Genocide: ‘the end of imagination’

By Kalana Senaratne

(April 11, London, Sri Lanka Guardian) If countering Arundhati Roy’s accusation of an impending genocide (The Silence Surrounding Sri Lanka, 31 March 2009) is the task at hand, then, one needs only to point towards the Reuters photograph that accompanies her article on The Boston Globe website. It captures the return of Sri Lankan Tamils to Government controlled areas. The caption below the photograph reads: ‘Sri Lankan Tamil civilians arriving at a government-controlled area after fleeing territory controlled by the Liberation Tigers of Tamil Ealam’. How removed from ground reality, I wondered, is this accusation of genocide thrown at us by Roy and some others.

There is a colossal fallacy that surrounds this accusation of ‘genocide’, or that of an impending one, both from a legal as well as a common-sense perspective. Countering this accusation is necessary only because those who accuse Sri Lanka, or rather President Rajapaksa’s administration, of genocide are giving that term (genocide) a somewhat polite meaning. ‘Genocide’, mind you, is a most atrocious and horrible thing.

At the outset, however, we need to remind ourselves of certain realistic and practical ‘ifs’. If genocide had happened, the Sri Lankan Armed Forces would have run-over the LTTE many months ago, for genocide would have meant, in current circumstances, the annihilation of all those innocent Tamil people trapped in the North (i.e. specifically the no-fire zone). If genocide had been the state policy over the decades, the population of Sri Lanka would have been a few millions less than what it is now; and even if the argument is that of widespread, prolonged displacement and destruction of the community’s physical and cultural base amounting to genocide (as accused by the ‘Tamils Against Genocide’), then, the finger necessarily points to the LTTE which had control over the North and the East (the base of the Tamil people) perhaps, since the 1980s. If there was genocide, then more than 50 per cent of the Tamil population would not be living in areas other than the North and the East of this country. So, why does this accusation of genocide seem exaggerated and ridiculous, but yet seem to be so vital to those who are willing to throw a lifeline to the LTTE? Let us consider some basic issues.

What is Genocide?

Genocide (derived from the Greek word ‘genos’ meaning race or tribe, and the Latin ‘cide’ meaning kill) refers to the most abominable and heinous crime that man could ever commit against man. Article 5 of the Statute of the International Criminal Court (SICC) lists genocide above all other crimes which are the ‘most serious crimes of concern to the international community’ (Article 5). It ‘shocks the conscience of mankind, results in great losses to humanity…’ stated the International Court of Justice (ICJ) in its Advisory Opinion on Reservations to the Genocide Convention (1951).

But what does it mean? As per Article II of the Genocide Convention of 1948 (also, Article 6 of SICC, which is based upon this definition): Genocide means any one of a number of acts which are committed ‘with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. What are these acts which amount to genocide? They are, namely: i) killing members of a group, ii) causing serious bodily or mental harm to members of that group, iii) deliberately inflicting conditions of life calculated to bring about physical destruction, iv) imposing measures intended to prevent births within the group and v) the forced transfer of children of the group to another – all, with the intention to destroy, in whole or in part.

The accusation of genocide, within the Sri Lankan context, carries therefore a specific meaning. It amounts to the accusation that the Sri Lankan Government (or the President as ‘Commander-in-Chief’) is possessed with the intent to destroy, in whole or in part, the entire Tamil population of the country or part of the population (if what is in mind is the group of innocent civilians trapped in the ‘no-fire zone’, at present). This is a very serious accusation. However, it needs to be tempered with certain facts which, if considered seriously, would show a certain element of absurdity and irresponsibility on the part of those who accuse the regime of genocide.

One such fundamental fact is the presence of Tamil politicians within the Rajapaksa administration. Most prominently, the presence of persons such as Ministers Douglas Devananda, as well as Muralidaran (alias ‘Karuna’), an ex-LTTE member. When this factors in, the genocide accusation is in effect equivalent to the accusation that such Tamil representatives (even though the latter is not elected by the people) are aware of, or have connived in devising a policy or support a leader (if there was one) who promotes a policy which attempts to exterminate and intentionally annihilate, in whole or in part, an ethnic group of the Sri Lankan population which they themselves represent. Now, while the mere presence of a representative of the Tamil community within a Government cannot help one in fully negating the accusation of genocide, to believe that such persons would remain quiescent in the face of a policy that amounts to genocide is a remarkable, and indeed an unbelievable one.

