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26th September 1999

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We are a long long way from Geneva

By D.B.S.Jeyaraj

The fundamentals of International Hu- manitarian Law governing the protection of innocent civilians during conflict situations were enshrined 50 years ago in Geneva, Switzerland.

Known generally as the Geneva Conventions of 1949, these provide the principles for protection of the Individual. Article 3 expressly forbids governments and armed opposition groups alike to indulge in torture, to deliberately kill civilians taking no part in hostilities, to harm those who are wounded, captured or seeking to surrender, or to take hostages.

When Sri Lanka or Ceylon as it was then known, ratified the Geneva Convention 40 years ago it was considered to be a mere formality. For who would have thought in 1959 that this "pearl of the Indian Ocean" would ever be embroiled in a war external or internal.The ethnic crisis deteriorated to the point of a near civil war in the eighties. After Indian intervention, the chief combatant on the Tamil side wrote to the United Nations and declared that it would abide by the Geneva Conventions and its optional protocols One and Two. This was in February 1988.

Thus both sides in the current fighting, the Sri Lankan State and the Liberation Tigers of Tamil Eelam, have a solemn duty to adhere to the Geneva Conventions in the case of civilian protection.

The tragic events of the previous week however indicate that the lofty principles emanating from Geneva are yet to take root in the killing fields of our Island.On Sep 15 bombers of the Sri Lankan Airforce, presumed to be Israeli Kfirs , engaged in a bombing expedition in the skies over the North Eastern district of Mullaitivu. Many of the bombs fell on the market area of Puthukkudiruppu, a small agricultural township now overflowing with refugees.Fifteen people were killed on the spot. Of the 41 injured and taken to hospital a further seven succumbed to their injuries.Twenry two died and 34 were injured. Some buildings including shops and houses were also damaged. Medical Personnel from Medicin Sans Frontiers and representatives of the International Red Cross visited the area and saw for themselves the actual situation.Subsequently the London based Amnesty International issued a statement condemning the attack on the basis that civilians were killed. All civilians killed were Tamils.

Three days later on Saturday 18 another horrible massacre occurred. This was in the hamlet of Gonagala in the Eastern district of Amparai. Gonagala on the borders of the Batticaloa district was an agricultural settlement (Colony 31) coming under the AGA division of Ugana.In the thick of the night armed members of the LTTE, many of them women, invaded Gonagala and wrought havoc. Unarmed civilians many of them women and children were brutally hacked and chopped to death.

The assailants later killed four others in two adjoining settlements.Although bombastic pronouncements have been made by the powers that be about Homeguards comprising armed civilians protecting the border villages the carnage that occurred was a massacre of innocents. 54 were killed and 16 wounded.The Amnesty International condemned this attack on civilians too. All civilians killed were Sinhala.

The manner in which these incidents were reported in the domestic media as well as the response by official quarters highlighted the deep divide between the Sinhala and Tamil communities. Although there was a common humanitarian bond of civilian suffering on both sides of the ethnic divide attitudes seem to have polarised to the inhuman extent of ignoring a humane issue.If the spirit of the Geneva Convention had been violated in Puthukkudiruppu and Gonagala, the so called national response to both cast doubts about the nature of the on-going conflict itself.

The war described as a "war for peace" is aimed at preserving the unity and territorial integrity of Sri Lanka. Tamil secessionism is being countered on the grounds that the Tamils are an integral component of this country and nation.The ideal that is being projected as opposed to the LTTE demand for an exclusive Tamil state is that this Island, from Point Pedro to Dondra, belongs to all citizens regardless of ethnicity.One Country, One Nation is the official credo.The war in that sense is a war against "one's own people" and not an "alien people". But the aftermath of Puthukkudiruppu and Gonagala has shaken that belief considerably.The Tamil psyche in particular has been deeply affected by this.

One of the disturbing elements in all this is the revenge factor. The popular perception, right or wrong , is that the underlying reasons for the massacre was revenge and that the violence is clearly cyclical. On Sep 12 the armed forces launched Rana Ghosa - Five in the Pallamadhu,Palampitty and Periyamadhu areas of Mannar district. The military thrust was unsuccessful resulting in hundreds of casualties, dead and injured.Therefore the Air Force embarked upon a "revenge" operation and deliberately bombed civilian targets in Puthukkudiruppu merely to teach a lesson to the LTTE and by extension the Tamils. This is the Tamil viewpoint on the bombing.There may be some Sinhala sections also supporting this contention.

