TIME FOR A WAR CRIMES TRIBUNAL FOR SRI LANKA?

Place: Sri Lanka | Courtesy: TamilCanadian
| Date: 20000700

By: Dr.Nava

The 1949 Geneva Conventions, which codified International Humanitarian Law, consist of lists of grave breaches such as wilful killing, torture or inhuman treatment, wilfully causing great sufferings or serious injury to body or health, extensive destruction and appropriation of property, compelling civilian to serve in the forces of the hostile power, depriving the rights of civilians, unlawful confinement of civilians, and take hostages.

Additional Protocol II of 1977 expanded the protection of the Geneva Conventions for international conflicts. Although the grave breaches provision only applies in international armed conflicts, the Common Article 3 of the Geneva Conventions as well as the serious violations of Additional Protocol II, protect victims of armed conflict and basic rules on methods of warfare from war crimes.

Government Sponsored Atrocities against Tamil Civilians

A civil war is in progress in Sri Lanka between the Sri Lankan government's armed forces and the Liberation Tigers of Tamil Eelam. Since April this year, the government has intensified the attacks against the civilians by using multi-barrel artillery shelling and carpet bombings. The government is directing attack against the noncombatant civilian's population. Civilians are used as human shields by the armed forces. Indiscriminate artillery shelling and bombings purposively damage properties of the civilian Tamil people. The government sponsored atrocities in north and east Sri Lanka evoke a litany of horrific human tragedies - ethnic cleansing, starvation, murders of children; extrajudicial killings, rapes, bombardments, shelling, arbitrary arrests and detention, labour camps, ill-treatments, summary executions, collective punishment, and pillage. These atrocities are committed on a large scale; thus, they also constitute crime against humanity and genocide.

In July 2000, in a report on Sri Lanka by the human right organisation, Amnesty International, is critical of the emergency regulations introduced in May. The report indicated that that an increase in torture, disappearances and deaths in custody has been reported since the regulations were introduced. It also suggested that it is concerned that wider powers given to the security forces may have contributed to the increase.

On 29 June 2000, the Chairman of the Committee on International Relations, Congress of the United States, Congressman Benjamin Gilman, claimed in his letter to Hon. Madeleine Albright, US Secretary of State, that the Sri Lankan government has a long history of repressing the human rights of the Tamil people. In addition, embargo on food, medicine and other essentials to the Tamil people has caused a humanitarian crisis. The letter further continued to indicate that the ban on access for the media to the war zones could indicate that the Sri Lankan government is concerned that the outside world may learn things that may not reflect well on its image.

On 18 July 2000, two British members of European Parliament strongly criticised the Sri Lankan government's human rights record. They said that the government has not done enough to protect civilians caught up in the war against Tamil Tigers and is covering up their suffering. The two members accused authorities of implementing an oppressive press-censorship policy and of not allowing essential supplies, including baby food and medicine, to be distributed in areas controlled by the Tamil Tigers. They also said that the authorities were not doing enough to minimise civilian casualties. They claimed that the plight of displaced people in and around the conflict area was as bad as the suffering endured by civilians in Sierra Leon and Chechnya.

The heinous and massive crimes such as genocide, torture, rape and destruction committed by the Sri Lankan soldiers must be a concern to the international community. Unfortunately, in Sri Lanka, there is no judicial system capable of dealing with these types of crimes or providing a fair trial. Therefore, international community and media should take every endeavour to stop these atrocities by advocating for a war crime tribunal for Sri Lanka.

International Criminal Tribunal

The International Criminal Tribunal affirms that no one, whether a head of state or private soldier, is immune from criminal responsibility for crimes against humanity, in particular war crimes. Sri Lankan President Chandrika Kumaratunga is the commander in chief of the all armed forces in Sri Lanka. The crimes against the Tamil civilians are planned and executed with the directions and support of President Kumaratunga. She is waging a "war without witness" against Tamil people. Media and international visitors are not allowed to witness the war. The Tribunal must indict her for crimes committed against innocent Tamil civilians in Jaffna and other Tamil areas.

As Amnesty International argued in a case against the former President of Chile, Augusto Pinochet, before the House of Lords, it is a fundamental rule of law that all persons, including current heads of state, can be held criminally responsible in national and international courts for crimes under international law, including genocide, other crimes against humanity, war crimes and torture.