Genocide is not something that happens overnight. A leader, a State, doesn’t rise up one fine morning and think: ‘genocide’. As Judge Weeramantry (former Judge and Vice President of the ICJ) points out, for instance, ‘Genocide does not suddenly erupt but is the result of a variety of factors that promote it such as the propagation of hate literature and indoctrination in schools’ (Universalizing International Law, p. 197). In other words, there is a systematic method, a clear policy that a State adopts if genocide is indeed the intention – the kind of careful and systematic planning as was seen concerning Nazi Germany with regard to the ‘final solution of the Jewish question’, the Armenian massacre by the Turkish Government (1915-18) or Pol Pot’s Cambodia during 1975-79, or Rwanda in the 1990s.

Here again, evidence on the ground points to the exact opposite of such an accusation. The massive development drive and initiative launched with regard to the North and the East, the resettlement and rehabilitation measures currently in place, the humanitarian mission underway to rescue the people from the clutches of the LTTE – all these, signify very clearly, the true intentions of the Government which cannot, by any stretch of imagination, be equivalent to a policy of attempting to systematically destroy, in whole or in part, the Tamil people in the North.

This inability to appreciate the ground realities, to question whether such on-the- ground facts support their accusation, is what makes the accusation of genocide utterly divorced from reality, and an irresponsible one. ‘Genocide’, the UN General Assembly stated in a resolution unanimously adopted in 1946 (res. 96(1)), ‘is a denial of the right of existence of an entire human group’. The above facts would show, in some measure, the effort that has been put in to ensure the existence of the human group which consists mostly of innocent Tamil civilians who are our own people.

Intention

It is also important to dwell, briefly, on the issue of ‘intention’ which relates in great measure to the points discussed above as well. When proving genocide, ‘intention’ is of utmost essence – a fact emphasized by the Yugoslav Tribunal in the Jelisic case. The intention or mens rea required to prove genocide is referred to as one of ‘specific intent’ (dolus specialis). Specific intent can be established only if the act was directed against a group - in this case the specific Tamil group - and was carried out with the clear objective of destroying that group, in whole or in part.

This is the reason why acts committed with any objective falling short of the destruction of that targeted and specific group will not be sufficient for a prosecution even if the consequences of that action result in the annihilation of that group (see International Criminal Law and Human Rights, Claire de Than and Edwin Shorts). Or, as Philip Alston and Henry Steiner put it, one of the consequences of a lack of intent is that there is no genocide even if a group was destroyed through acts committed without an intent to bring about such destruction (International Human Rights in Context: Law, Politics, Morals). There has to be a specific and clear intent to destroy a targeted ethnic group. Random killings, ‘collateral damage’, do not fall within the definition of ‘genocide’. But be clear about this; such killings will amount to, for example, a crime against humanity - but not genocide.

Recourse may be had to inferences from facts, but what are the facts on the ground except for those that have been highlighted above? It baffles me how one could accuse the Government without showing even a modicum of appreciation for what it is trying to do. If genocide was what is imminent, there would have been no need, or even perhaps a certain element of compulsion, for persons such as Defence Secretary Gotabaya Rajapaksa to state that time is not a factor, and that the main concern is to get the civilians out of the LTTE-controlled areas. Defeating the LTTE, as we all know, is of the essence, and time is of utmost importance. Still, the protection of civilians is essential. If genocide was indeed the plan, things would have been, I would imagine, rather different.

Genocide; the LTTE’s final trump card

But, there is a reason or two why this accusation of genocide, however absurd and ridiculous it may be, acts as the final trump card of the LTTE and of those who want to ensure its survival, perhaps, through intervention.

The principles of the Genocide Convention, the rights and obligations guaranteed by the Convention, form part of that body of law which is termed ‘jus cogens’. Jus cogens refer to the set of peremptory norms which are non-derogable (i.e. binding, notwithstanding any agreement to the contrary), and the crime of genocide is clearly one, for it not only threatens the right to life of an individual but also to the right en masse.

