The ICTY Srebrenica Genocide Analysis: Implications For Sri Lanka's 2009 "NoFireZones"

By Together Against Genocide [TAG], Wednesday, July 08 2015

 

We reproduce below, extracts of our January 2010 submissions to the Dublin session of the Permanent Peoples Tribunal [PPT] on SriLanka (http://www.internazionaleleliobasso.it/wp-content/uploads/2014/01/Sentenza-Sri-Lanka-and-Tamil-II.pdf ) on the application and implications of the ICTY approach to Srebrenica (articulated in Krstic & others)  to SriLanka,

[Note that casualty and impacted population estimates submitted to the PPT were the conservative prevailing international estimates in 2010, TAGs own internal estimates in 2010 were 50K+ civilian casualties & our current estimates are 100K+ to 130K civilian casualties]

 The two requirements to find genocide, as articulated by the ICTY, are:
  1. The showing that the group was targeted for destruction in its entirety or in substantial part, and
  2. The demanding proof of specific intent.
 
Establishing that a Substantial Part of the Group was Targeted
Some parallels with Sri Lanka are given below:

Srebrenica

Mullaitivu

 

The implicated group was Bosnian Muslims and the part of the group that was targeted for destruction was the Muslims in Srebrenica. The Bosnian Muslim population in Srebrenica at the time of capture was 40,000 – 2.9% of the overall Muslim population in Bosnia and Herzegovina (1,400,000). There were an estimated 8,000 Bosnian Muslim men killed in the massacre at Srebrenica. The implicated group are the Tamils of Sri Lanka and the part of the group targeted for destruction were the Tamils in Vanni.  There were an estimated 250,000+ Tamils within the safe area in Mullaitivu (approximately 7% of the group’s population, if looking at the group as those remaining on the island; approximately 5.5% of the group’s population worldwide).  There were an estimated 20,000 Tamils killed during the onslaught in the safe zone and more during and after the forcible transfer to “refugee” camps. 1
The area of the perpetrators’ activity and control as well as the possible extent of their reach are all factors when considering whether the part is a substantial part, “The intent to destroy is limited by the opportunity presented.”
 
The perpetrators here could not easily reach beyond Srebrenica to reach the entirety of the Bosnian Muslims.
The Tamils of Sri Lanka are spread around the globe – nearly a quarter of the entire population would be outside of the perpetrators’ reach. Because of their location, the Tamils in the Vanni area presented themselves as a group within a confinable area and the state was able to effectively blockade them from the rest of the island.
 
2
Strategic Importance of the area: without Srebrenica, the ethnically Serb state that the Bosnian Serb leadership sought to create would be disconnected.
 
Most of the Muslim inhabitants of the region had sought refuge in Srebrenica, and so elimination of it would lead to ethnic purity in the area.
 
Mullaitivu has always been over 90% Tamil in population, with the district being nearly 100% Tamil for the past ten years.   
The Government of Sri Lanka (GoSL) had dropped pamphlets around the entire surrounding region to encourage civilians in the 100% Tamil area to congregate in 20 mile safe zone in order to be protected from the surrounding war.  Soon after, the GoSL began their aerial attacks on the area. Elimination of the civilians in that zone would have led to ethnic purity in the district.
 
3
International importance of the area: it was important to both Bosnian Muslims and international community because it was the most visible of the safe areas created by the UN Council.
 
It had a guarantee of protection.  “The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces.”
 
The safe zone was purportedly the GoSL’s response to growing concerns from the international community regarding civilian protection.  This final battle was widely publicized because it was the last LTTE stronghold on the island.
 
GoSL knew that the world was watching and wanted to serve a “potent example” to all Tamils of Sri Lanka that the GoSL determines their fate – to impress the Tamils’ vulnerability and defenselessness in the face of the Sri Lankan Army. [I think there was a good quote to show this from around that time – either Fonseka or one of the brothers]
 
The area had strategic significance for the viability of a Tamil nation and state.
 
4
The Bosnian Muslims of Srebrenica were the only part of the Bosnian Muslims under the control of the Bosnian Serb forces.
 
The Mullaithivu area was the only area where a media blackout had been achieved, international observers had been expelled (save for the Red Cross which may not testify in legal tribunals) and an alibi of “a counter-insurgency war” had been established 5
Even though the Serb forces claimed to target an even smaller part of that group, men of a military age, the Court did not find them to be a smaller, separate part of the group. The GoSL claimed to target the LTTE, but the court may see the falsity in that contention given the nature of the attack:
  • Ie destruction of infrastructure and facilities for food and medicine and preventing these from reaching the broad population
  • The indiscriminate weapons deployed
6
Even though the Bosnian Muslims of Srebrenica were not originally from Srebrenica, they still were able to be defined as a group as such. The Tamils in Mullaitivu may have been displaced from other areas, but it will not affect the analysis for determining “a substantial part of a group.” 7
 

Establishing Intent to Destroy

 
The intent of the government of Sri Lanka was to ethnically cleanse the Mullaithivu area and prevent the Tamil community from reconstituting itself there, by means of physical destruction, via death or physical or mental harm of a substantive part of the Tamil nation, because of
  • . the symbolic significance of the Tamil capital, Kilinocchi and its surroundi ng region, Mullaithivu,
  • . the area’s strategic significance to the viability of a Tamil state.
  • .  a desire to punish the Tamil population that has chosen to live outside of government control
The intent to destroy is also evidenced by preparatory measures, for example
  • Damaging and destroying the network of aid organisations that would be available to care for the massive number of displaced that were expected as a consequence of the attacks, creating a climate of fear and insecurity that forced many aid organisations to withdraw. Fo example
    • The killing of 17 staff of Action Contre Le Faim, failure to investigate and the subsequent withdrawal of the organisation
    • The abduction and killing of TRO staff and failure to investigate
    • Failure to investigate or prevent the killing of numerous other workers including those of the ICRC
    • Allowing inflammatory statements, inciting hatred against international humanitarian staff in the national press
    • Forcing the withdrawal of the UN from the conflict zone in September 2008
    • In the late stage of the conflict UN staff were held in detention camps, initially incommunicado
 
  • Achieving a media blackout of the conflict zone and also killings, destruction and intimidation of all Tamil press and to a lesser degree, other ethnic press.
 
