Kurdish jurist urges Tamils to work towards referring Sri Lanka to the ICC

A Kurdish jurist based in the Kurdistan Region of Iraq has urged Tamils to work towards referring Sri Lanka to the International Criminal Court (ICC).

In an opinion piece sent to Tamil Polity, Mr Awara Hussein, a lawyer and lecturer at the University of Halabja, said, ‘Our suggestion for Tamil people engaged in the struggle abroad is to lobby UN agencies and UN organs, especially the UN Security Council for passing a resolution for referring the Genocide of Tamils to the ICC.’

Below is the full opinion piece:

”18 May 2018 marks the ninth anniversary of Tamil Genocide. Nine years ago the Tamil nation faced the largest genocide by the Sri Lankan state, with regional and international support. After the Sri Lankan state denied all the natural and legal rights of Tamils, the Tamil nation by led their beloved leader Velupillai Prabhakaran founded the Liberation Tigers of Tamil Eelam (LTTE) on May 5, 1976. For more than six years, the Tamil Tigers peacefully sought for the restoration of their denied rights, but they did not get any positive response from the Sri Lankan state. At the end of 1982 and the beginning 1983, the Tamil Tigers launched a war against the Sri Lankan state and sought to create an independent state of Tamil Eelam in the north and east of Sri Lanka for Tamil people. But unfortunately on May 18 and 19, 2009, the LTTE was defeated and it became the genocide of 146,679 Tamils by the Sri Lankan state.

Those international crimes, which have been committed against Tamils, constitute genocide under Article 2 of the UN Convention for the Prevention and Punishment of the Crime of Genocide. During that time and after, the UN and the international community failed to protect Tamil rights under international law.

The International criminal court (ICC) is the one and only permanent international criminal court for trying  and investigating international crimes and international criminals. The court was established on July 17, 1998 and became operational on July 1, 2002. 

The main headquarters of the court is located in Hague, the Netherlands. The Court has jurisdiction in accordance with its Statute with respect to the following crimes: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression.

The court is not an alternative for national courts but complementary for them. According to Article 17 (1) (a) of the Statute of the court, if a national court is unwilling or unable genuinely to carry out the investigation or prosecution, then the ICC could complement and investigate the case.

It is clear that the national court of Sri Lanka not independent and is unwilling to try Mahindra Rajapaksa and other individuals who are responsible for the genocide of Tamils. It is this that makes it imperative for Tamils to turn to the ICC to exercise its jurisdiction over Sri Lanka. One of the challenges confronting the ICC is that Sri Lanka is not a member state. However, for referring the genocide of Tamils to the ICC, we have sixth methods. One of these methods is to refer the case to the UN Security Council, under Chapter Seven of the UN Charter and in accordance with Article 13 (2) of the Statute of the ICC. 

We have two examples of international crimes being referred to the ICC through the UN Security Council. One of them is the situation in Darfur (the genocide in Darfur). UN Security Council adopted Resolution Number 1593 on March 31, 2005. The Council referred the situation in the Darfur Region of Sudan to the ICC and required Sudan to co-operate fully. It marked the first time the Council had referred a country to the Court, and also compelled a country to co-operate with it, especially as Sudan was not a member state.

The UN Security Council also adopted Resolution number 1970 on February 26,  2011, referring the situation in Libya to the ICC. It condemned the use of lethal force by the government of Muammar Gaddafi against protesters; also imposing a series of international sanctions on the regime. It must be noted that Libya is also not a member of the ICC.

Our suggestion for Tamil people engaged in the freedom struggle abroad is to lobby UN agencies and UN organs, especially the Security Council, for passing a resolution for referring the Genocide of Tamils to the ICC.”

(Edited by Tamil Polity)