While Eezham Tamils are searching for international mechanisms to bring those who bear responsibility for the "Crime of the century" of killing more than 80,000 Tamil civilians in Mu'l'livaaykaal in 2009, to justice, human rights activists are elated but reminded that the "march of justice can be slow" in the recent trial of Hissen Habre, a former dictator from Chad, in the courts of Senegal. The trial began on 20th July, for alleged crimes of mass killings, torture, disappearance as part of ethnic cleansing in the 1980s, crimes that have stark parallel to those committed in Sri Lanka. US State Department, in their selective approach to dealing with International Crimes, saved former SL President Rajapakse in the US Courts of Law suggesting sovereign immunity, an archaic legal doctrine that allows the US Executive branch to protect even genocidaires from legal action.
Attorney for the Tamil plaintiffs in the US case, Bruce Fein, said of the of US involvement in protecting the former SL President, the US diplomats have also gone on the record as complicit in war crimes: "[n]either the Constitution, nor the Torture Victim Protection Act (“TVPA”), nor customary international law (“CIL”) crowns the Executive with exclusive authority to determine whether a sitting head of state is immune from a TVPA suit founded on the grisly and universally abhorred crimes of torture or extrajudicial killing under color of foreign law," and argued that the Court should reject the U.S. State Department's contention that "when the Executive speaks on immunity, the judiciary is ousted of jurisdiction to interpret the law, [and that the] Adjudication of the case moves from Article III courts to the Article II President."
Hissan Habre
Hissan Habre
While Senegal has been promising to bring him to trial after Belgium issued an arrest warrant for Habre in 2005, the move towards a trial was triggered by the 2012 ruling by the International Court of Justice (ICJ) which ordered Senegal to bring Habre to justice "without further delay" either by domestic prosecution or extraditing Habre.
Habré will stand trial before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990.
Judge Gberdao Gustave Kam of Burkina Faso, president of the Trial Chamber, will hear the case along with two senior Senegalese judges. The trial is expected to last three months, with about 100 witnesses and victims expected to testify, Human Rights Watch said in its website.
Political historians say that US provided military aid to Chad during Habre regime as a bulwark against Libya's Gaddafi's attempt to destabilize Chad [Chad has a border with Libya], and therefore, shares partial responsibility for the conduct of the dictator.
Tamil legal activists say that the Habre's predicament rose after Belgium was able to initiate proceedings in the ICJ.
A similar situation for Sri Lanka's criminals will arise either in the ICJ or in the ICC in the future if the confluence of events in the geopolitical sphere work in favor of affected Tamils.
Professor Francis Boyle has intimated that once expatriate Tamils identify a UN member nation that is willing to file a similar extradition proceedings on behalf of domiciled Tamils affected by war, then the legal climate in prosecuting alleged war criminals including Rajapaksa sibling Gothabaya, Generl (retd.) Sarath Fonseka and a host of military commanders holding positions in and outside Sri Lanka will change.
UN observers say, the alternative forum, the UN's International Criminal Court, (ICC) lies toothless under the ineffective, and perhaps West-subservient leadership of UN Secretary General Ban Ki Moon, and its nepotism-infected officials close to the UNSG.
Again, Prof. Boyle commented on the UN's approach to Sri Lanka: "The United Nations and its Secretary General Ban Ki-Moon did not lift one finger to prevent and to stop the ongoing genocide against the Tamils by Sri Lanka in Vanni in 1999. Since the United Nations and SG Ban Ki-Moon had an obligation to do so, that renders them all “complicit” in the GOSL genocide against the Tamils in violation of Genocide Convention article 3(e) that prohibits and criminalizes “complicity in genocide.”
"I have documented these matters in my book The Tamil Genocide by Sri Lanka (Clarity Press: 2010) and in the subsequent comments I have written for Tamilnet. So I will not bother to repeat any of that analysis here.
"What is needed now is for the United Nations to establish an outside Independent Commission of Investigation of distinguished experts along the lines of the Rwanda Commission with a mandate to investigate the entirety of GOSL atrocities against the Tamils. Only then might the United Nations atone for its Mortal Sins against the Tamils. Otherwise, the entirety of the United Nations Organization shall always remain Guilty as Sin for what it did not do for the Tamils-- Just like Rwanda and Srebrenica," Prof. Boyle said.
Tamil legal activists say, while any action by the ICJ or the ICC on Sri Lanka's war criminals will be welcomed, there is enough legal space in several countries for Tamil victims to initiate independent legal proceedings. Sustained pressure on the Sri Lankan state in the "independent" courts of the Western democracies will likely bring relief, political as well as justice for Tamil victims, the Tamil activists say.
