Columns

If it came as a surprise that the Northern Chief Minister Vishvalingam Wigneswaran had helped write the now infamous genocide resolution, had presented it and had it passed by the Northern Provincial Council unanimously, resolving that the Sinhalese are a demon tribe of barbaric genocidal racists bent on exterminating the Tamil people from the face of Lanka, then what astonished was the implication that this once sober judge who graced the Supreme Court bench and delivered legal pronouncements that were admired and respected for its sagacity and impartiality, had evidently flipped his lid after barely 16 months of placing his judicial bottom on a political hot seat.

Gone, in the text of his resolution, was his logical reasoning that had distinguished his judgments, fled was his trained trait to support his decisions on solid evidence and absent was his keen objectivity that had embellished his legal decrees that it seemed clear he had not only left his full bottomed wig on the judicial bench when he retired from it but had also divested himself of his sense of propriety and fidelity to the truth with it.

The Northern Provincial Council’s declaration — made on the tenth of this month to the world at large and to the Office of the High Commissioner for Human Rights in particular — that the Sinhalese were led by a successive bunch of psychopathic leaders who considered Hitler’s “Final Solution” as the most expedient method of settling the Tamil problem, also called upon the UN body to add ‘genocide’ to the charges of war crimes and crimes against humanity and to submit a report at the March session of the UN Human Rights Council. Thereafter it should refer its findings to the International Criminal Court for prosecutions, Chief Minister C. V. Wigneswaran declared in the resolution.
Never mind that the contents of this ‘genocide resolution’ is an unwarranted, vicious diatribe levelled against the majority race without any rhyme or reason. What is more pertinent is why the man who was hailed as the star of Northern hopes in October 2013 — when he was sworn in as Chief Minister — for the moderate influence it was then believed he would bring with him to the office, should now, instead of leading the Tamil people to realise a better future forged on amity, attempt to take them back to the painful past; and, having breathed new life into long dead vampires with stake riven hearts, leave them there in that ghastly sepulcher to squabble in yet another inane bout of dangerous pettifogging.

The charge is serious. Genocide is not a word to be bandied about. It was first coined in 1944 by a Polish-Jewish lawyer Raphael Lemkin to describe the systematic slaughter of six million Jews in the Nazi holocaust. Given the disturbing connotation of the word, it is clear that it is one that should be used with utmost care and discernment. Not one to be thrown like confetti for amusement and trivialised for sport. But blackening the Sinhala name has always been the name of the game for Tamil politicians. It is nothing new. Except this time, the difference is that it is a former Supreme Court judge who is doing it, who is demonstrating conduct unbecoming of one who had held so exalted a post.

But, after having taken credit for presenting this mischievously malicious resolution, Wigneswaran would clearly know the true and full import of the distressing word; and would also know, no doubt, the deep hurt such callous trampling on the sensitivities of the Sinhala soul would cause. His reported assurances to President Maithripala Sirisena that the resolution is not against his government but is only targeted against the former Rajapaksa government cuts no ice and can cast no saving grace for all previous governments, including the present, were elected by the majority Sinhalese who must thus bear the ultimate moral responsibility, especially after having voted the Rajapaksa government twice into power.

The Sinhalese do not deny that there were race riots in 1956, 1958, 1977 and 1983 and that Tamils were killed. Wigneswaran’s ‘genocide’ resolution puts the figures at 150 killed in 1956, 300 in 1958, 300 in 1977 and 3,000 in 1983. Whilst not condoning the attacks made by a few demented mobs in any form, are these the sort of figures that give rise to an accusation of genocide against the Tamils? Given the fact that there was a period of 19 years between the 1958 and 1977 attacks and that a further period of six years passed before the 1983 attack occurred, do they proffer compelling evidence of a deliberate intention by the Sinhalese to exterminate the Tamils of Lanka, as required by the definition of the word ‘genocide’?

Tragic as it is, do they not reveal that they were but sporadic incidents of racial violence flaring at certain times, sparked off by charged emotions existing in those special circumstances? Especially since as Wigneswaran himself admits in his ‘genocide’ resolution that all these incidents were the result of ‘false rumours’ spread which’ galvanised’ Sinhala mobs to attack?