The intent to destroy is also evidenced by the actions of the Government of Sri Lanka (GOSL)  to prevent adequate food and medicine reaching the target population
  • GOSL  knowingly substantially published lower figures for the number of civilians in the safe zone – thus leading to far lower food and medical supplies than necessary
  • GOSL chose a ”safe zone” which had no medical infrastructure, inadequate drinking water (being on the sea shore, there was only salt water), it was an exposed open area suitable for shelling and without adequate shelter except open spaces
  • The Sri Lankan military wilfully directed military operations towards the “safe zone “ that GOSL had declated – so in fact GOSL had created not a safe zone but a killing zone towards which militaryoperations were directed We refer to the  diagram of evolution and direction of military operations in the TAG submissions on PTK hospital . We refer to the interview by President Rajapakse to the Hindu (see  below)
 
 Explicit statements of intent
  • We rely on Gothabaya Rajapkses interview to Alex Crawford of Sky News on 2nd February where he confirmed that “Nothing must exist outside the safe zone”, this includes operating hospitals.
  • We rely on TAG satellite images which will show that other hospitals – in fact all hospitals in the area were targeted – consistent with Mr Rajapakses statement
  • Extract of President Rajapakses interview confirming that GOSL intended for the safe zone to be also the final conflict zone, so it was not intended to be safe at all:
  • NR: What do you think was their final strategy? Prabakaran holed out with all the LTTE leaders and their families in that small space, that sliver of coastal land. It shocked the world. But what were they expecting? D.B.S. Jeyaraj, who writes for us, has a theory that they wanted to do a daring counter-attack.
  • President: I think what they wanted was to escape. In the final phase, they were waiting for somebody to come and take them away. Otherwise, they wouldn’t have gone there. Because they had the Sea Tiger base: that was the only place where they could bring a ship very close — even a submarine. They selected the best place for them: on one side the sea, then the lagoon, and there was a small strip. But then it was not they who actually selected the place: they ‘selected’ it but the armed forces made them go there. The No-Fire Zones were all announced by the armed forces. After Kilinochchi, they were saying: “No-Fire Zones, so go there.” So all of them [the LTTE leaders and fighters] went there. These were not areas demarcated by the U.N. or somebody else; they were demarcated by our armed forces. The whole thing was planned by our forces to corner them. The Army was advancing from North to South, South to North, on all sides. So I would say they got cornered by our strategies. “
 
              

Srebrenica

Mullaitivu

 

Physical or biological destruction of the group: killing of “men of military age.” The Serbs claimed that the executions were to remove a threat, but they exterminated men who were too young and too old to be considered military age.
 
The GoSL claimed to remove the LTTE, but they, at best, bombed indiscriminately, and at worst, targeted hospitals and the safe zone.
 
1
Physical or biological destruction of the group: killing of “men of military age. The Serbs claimed that the exterminations were to remove a threat, but they exterminated men without differentiating between military status and civilians. Even though civilians are capable of bearing arms, they do not constitute the same kind of threat as professional soldiers.
 
The GoSL claimed to remove the LTTE. However, in this air raid, there was no attempt to distinguish civilians from rebels in any manner. The mere similarity in appearance between the LTTE and civilians does not allow for indiscriminate attacks. 2
Physical or biological destruction of the group: destruction of men. This led to severe procreative implications for the Srebrenica Muslim community. 
 
The trial chamber found that the Serb forces knew about the implications of these acts on the physical survival of the population – that knowledge is enough to establish intent.
 
Even though men were not targeted separately from women or children in Mullaitivu, the indiscriminate shelling led to severe procreative implications for the Tamil community through deaths, lost relatives and disabilities. 3
Physical or biological destruction of the group: destruction of men. The men killed were largely listed as “missing,” which kept their spouses from being able to remarry and therefore have more children. The forcible transfer, detainment, rapes and improper record-keeping throughout the aftermath of the Mullaitivu massacre have kept families from finding one another and has endangered reproductivity.  4
The decision not to kill all members (i.e., to transfer, rather than kill, the women and children) does not preclude genocidal intent.
The forcible transfer could be to further the complete removal or destruction of Muslims in Srebrenica – “thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself.”
Even though all the Tamils within the safe zone were not killed, that does not preclude genocidal intent. The forcible transfer to the camps bolsters the notion of  furthering genocidal intent since the GoSL’s original plan was to maintain the civilians within the camps for three years, if not  indefinitely – thereby eliminating the possibility that the community in the area could reconstitute itself.
The GOSL has instilled sufficient fear in the minds of the population that many are too traumatised to return, reducing the possibility of the community reconstituting itself.
5
Even though forcible transfer is not genocide in and of itself, it can be relied on to prove intent to destroy. In this struggle, where Tamils are dying to preserve their homeland, giving them the choice to flee or die is the offer of a false choice- either way, the GoSL will destroy the community. 6
Even if the most direct and effective form of genocide is not carried out, genocide may still be found. Even if the GoSL did not eradicate the safe zone entirely, genocidal intent can be found. 7
Even if there are no statements by general staff indicating the motivation of genocidal intent, intent may still be inferred.  The staff’s knowledge of the detrimental effects on the community may be enough. Statements imputing genocidal intent on those actually carrying out the actions are not required to establish intent.  8