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tamils at UKGlobal Rights Compliance LLP (GRC) has submitted an Article 15 Communication (Communication) to the Prosecutor of the International Criminal Court (ICC) on behalf of 200 Eelam Tamil victims who have been subjected to the crimes against humanity of deportation, deprivation of the right to return home and persecution in Sri Lanka and the United Kingdom (UK) by the Government of Sri Lanka (GoSL). 

This issue of ABEL carries an Executive Summary of this Article 15 Communication. Those who are really interested in taking forward the legal battle for justice should not mind the trouble of going through this somewhat lengthy legal and historical document.

The Communication identifies a number of GoSL officials who should be investigated by the Prosecutor of the ICC as potential perpetrators of these crimes due to the evidence of their command or authority over the Sri Lankan security forces directly implicated in the commission of these crimes since 2002, including the Sri Lankan Police (SLP) and the Sri Lankan Army (SLA). These include: President Gotabaya Rajapaksa, Secretary of Defence Kamal Gunaratne, former Chief of Defence Staff of the SLA, Jagath Jayasuriya, former Deputy Inspector General, SisiraMendis, and the numerous Inspector-Generals and commandants of the Special Task Force of the SLP.

The submission was made ahead of the UN Climate Change Conference (COP26) 2021 which was held in Glasgow, Scotland between 31 October and 12 November 2021. In parallel, the Communication was forwarded to the Metropolitan Police of the UK for the initiation of an investigation and the issuance of arrest warrants against President Gotabaya Rajapaksa and other members of the Sri Lankan delegation who would participate in COP26. 

The victims have been subjected to what they rightly term “a vicious campaign of violence against Tamils.” They, and thousands of other innocent Tamils, have been abducted, unlawfully detained and tortured by the Sri Lankan security forces led or supported by these individuals on nothing more than unsubstantiated allegations of their previous involvement with the Liberation Tigers of Tamil Eelam (LTTE). There can be no doubt about the perpetration of these crimes against humanity. Their evidence is clear, convincing and corroborated by a myriad of independent voices, from Sri Lankan experts, to the UN, the EU and Amnesty International and Human Rights Watch reports.

The Sri Lankan Police (SLP) and the Sri Lankan Army (SLA) are chiefs amongst those systematically abducting, unlawfully detaining and torturing many Tamil individuals suspected as being in any way associated with the LTTE or espousing separatist ideas. However, the GoSL makes no distinction between those with these political beliefs and the thousands of Sri Lankan men, women and children who wish for nothing but a place in Sri Lanka to call home. Those who were lucky enough to successfully escape the country face years of surveillance, threats, and collective punishment as their families bear the continued wrath of the GoSL. The GoSL denies them safety and security and prevents them from returning home. As their UK status as refugees confirm, they cannot return – the risk of persecution is too great.

As they stated themselves in a joint statement: 

The criminal acts of the GoSL authorities have destroyed our lives. We all suffer from various mental illnesses (including post-traumatic stress disorder and depression) caused by our suffering at the hands of the GoSL authorities, the threats and harassment that our families are subjected to and being parted from our homelands and loved ones. The uncertainty that we had to go through during our respective asylum application processes in the United Kingdom, with the possibility of being handed over to our torturers in Sri Lanka, also took its toll on our mental health. We live as shells of our former selves, unable to cope with the mental suffering that the GoSL has inflicted and continue to inflict on us every day. 

The ICC can and should intervene in the situation in Sri Lanka and investigate these crimes against humanity. These victims suffer the cruelty of ethnic cleansing and persecution that separates them from their loved ones and prevents them from returning home. These crimes have commenced in the territory of Sri Lanka with the abduction, detention and torture of the victims. They continued into the UK as the threats, harassment, and persecution continue on UK soil. Under the principle of universal jurisdiction, the UK should investigate and prosecute suspected perpetrators of crimes against humanity. If the UK are not willing or able to take action, then the ICC should ensure that justice is done. 

Mr. Wayne from the Global Rights Compliance, with a strong track record in such legal exercises, was questioned in an interview on what he believed are prospects of success of the ICC permitting an investigation into the crimes committed in Sri Lanka, Wayne answered that “this is the strongest communication I have submitted to the ICC”. “There is overwhelming evidence of the range of acts of abduction, unlawful detention, torture, deportation, deprivation of the right to return, persecution in the UK, persecution where the Tamils end up in another country seeking refugee status. There is no doubt that these crimes occurred, there is no doubt that they are continuing to occur. The question will be whether these men we allege are responsible, and to what extent.”

He added: “I would say the evidence against them is really looking pretty strong,”

In the long march to justice, it is quite a new avenue to traverse, and there is some hope based on the points of law and of fact, which sound strong enough to for the ICC Prosecutor to initiate action.

- Thiagu

(This article was published in Fortnightly Magazine 'Abel', Oct 30, 2021)

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