False rumours, however potent they maybe, do not and cannot guarantee desired results. Is Mr. Wigneswaran asserting that the supposed

Wigneswaran: Sounding more like an ill-tuned cymbal with his genocide resolution

systematic campaign of genocide against the Tamils was done by the Sinhalese on the basis of chance, on the off chance that a false rumour shot in the dark might hit its mark and conflagrate the landscape, cause spontaneous combustion? Can a charge of genocide be maintained on such flimsy grounds? If so then the many racial riots in America, including the recent one in 2013, must brand the nation as one hell bent on genocide.

In fact a charge of genocide was brought against the USA based on the treatment of blacks in the America in 1951. Titled ‘We Charge Genocide’, the Civil Rights Congress listed in its 237 page petition to the UN “the lynching and other forms of assault on the lives and livelihoods of African Americans from 1945 to 1951, especially the frenzied attacks on returning black American veterans, amounted to genocide.” However, it was argued by Lemkin, the man who came up with the word ‘genocide’ that the provisions of the Genocide Convention had no relation to the US Government or its position vis-a-vis Black citizens. Facing political realities, the UN did not adopt the resolution.

Yet the presenters of ‘We Charge Genocide’ hailed it a clear victory for their campaign to advance the rights of African Americans in the US, by highlighting their plight at an international forum. The petition’s main author William Patterson thought that ‘the action itself of presenting the petition to the United Nations was a signal symbolic success in drawing attention to the situation of African Americans in the postwar world: ‘An ideological and moral victory had already been won, the moral bankruptcy of US leaders even in the UN had been exposed.’

Is that what the Northern Provincial Council Resolution’s author, Chief Minister Wigneswaran, hopes to achieve? If so, at what costs? Has he considered the consequences of his brazen attempt to rekindle Lanka’s racial fires to roast his ethnic nuts? While the sturdy edifices of America’s democracy may be able to withstand such an onslaught at an international forum without getting the shakes, can the same be said of Lanka when it is just recovering from a thirty year ethnic war? While the nation’s Sinhalese and the Tamils are in the process of coming to terms with the losses they both suffered as a result and are involved in the reconciliation process with their tears still to dry, is this the time to rouse Sinhala resentment once again by resurrecting charges allegedly committed by the Sinhala people and their leaders against the Tamils and placing them before the international gaze to worldwide condemnation and opprobrium? Is this the way mutual trust is built, confidences in the bona fides strengthened in Mr. Wigneswaran’s eye? Is this the Wigneswaran way to earn the goodwill, cultivate the friendship and beget the trust of Sinhalese who constitute 73 per cent of the population? By hurling canards and flaying the Sinhalese, isn’t he further broadening the chasm that presently exists?

According to Chief Minister Wigneswaran the resolution had been brought to ensure that the Tamil issue remained in the international spotlight. But already with a United Nation’s inquiry on, probing alleged war crimes, does it need a Wigneswaran from Jaffna to add another blot to the blotched canvas? Another blackhead to darken the already acne ridden, pock marked face of Lanka?

So much for the ‘Historic Genocide’ as alleged in Wigneswaran’s resolution upto Black July in 1983. He then turns upon what he calls ‘Recent Genocide’ and lists a series of charges, the most serious one being that the Lankan Government “intentionally corralled Tamils into the so-called No Fire Zones in 2009, in a calculated and deliberate attempt to destroy as many Tamils as possible”

To all sense and purposes it seems a gross misinterpretation maliciously made, as to what occurred during the last stages of the war when the Tigers were on the run and sought protection amongst the civilians, using them as a human shield. To say that Sri Lankan Forces lured innocent civilians into these areas not to protect them but to entrap and slaughter them en masse is a grotesque distortion of the truth and reveals the extent that Mr. Wigneswaran would go to achieve his dastardly objective. He further alleges that by the end of January 2009, the Government Forces were killing about 33 Tamils per day and 116 by end of April and that this too surged with 1000 Tamils being killed each day until the 19th of May when the war officially ended. His source for this alarming figure is some Permanent People’s Tribunal on Sri Lanka. He also quotes the Bishop of Mannar who has claimed that 146,679 people are not accounted for in Wanni after the war.