It has long been settled that there is no need to prove that the superior gave direct orders to subordinates to commit these crimes. This rule is reflected in international instruments such as Protocol I to the Geneva Conventions of 1949, the Draft Code of Crimes against the Peace and Security of Mankind, the Statutes of the Yugoslavia and Rwanda Tribunals and the Rome Statute of the International Criminal Court. Under the rule, a superior may be held criminally responsible for the conduct of a subordinate if he or she has had reason to know that the subordinate was committing or planned to commit the crimes and the superior did not take all necessary measures to prevent or repress the crimes.

War Crimes Committed in the Town of Kaithady

Kaithady is a medium size town in the Jaffna Peninsula. It fell to LTTE on 17 May 2000. In April 2000, it had a population of approximately 10,000 Tamils. Kaithady was a focal point of conflict throughout the months of April, May and June this year. Unlike most towns and cities in north, it was the target for heavy artillery fire, bombing and shelling by the Sri Lankan armed forces. Consequently, deaths and the total destruction experienced by the civilians are beyond the norm of any civilised society. The Sri Lankan armed forces seized the town since 1995 and the public buildings were frequently used as a detention centre for Tamils arrested from surrounding areas, especially during the large-scale government offensive before its fall to LTTE.

STATE TERRORISM !

Extensive shelling of Kaithady by Sri Lankan armed forces began on 16 May and people were fleeing from that moment. The displaced people described the situation as "a human tragedy of combination of deaths, destruction, injuries and distress". Eyewitness accounts indicate multiple violations of human rights and humanitarian law in Kaithady since early May 2000. The unarmed civilians suffered detentions, beatings, house-to-house searches, robbery, and extortion by the armed forces.

One displaced family from Kaithady wrote on 1 June 2000, they escaped death with their two children by moving from one place to another for several days and nights. They claimed that the Sri Lankan armed forces do not have any regards for the lives of the fleeing and unarmed civilians. The family said that they are afraid to death to describe the atrocities and their narrow escape from death. This family said that on 19 May 2000, the armed forces were shelling Kaithady. There were hands to hands fight between the LTTE and the armed forces close to their house. On the next day, shelling started at about 8:30 PM and it was continuing for about two hours without any breaks. In the meantime, they moved to another friend's place. However, they could not stay there. They had about 17 people in their group, including their relatives. The family said that everyone was crying and running here and there to save their lives. It was raining and at about 3: 00 AM they were running along the Neervelli beachside. At that point, the armed forces confronted them. The army was shooting on them and two people from their group were killed. They were shouting at the army claiming "civilians", "civilians". However, Sinhala army did not bother. They did not understand their language. Finally, the army let them flee. The family said that they do not know what happened to their sisters and parents. The family claimed that they saw several dead bodies on their way to Chunnakam. They also said that it was almost 15 days since they fled Kaithady and they did not have an extra cloths to change into. The family said that shelling was splitting the people into pieces. This is the fate of the civilians. It is like a horror story. This must be stopped.

Deprivation of Basic Needs

Basic amenities are not available to people. Women, children, the elderly and sick are tired of living without food, shelter, cloths and medicine. Children are not getting education. A desperate family who fled Kaithady wrote to their family members on 28 May 2000 that their farther was dying without medicine. They wrote, " we cannot get medicine for our father's heart condition. The Sri Lankan armed forces do not allow people to move from one place to another. The armed forces are extorting money from sick people to allow them to buy medicine from nearby towns. The price of medicine has increased four fold. We cannot afford to buy and we do not have any money". This family is now in Chunnakam only with the clothes they were wearing at that time of fleeing. The armed forces have enforced curfew so that people cannot go anywhere in search of medicine and food. The people are unable to take the sick to nearby hospital. All forms of transports have been stopped by the armed forces. It is a total anarchy in Jaffna by the occupied armed forces.

A family with four children wrote that their children's has been denied by the armed forces. Schools were closed. Children do not have books or anything else with them. Many children are getting sick. Infectious diseases are becoming a serious problem among the displaced people. Malnutrition among children is a serious concern and people are not getting enough food daily. The armed forces are rationing all basic needs. Another family wrote that their children have grown up and they are worried that the government is harassing them. The parents are also worried that children are volunteering to join LTTE in large numbers to fight for their freedom because of the aggression by the armed forces.

Forced Displacement into Jaffna

The forced displacement of civilians from surrounding towns into Jaffna began with the departure of the international humanitarian aid agencies. Fleeing civilians were rounded up and forced to move into Jaffna. Some people who objected the army were shot to death on the spot. People were fleeing throughout days and nights. They did not think about taking anything with them. Everyone was running for his or her lives.

Accounts from residents of Kaithady confirm that attacks against the nearby villages began on 20 April 2000. According to a twenty-year-old woman from the town " the armies were shooting from Neerveli and killing the fleeing people". Another woman from the same village said that "shells are falling into the houses and yards, a lot of shells exploded and destroyed all properties and some were flying over our heads".

