Tamil National People’s Front (TNPF) leader Gajendra Kumar Ponnambalam’s recently commented that Tamils will never get justice as long as the process for holding the Sri Lankan state accountable for alleged human rights and international humanitarian law violations and war crimes alleged to have been committed during the final stages of the civil war remains frozen within the Geneva United Nations Human Rights Council (UNHRC). He added that the fact that no foreign government is prepared to bring Sri Lanka before any court in the current situation, reflects the predicament of the Tamil polity’s efforts so far to seek the international community’s assistance on the issue of accountability.

Kasipillai Manoharan, the father of Rajihar, one of the five Tamil students brutally killed by the Special Task Force (STF) on Trincomalee beach on January 2, 2006, died in London in late September.

The Tamil media, especially the newspapers attached great importance to Ponnambalam’s speech on the theme of ‘Gathering evidence against genocide under international intervention; weaknesses and possibilities’, at an event organized by ‘Makkal Seyal’ (People’s Action) in Jaffna on October 6 to remember and pay tribute to Manoharan who fought for justice for the killing of his beloved son to his last breath and all those who have been denied justice to date. 

Ponnambalam explained the present status of the efforts made so far by the Tamils to seek the help of the international community to hold the Sri Lankan government accountable.

He reiterated his party’s position that all resolutions adopted by the UNHRC since 2012 have only served as instruments aimed at achieving the geopolitical interests of the international powers and have not been able to ensure justice and accountability to the affected people.

He has taken a firm stand that what happened to Tamils in Sri Lanka was genocide, accusing the Geneva processes of narrowing down what happened to the Tamils to just war crimes and crimes against humanity. It seems that he strongly believes that it will never be possible to hold the Sri Lankan government accountable for ‘genocide’ through the UNHRC.

It is pertinent to see his comments in the context of the resolution on Sri Lanka passed on October 6 during the 60th session of the UNHRC. 

The new resolution extended the mandate of the Office of the United Nations High Commissioner for Human Rights( OHCHR) accountability and reconciliation in Sri Lanka. This means that the evidence-gathering mechanism being carried out by the Sri Lanka Accountability Project (OSLAP)  which was already established in the OHCHR according to the previous resolutions, is being extended for another two years. The National People’s Power (NPP) government had rejected it outrightly.

The Tamil National Council  which includes the TNPF and some other Tamil political parties and civil society organisations, and the Ilankai Thamuzharasu Katchi (ITAK) sent separate letters to the High Commissioner for Human Rights and Member States of the UNHRC ahead of the beginning of its session in early September. In the letters, both sides stated what they felt should be included in the resolution to be adopted by the UNHRC on Sri Lanka.

Tamil National Council said that they had no objection to the extension of the mandate of the OSLAP being extended but it must be time bound and coupled with an explicit message urging the UN Secretary General / UN General Council / UN Security Council asking for referral of Sri Lanka to the International Criminal Court (ICC).

Meanwhile the ITAK said in the letter that although a referral to the ICC through a process of a Security Council resolution is almost impossible, resolution should persuade the Sri Lankan state to sign and ratify the Rome statute as has been recommended by the National Human Rights Council and the UN High Commissioner for Human Rights.

The new resolution clearly showed that those requests of the Tamil parties were not taken into account by the countries of the Core Group, including Britain and Canada, which brought the resolution on Sri Lanka in the UNHRC.

The Tamil polity which had expected the new resolution to be more stringent than the previous resolutions, was deeply disappointed. However, the ITAK welcomed the extension of the international community’s monitoring of Sri Lanka for another two years.

“A resolution to promote accountability and reconciliation in Sri Lanka has passed the UN Human Rights Council without a vote. We welcome the extension of international monitoring of Sri Lanka for another two years, despite the fact that various resolutions have been passed since 2012 and we are dissatisfied with the lack of progress for 16 years”, Sumanthiran said in a post on X (formerly Twitter).

