This afternoon some 50 representatives of NGOs gathered at the UN Kuala Lumpur office and submitted the memorandum, reproduced in full below. In the memorandum the Secretary General of the UN, Ban Ki-Moon was aked to institute investigation aginst Sri Lanka for the genocide, Crimes against Humanity and War crimes that it had committed during the last phase of  its war against the LTTE in 2009. (VIDEO)

MEMORANDUM

The Honorable Mr. Ban Ki-Moon,
Secretary-General of the United Nations
United Nations Secretariat,
New York, NY 10017

APPOINT INDEPENDENT INVESTIGATION
UNDER ARTICLE 99 – UN CHARTER

Investigate Sri Lanka for Genocide,
Crimes Against Humanity and War Crimes
Perpetrated by the Sri Lankan Governmentagainst the Tamil civilians
Before, during and after the 2009 civil war in Sri Lanka

Through,

UN Malaysia
Wisma UN Block C
KompleksPejabatDamasara
Jalan Dungun
50490 Kuala Lumpur
Tel: 603 2095 9122 Fax: 603 2095 2870

13 February 2013

Your Excellency,

APPOINT INDEPENDENT INVESTIGATION UNDER ARTICLE 99

– Investigate Sri Lanka for Genocide, Crime Against Humanity and War Crimes

We, representing various civil society groups and individuals in Malaysia and Malaysian Parliament Caucus on Sri Lanka, urge you to use your inherent power  under Article 99 of the UN Charter to appoint an Independent Investigation team to examine the Crime of Genocide, Crimes Against Humanity and War Crimes perpetrated by the Government of Sri Lanka against the Tamil civilians before, during and after the 2009 civil war in Sri Lanka.

We congratulate you for appointing a Panel of Experts with the mandate “to advise [him] the modalities, the applicable international standard and comparative experience relevant to an accountability process, having regard to the nature and scope of alleged violation of international humanitarian and human rights law during the final stages of the armed conflict in Sri Lanka”

The Panel published its report on March 31, 2011. The Panel in its report stated inter alia

“Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.

Specifically the Panel found credible allegations associated with the final stages of the war. Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths. This campaign constituted persecution of the population of the Vanni. Around 330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE. The Government sought to intimidate and silence the media and the other critics of the war through a variety of threats and actions, including the use of white vans to abduct and to make people disappear.

The Government shelled on a large scale in three consecutive No Fire Zones, where it had encouraged the civilian population to concentrate, even after indicating that it would cease the use of heavy weapons. It shelled the United Nations hub, food distribution lines and near the International Committee of the Red Cross (ICRC) ships that were coming to pick up the wounded and their relatives from the beaches. It shelled in spite of its knowledge of the impact, provided by its own intelligence systems and through notification by the United Nations, the ICRC and others. Most civilian casualties in the final phases of the war were caused by Government shelling.

The Government systematically shelled hospitals on the frontlines. All hospitals in the Vanni were hit by mortars and artillery, some of them were hit repeatedly, despite the fact that their locations were well-known to the Government. The Government also systematically deprived people in the conflict zone of humanitarian aid, in the form of food and medical supplies, particularly surgical supplies, adding to their suffering. To this end, it purposefully underestimated the number of civilians who remained in the conflict zone. Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days.

The Government subjected victims and survivors of the conflict to further deprivation and suffering after they left the conflict zone. Screening for suspected LTTE took place without any transparency or external scrutiny. Some of those who were separated were summarily executed, and some of the women may have been raped. Others disappeared, as recounted by their wives and relatives during the LLRC hearings. All IDPs were detained in closed camps. Massive overcrowding led to terrible conditions, breaching the basic social and economic rights of the detainees, and many lives were lost unnecessarily. Some persons in the camps were interrogated and subjected to torture. Suspected LTTE were removed to other facilities, with no contact with the outside world, under conditions that made them vulnerable to further abuses.”