From 19 April 2000, fleeing people began to arrive in Kopay, Neerveli, and other surrounding towns. Some people sought to remain in the town, but eventually left the town as result of the constant bombing and shelling. A letter from a person reported that his entire town was a war zone. The woman, children, and elderly inhabitants of Kaithady were displaced all over the Jaffna as refugees.

Another family displaced from Kaithady and now refugees in Manipay said that they could not bring their parents with them because they were so fragile and scared to walk. They are worried about the fate of their parents' lives. They think that their parents may be taking refuge inside bunkers. They said that they are having nightmares about the safety of their parents. They were trying to contact ICRC in that area, but they cannot move from one place to another as a result of the army enforced and localised curfews.

Killing of Civilians

On 20 May 2000, multiple shells fell on an old people's home (a institutionalised home for aged people) at Kaithady killing over 15 elders and seriously wounding 24. While most of the killings in the town occurred as a result of shelling, artillery fire and bombings, at least 10 unsuspected civilians were shot dead by the heavily armed soldiers. The majority of the people claiming that they have witnessed killings of fleeing civilians by the Sri Lankan armed forces. Most of the killings, witnesses said, were carried out by armed forces hiding in the bushes in nearby towns.

One forty-four-year-old man from Kaithady wrote that two children were killed while they were fleeing to a secure place. Fleeing people were robbed of their money, watches, jewelleries, and other valuables. "They even took our wedding rings and Thalikkodi". The man wrote. Several people from the town have written claiming that knowledge of as many as nineteen other civilian killings in Puttur, a near by town to Kaithady. A seventy-year male person was severely wounded when a shell hit him. At the very least, their claims strongly suggest that further killings did take place during this period, mostly in the process of fleeing from Kaithady to adjoining towns.

One family that displaced from Kaithady wrote that they have five small children and they are worried about their lives. The parents are regretting to have more children because eventually the army is going to kill them any way. On the other hand the children do not have any food and they are hungry. They are crying. Nobody listens to his or her plights. The family wrote, "we should not have been born as Tamils. We should have been Sinhalese. We do not know why we born as Tamils". A letter received form a relative on 23 June 2000 reveals that not a single house escaped damaged by the shelling. People are becoming sick as result of the distress and duress generated by the displacement.

Property Damage, Robbery, Extortion, and Looting

Virtually all houses, farms, schools, temples and community centres have been seriously damaged. Many public and private properties cannot be used any more. On the day of the fall of Kaithady to LTTE, the fleeing armed forces began to rob Kaithady residents, entering houses and demanding money, jewelleries, bicycles, gold, mobile telephones, televisions and other valuables. Stores and businesses were also targeted. Eyewitness said that the fleeing armed forces set fire to some houses. The vast majority of displaced refugees either personally experienced or directly witnessed robberies. In some areas, demands for money by armed forces are so frequent and has become a must do thing. Private cars and tractors were stolen and expropriated for use by the fleeing army. "Almost all the cars were confiscated," one letter said.

During some of the robberies, armed forces reportedly threatened children with knives and automatic guns in order to extort money from their parents. According to a seventy six-year-old man, from Kaithady, the armed forces were very adamant to take money and valuables. "They would take your children and say, give me money or I won't let them go", the man said. "We do not have any money with us now" another family wrote to their relatives. " The government is not giving any support services in the areas controlled by them. We are trying to sell the left over jewelleries to get some money so that we can buy food. However, selling jewellery is also a problem. Nobody is buying. We do not know what to do" a family wrote to their relatives. They asked their relatives to send money immediately by any means.

A displaced family from Kaithady wrote to their relatives on 8 May 2000 that the shelling was so intensive that whole town looked like graveyards. Apparently, half the people from Kaithady have gone to Vanni and the other half are in Valigamam area. Only water is available for them freely and everything else is very rare. They are starving. The government is oppressing the Tamil people because they are Tamils. Every living Tamil is a very fortunate person to be alive. Every unwounded person is lucky to be without injuries. People did not know how they survived. One letter claimed that "we have seen people were killed in front of their family members as result of the shelling. One of our neighbours was seriously wounded and lost his leg. It is sad. Our situation is pathetic. No international country is doing anything. India is not doing anything". Within five days of the falling Kaithady to LTTE, the government forces bombarded the town around the clock. All house were damaged. The people were forced to leave their house at 1.30 a.m. One eyewitness wrote" a building was bombed with people still inside. A thirty-five-year-old mother of five from Kaithady North was killed while running for a cover".

