudicate disputesin the special area of jus cogens norm violations perpetrated in Sri Lanka for a Tamil asylum victim community presently residing largely in European jurisdiction. The EU has yet to set up an ad hoc criminal tribunal for post-war justice using its specialized tribunal power, but it has the legal and political ability to do so. In the second scenario, the ECTSL is formed by participating EU member-states becoming signatories to an international convention written to set up the ECTSL, similar to the Convention for the EcTHR, or the Rome Statute which set up the International Criminal Court (ICC), a judicial organ of the UN. Signatories to a convention for the ECTSL would probably include every EU-member state with a Tamil refugee population, plus Canada and Australia.

If European politics is open to the idea, both scenarios can conceivably be achieved in a reasonable time frame through collaborative lobbying efforts of the Tamil Diaspora and civil society counterparts supportive of justice for Mullivaikaal.

In the mean time, our understanding of the menu of options for Tamil justice, the ways it can be implemented, the ways it can be denied, is crucial to ensure Mullivaikal is written in the next generation’s history books as the Tamil Holocaust, and not a regrettable sequel to Black July.

An ECTSL may not be the solution. But an ECTSL, or similar approach based on a regional paradigm for transitional justice extricated from exclusive dependency on Sri Lankan consent and United Nation multilateral politics, could be an option worth exploration.

In the end, the fate of Tamil justice for Mullivaikaal is not a question of “if.” It is a question of “when” and “where.”

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