Are these claims made by a few individuals with their own agendas enough evidence to base a charge of genocide? Has Wigneswaran ever met them, probed the genuineness of their claims, cross examined them under oath, questioned the accuracy of their memory? Will the International Criminal Court, which he hopes will finally prosecute, consider many of these claims as violating the hearsay rule of evidence and thus rule it as inadmissible? Has he considered the possibility that these claims may be exaggerated or totally concocted by interested parties to promote the case for the establishment of a separate Tamil state of Elam on Lankan soil? And more than anything else, do these claims justify a charge of genocide?

Genocide is described in the UN Convention on Genocide as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Social and political groups are excluded.

In 2009, the Sri Lankan Armed Forces were engaged in a deadly battle with Tamil terrorists. In the course of military operations, the broad acres of the land become the killing fields of war. That is inevitable in any battle and legally justified, provided the rules of engagement are adhered. It is only when soldiers overstep the permitted ambits of conduct as prescribed by the international Law Of War, that their actions invite the charge of war crimes. The mere fact of killing alone is not sufficient to frame an indictment of genocide. The manifest intent to commit genocide as defined by the UN Convention on Genocide must be proved. The question that must be asked is whether, even if there is some truth in the claims made and contained in Wigneswaran’s genocide resolution, the alleged acts tantamount to genocide as defined by the UN genocide convention. Furthermore the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia have both held that ‘biological-physical destruction’ was necessary for an act to qualify as genocide and not merely ‘the intent to destroy a national, racial, religious or ethnic group was enough to qualify as genocide’.

And as to ‘whole or in part’ phrase in the definition, the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic (2004) that “the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole.” The judges further held that “the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.”

Thus Mr. Wigneswaran should have known he had many hurdles to jump before a charge of genocide could be leveled against the Sinhalese. First it had to be determined whether the Lankan Forces were engaged in battle and the killings as claimed took place in the ordinary course of warfare and were done out of military necessity with the aim of successfully defeating the enemy and restoring peace to the land as they were duty bound to do or whether the Army’s intention was to deliberately destroy the Tamil people, in whole or in part.

Secondly, even if the claims that thousands were killed by the Lankan Army are true, the question would have arisen, as per the judgment in the Radislav case, whether those killed were a substantial part of the Tamils of Lanka, since, as the judges underscored, the convention’s aim is to prevent the intentional destruction of entire human groups or it must be significant enough to have an impact on the entire group. But did these legal impasses halt the lawyer in Wigneswaran? No. Instead he recklessly went with his genocide resolution and damned the Sinhalese merely for the sake of damning.

The alleged mass scale killings, the supposed abortions done on expectant Tamil mothers and all the other claims made in Wigneswaran’s resolution may well be prima facie evidence of war excesses and may form the basis of war crimes charges. But without the necessary intent to cause actual biological physical destruction of the entire Tamil populace or a substantial part of the populace which has a significant impact on the Tamils as a whole, it can offer no ground upon which to found a heinous charge of genocide.

All that Wigneswaran has achieved by his rash and reckless act is to have lent his good name and political position to Tamil Eelamists to keep their dream of establishing a separate state alive internationally. Now with Mr. Prabhakaran dead and finding they can no more realise their dream by dictating through the barrel of a gun, they have now resorted to use Mr. Wigneswaran as the megaphone to blare alleged Sinhala atrocities to the world; and the retired supreme court judge, perhaps out of nested naivety, perhaps out of setting senility, has shown he is more than willing to be their mouth speak to trumpet genocide against the Sinhalese.

M. Wigneswaran says that his genocide resolution was an “expression of the emotions and feelings of the Tamil people.” Is it really? The emotions and feelings of the majority of the Tamil people found genuine expression on the 4th of February this year when TNA’s senior leader and Parliamentarian R. Sampathan ended a 43-year Tamil boycott of a national event and graced the Independence Day commemoration event at Independence Square. For the first time since 1972, a Tamil leader from the main Tamil party joined hands with Sinhala and Muslim leaders to mark the national day of freedom and demonstrated the new Tamil commitment to become Sri Lankans first and Tamils second.

Six days later, after Sampathan had so carefully prepared the pitch to promote goodwill and harmony amongst the Sinhalese and the Tamils, Northern Chief Minister Wigneswaran had to go and queer it.