Destruction of Farms and Food Stocks

According to Kaithady residents, many people had Rice, Potato, Onions, Chillies and other food items in large quantities not only for their consumption but also for making their living from selling. Because of the shelling, all food storage places were damaged. Animals, birds and other creatures are eating and damaging the remaining food items. Food is dangerously scarce in the displaced areas. People are worried about their livelihoods. In addition, many food stores had been looted and burned or were simply not functioning. The adjoining town's population had also been swelled by the influx of displaced people from neighbouring towns. Some towns were virtually under siege by Sinhala forces, with what one resident described as a "total occupation and aggression by the Sinhala armed forces". Cash and food crops are dying without irrigation and regular maintenance. Harvestable food items are rotting. Several thousand subsistence farmers are very upset and distressed about their farming loss and the future prospects. One person wrote, "we do not know whether we will live or die. There is nothing left for us". Moreover, farm animals are out of control. They are romping and eating all food crops. Farmers are expecting a substantial loss in their annual income. In Kaithady north the armed soldiers were smashing and destroying all fruit trees such as Banana plantation as much as they could and dropping explosive items into irrigation wells.

Several refugees indicated that food was in such short supply that people were forced to subsist on boiled Yams, Banana and Coconut. A Kaithady South resident who was among the first to flee from the town said that the food shortages in displaced areas added to the level of hopelessness among the population. "We can survive the bullets, but we cannot live without food." the resident said.

One displaced family said that they did not have any problem for food when they were in Kaithady. They had milking cows, poultry farms, and vegetable gardens so they were quite self-sufficient. They shared the excess food with their relatives and neighbours. However, they are struggling to have a one meal per day in displaced areas. The family said that they had 30 sack full of rice in their house. But, they think that all were damaged as a result of the bombing and shelling. "We are living with tears and we do not know whether God will help us now or when", the family said.

Detention and Abuse

On and before the fall of Kaithady to LTTE, the Sri Lankan armed forces made frequent visits to the homes throughout Kaithady and arbitrarily arrested young chidden, detained and abused. In many cases, they were detained for several days. All families were surrounded by the armed forces and detained in boiling temperatures all day. Some residents said that soon after people were surrounded and detained, their homes were ransacked and looted by the armed forces under the pretext of search for arms. Instead, they were looking for money, jewelleries and other valuable items.

In early April, armed forces carried out early morning raids against various neighbourhoods in the town, conducting house-to-house searches, in which large groups of adult men were separated from their families and forced to the local army camp. Almost all of the men were beaten in front of their homes or on the way to the camp, and some were forced to crawl on the rocky road. Although some beatings took place in the homes and camps where many men were held, some detainees also reported that the army was making jokes about LTEE. Most of the detainees were questioned about the LTTE and then released after no more than one day in custody.

One person wrote, "about ten soldiers came to my house at 8:00 a.m. They knocked on the door. An army pointed an automatic rifle and told to put my hands up. They took me outside with my family and checked all of us. They beat me up. They hit me twice inside the house, while they were searching the house. My sons were beaten up on the street and taken to the army camp".

The raids and detentions continued until May 17, the day when LTTE captured Kaithady. A displaced man in his forty from Kaithady east staying in a temple described what happened to him during an early morning operation was a tragic experience.

Recommendations:

This report consists of extensive war crimes committed by the Sri Lankan armed forces in Kaithady and calls on the international community to initiate, exhibit, and investigate the atrocities and to decide whether the Sri Lankan President Chandrika Kumaratunga and the senior armed force commanders have a case to challenge. We, the Tamil community, appeal to the media and other advocacy groups to call for an International Criminal Tribunal to investigate these atrocities.

The international community and media should:

1. Facilitate and generate political support to conduct thorough investigations into allegations of humanitarian law violations in Kaithady.

2. Publicise any intelligence information obtained that relates to the commission of war crimes, including the identification of specific units engaged in operation in areas which abuse occurred, and convey relevant intelligence information to the International CrimeTribunal.

3. Ensure that all evidence relating to the armed forces and President Chandrika and other political leaders responsible for war crimes in Kaithady, as well as in other Tamil areas, is turned over to the International Crime Tribunal investigation.

4. Send a clear message that the international community will not tolerate war crimes, crimes against humanity, and act of genocide. Seek support to send a Human Rights watch group to Kaithady to interview victims and witness atrocities, to gather physical evidence to coordinate with other international agencies currently operating in this area.

5. Raise the awareness about the mandate and work of the International Crime Tribunal and the obligations created by the humanitarian law through a public education campaign.