Although the NPP government rejected the new resolution, it did not challenge it by demanding a vote in the UNHRC. The fundamental problem for the  government is  the two-year extension of the evidence gathering mechanism.

Briefing Parliament on the government’s position, Foreign Minister Vijitha Herath said, “If a credible national mechanism had been put in place immediately after the end of the war, Sri Lanka’s accountability problem would not have persisted in Geneva for 16 years. The internationalisation of the issue was due to the narrow political objectives  and short-sightedness of the previous leadership.” 

With the resolution asking the OHCHR to first submit a written report to the 63rd Session and a comprehensive report to the 66th session on the progress of accountability, reconciliation and human rights in Sri Lanka, the question arises as to how much the Government of Sri Lanka will be interested in the issue of accountability for the next two years.

It was customary for Sri Lankan  governments to make certain declarations to satisfy the international community only before the sessions of the HNHRC began. The NPP government’s  approach to the ethnic question has not been such as to give hope that it will display the political courage necessary to deviate from that course.

Can the foreign minister, who blamed the narrow political objectives of the previous leadership for the internationalisation of the issue of accountability, persuade the government to establish a domestic mechanism that can at least give some hope to the affected people even at this stage?

At such a juncture, let us look at the views expressed by Gajendra Kumar Ponnambalam on what he sees as the options available to the Tamil polity to exert pressure on the Sri Lankan government.

Supporting  the demand for a common framework across political party lines to deal with the issue of accountability, he said  that some deep truths need to be understood while deciding on such a framework.

Ponnambalam acknowledges that the ICC is the only institution that Sri Lankan Tamils can approach  for accountability among the current  international frameworks. At the same time, he points out that only a  state can prosecute another in the International Court of Justice (ICJ). 

Ponnambalam cited  the case of Myanmar as an example of his argument that Sri Lanka can be brought before the ICC,  even if it did  not sign the Rome Statute. The ICC can intervene only if a state is unable or unwilling to prosecute those responsible for international crimes.

The Prosecutor’s Office at the ICC filed a complaint against the Myanmar government for its atrocities against the Rohingya Muslim population. Myanmar is also not a signatory to the Rome Statute. But the ICC is exercising its jurisdiction on the basis that Bangladesh, where hundreds of thousands of Rohingya have fled persecution by the Myanmar government, has signed the statute and that the persecution of those people has also taken place in Bangladesh.

The Prosecutors at the ICC  have asked for a warrant to be issued for the arrest of Myanmar’s military leader on charges of committing crimes against humanity against the Rohingya people. This is the current status of the investigation against Myanmar in the ICC.

The ICJ  is also currently hearing a case filed in 2019 by Gambia, a small African country, against the Myanmar government for not preventing the genocide of the Rohingya people and not punishing those responsible for the genocide. In 2020, the court issued an order compelling the Myanmar government to take steps to prevent genocide. 

The ICJ has no formal mechanism to implement its rulings. In the end, even the implementation of the decisions becomes a political matter involving the five permanent members of the UN Security Council, who have the veto power.

The decisions of the ICC can be implemented by states that have signed the Rome Statute. Another important question is how many states have been able to implement the court’s decisions in an effective manner so far?

In this context, future approach to be adopted by the Tamil polity should be based on the experience of the efforts made by it over the last 16 years to enlist the help of the international community to hold the Sri Lankan government accountable. The Geneva resolution of October 6 clearly shows that the international community has no interest in applying considerable pressure on the current Sri Lankan government on the issue of accountability.

In such a situation, the time has come for the Tamils and the parties that represent them to rethink the approaches it has adopted so far in terms of finding a political solution to the ethnic problem and seeking accountability for the alleged crimes committed in the final stages of the war.

It is also important to understand the contradiction between demanding a political solution and accountability parallelly from the Sri Lankan state. Needless to interpret this as an argument for the abandonment of either of the two demands. But how can one think of the 

next step without making an objective assessment of the merits and demerits of the strategies that have been adopted so far?