Following the UNSG Panel Report, a People’s Tribunal was established in Dublin. It held a hearing from January 14 -16, 2010. In its finding  it stated inter alia

“There were numerous accusations that Sri Lankan security forces were guilty of violating the Geneva Conventions on warfare and of having committed gross war crimes and crimes against humanity, particularly during the last five months of the war, between January and May 2009. The charges included the bombing of civilian habitations, hospitals, and government-proclaimed ‘safety zones’ or ‘no fire zones’ by security forces, causing innumerable deaths of civilians, doctors and aid workers. Additionally, the charges also included depriving the population of essential services such as food, water, and health facilities in war zones, and other grave crimes against humanity.” (Dublin Report)

“In its work the Tribunal was reminded several times that this civil war was a ‘war without witnesses’ because the GoSL (Government of Sri Lanka) had prevented either national or international media coverage. In fact, some of the early victims were the many journalists that were murdered by unknown assassins, something which appeared to serve the agenda of the Government by silencing critical opinion” (Dublin Report) – strategic elimination of observation, control of public reaction.

“The atrocities carried out by the military relate particularly to civilians, and there is evidence of cluster munitions being dropped by warplanes. Some witnesses reported that white phosphorous was used in violation of international law. Several witnesses had seen burn marks on wounded civilians. Others believed that indications of napalm were apparent, and evidence of other incendiary devices has been confirmed by doctors who had cared for hundreds of Tamil civilians wounded in this manner” (Dublin Report)

According to the UN Internal Review Report, your legal advisors have determined that you have the right under Article 99 of the UN Charter to establish an international independent mechanism.  It is true that domestic recourse should be explored before any international mechanism is fashioned.  However, as observed by the UN Internal Review Report as well as by Professor Steven Ratner, in an article published in the most recent ‘American Journal of International Law ,’ there is no environment to address accountability and dispense justice for these crimes domestically in Sri Lanka.

1. “The LLRC was fundamentally constrained by a mandate that did not focus on actually accountability and by the lack of an enabling environment for judicial follow up” [UN Internal Review Panel Report]. [Emphasis added]

2. Nearly four years after the war, the Sri Lankan accountability process has finally been set in motion, but in a sense it has barely begun. The majority within the Human Rights Council that the United States cobbled together for the March 2012 resolution may dissipate over time. In the end, states may emphasize other important aspects of national reconciliation within Sri Lanka and may no longer push the question of accountability. It may well be that a full and fair examination by the Sri Lankan government of the state’s own conduct and that of its adversary will need to await electoral developments some years down the road.

Tolerating impunity will not only damage the victims of abuse, but will also set a bad precedent for other countries which evaluate the “Sri Lankan solution” in addressing the national conflicts in their own countries. The ethnic minorities in Malaysia are deeply concerned in this aspect.

Since the most serious international crimes of the 21rst Century took place in Sri Lanka in the recent past, it is necessary to take expeditious action for justice to be obtained before the end of your term.
Noting the above facts, we call upon your Excellency.

a. To establish an independent, international inquiry without delay as recommended in the ‘Report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka’.

b. To send the UN forces to Tamil homeland to prevent further Sinhalisation and land grab of Tamils.

c. Inform the UN Security Council and the General Assembly about the present state of Tamils in Sri Lanka and initiate the process of a free discussion on the issue using your discretionary power under Article 99 of the UN Charter.

d. To publish the report of the Special Adviser on the Prevention of Genocide on Sri Lanka.

e. To recognize the Tamils’ right to Self-Determination.

f. To initiate steps towards the conduct of a referendum among the Tamils originally from North and East Sri Lanka to decide their political future.

Yours sincerely,

K. Arumugam, Chairperson SUARAM

Manogaran Marimuthu,  Member of Malaysian Parliament
Human Rights Organization Secretary of the Parliament Caucus on  Sri Lanka

Gunaraj George , Secretary,  Coalition of Malaysian Indian NGOs

Dato’ Hj Thasleem Mohd Ibrahim Al Haj,   Chairperson,  National Indian-Rights Action Team