And quite importantly, genocide is a crime which imposes ‘erga omnes’ obligations; i.e. obligations towards all other member states of the international community. In law, this is an obligation, regarded as one which is owed to the whole international community, with the significant practical consequence that the right to react appertains to every State. ‘Genocide’ gives enormous hope to those who clamour for intervention. It may not be UN intervention that is of great concern here. Rather, Indian intervention. This is also a strategic reason why a known voice from India is extremely beneficial to the LTTE’s cause, to boost its case, at a moment as this. A voice, as that of Arundhati Roy. The very fact that India has not intervened as imagined by proponents of such intervention – an intervention, which would have been an obvious and inevitable outcome if her neighbour had perpetrated a policy of genocide – suggests rather clearly the lack of genocidal intent, let alone the commission of acts of genocide, on the part of the Sri Lankan administration and its leaders.

Hence, it not mere conjecture to imagine that when accusing Sri Lanka, every possible thing needs to be coloured in genocidal paint. For instance, not even an IDP camp should be spared. Consider, therefore, the concerted attempt to portray the IDP and welfare camps as ‘concentration’ camps. There are certain acts which, if committed, amount to genocide (as per Article II of the Genocide Convention) in labour, prison and concentration camps – camps which are set to hold people of a group with the clear intention of affecting their destruction through means such as starvation, torture, experimentation or a systematized means of extermination. The attempt made by those arguing for the LTTE is to show that these IDP and welfare camps amount to ‘concentration’ camps, and that the standards set, as well as the treatment meted out, are so horrible that it in effect amounts to genocide. This ‘concentration camp’ accusation is a carefully crafted one, with a larger goal – of strengthening the ‘genocide’ accusation – in sight.

But here again, on a rudimentary level at least, the LTTE needs to provide evidence that the intention of the Sri Lankan government is to destroy, in whole or in part, the Tamils trapped in the North, and those who are receiving treatment, food, and shelter, in the IDP camps. It needs to refute certain facts: the fact that certain diplomats, having visited the camps in Vavuniya applauded the effort of the Government to alleviate the suffering of the IDPs - the fact that UNHCR has expressed its satisfaction regarding aid distributions and conditions at the IDP sites – the fact that on April 5th, 2127 civilians, including 919 children, fled from LTTE hostage and sought the Army’s protection – the fact that the Sri Lankan Navy evacuated over 400 patients and civilians on board ‘MV Green Ocean’, etc. etc. It should be baffling, even to the most ardent critic of the Rajapaksa administration, to imagine how the above could have been carried out with intent to commit genocide.

Conclusion

Apart from the above, there is something extremely unfortunate about this accusation of genocide. Today, this accusation, like many other things, is a highly politicized accusation, and is fundamentally directed at bringing down the Rajapaksa administration. It is then no surprise that those organizations (such as the Tamils Against Genocide, for example) who accuse Sri Lanka focus, very shrewdly, on the time period since President Rajapaksa came in to office. How else could one explain the rationale of the TAG of accusing the Sri Lankan State of discrimination and persecution of Tamils since 1948, and ‘harrowing destruction’ of the North-East since 1983, and only focus on acts committed from 05 December 2005 to 29 January 2009?

These are then some of the reasons why Arundhati Roy needs to re-write the piece she once titled ‘The end of imagination’ (see Roy’s The Algebra of Infinite Justice). One reaches the end of imagination when the genocide-accusation is the only hope of salvation amidst facts and ground realities of the above kind. Even Raphael Lemkin, the renowned jurist who wrote ‘Axis Rule in Occupied Europe’ in 1944 and was instrumental in persuading the UN to adopt the Genocide Convention of 1948, would be twisting and turning in his grave due to the utter irresponsibility with which people have begun accusing the Government of Sri Lanka of genocide, when facts, ground realities and simple common sense should prove the contrary.

In her article ‘The end of imagination’, she states, referring to the nice justifications provided for the possession of a nuclear bomb by the nuclear states: ‘What wonderful, willing, well-behaved, gullible subjects we have turned out to be’. But oh Roy, amidst all the hard work and the massive humanitarian effort that is in place to rescue our own Tamil people from the brute clutches of a terrorist organization, what a wonderful, willing and gullible subject of the LTTE you seem to have turned out to be, when ‘genocide’ is all that you can see, and all that you can sniff.

(The writer holds an LL.M. degree from University College London (UCL).)

-Sri Lanka Guardian