Likewise the massacre of innocent civilians in Gonagala is attributed to the "revenge" factor on the LTTE side. There is a widespread belief that this massacre was committed to avenge the killings at Puthukkudiruppu.

Some pro -LTTE journals abroad have even suggested that the "Killings were a warning to the Sinhala government that if Tamil civilians are attacked unnecessarily then Sinhala civilians will have to pay the price". If this indeed was the rationale for the killings, one can only be repelled by this callously inhuman and brutally cruel illogic.

How can the Tamil civilian bombed to pieces in Mullaitivu district be avenged by chopping to death a Sinhala civilian in Amparai district?Also how can the alleged debacle in Mannar be "rectified" by bombing Puthukkudiruppu?

It is saddening to see that despite years of conflict and incessant appeals by organizations like the AI, " sanctity of non- combatants" concept has not yet sunk in. But if the families of the victims of Puthukkudiruppu and Gonagala are allowed to inter - mingle freely then one could safely wager that there would only be mutual empathy and sharing of sorrows instead of the vengeance.

Another reason for the shocking impact of the recent incidents was that such type of killings had not occurred for quite a while. During operations in Jaffna in 1995 the Air Force was guilty of major attacks on civilians as in the cases of the Navaly St. Paul and Peter's Church, Nagarkovil Madhya Maha Vidyaalayam and Ariyalai Manianthottam. But in recent times there had not been any such incident except for isolated instances of one or two civilians getting killed in a bomb attack

Likewise the LTTE too had not indulged in civilian massacres for quite a long time.

The expectations that the Tigers may attack the settlers of Weli Oya after "Jayasikurui" were proved false . LTTE supporters and propagandists had even peddled the line that the LTTE had re- structured itself and that in the "new vision" of the Tigers, such civilian killings were unacceptable.But now the proverb about the leopard not changing its spots has been proved true again.

The official attitude displayed also strengthens the belief that Puthukkudiruppu was quite deliberate. The initial official reaction was that of denial. Then came a bland assertion that only LTTE targets were destroyed. The explanation was that a tiger amphibian base comprising a coconut estate and the "Nandhikkadal" lagoon had been targetted.

The flaw in this assertion is that the place concerned is four and a half kilometres away from the Puthukkudiruppu market. Later Minister Anuruddha Ratwatte was to say that if the incident of civilians being killed was true then an inquiry should be conducted.

There have been also tales of Tigers hiding among the civilians.Thus the official position on Puthukkudiruppu is still vague and leaves much to be desired.

It may very well be that the Air Force had indeed made a mistake. Even the sophisticated aircraft of the NATO allies made many a blunder during the Kosovo war. The Sri Lankan government upon being informed of the bombing, instead of trying to deny it, could very well have admitted openly that an error could have occurred. Mr.Ratwatte could have promised an investigation. More importantly expressions of sympathy over the deaths of the victims should have been forthcoming and Compensation awarded.

These feelings are embittered further by the contrasting behaviour when the Gonagala massacres occurred. Mr.Ratwatte himself led a media team and descended on the scene. The tragedy has received wide coverage nationally and internationally. But the Puthukkudiruppu tragedy did not receive this media treatment.Initially most Sinhala papers ignored it. the English press gave it some limited exposure. Only the Tamil press focussed on it.

Thanks to the ICRC and AI statements it gained enough international coverage. Ironically Puthukkudiruppu got more media "attention" after the Gonagala massacres when the national media began citing the revenge factor as cause for the Amparai carnage.

The mass funeral too was at government expense. None of this was given to the victims at Puthukkudiyiruppu. Furthermore Chandrika Kumaratunga, remained conspicuously silent over Puthukkudiruppu. But she immediately issued a statement over the plight of the Sinhala victims of Amparai.

Even as these developments affect Tamil attitudes, that community cannot ignore the fact, its media and so-called political leaders continue to maintain stoic silence whenever the Tigers unleash horrible massacres of innocent civilians. By this conduct they forfeit the moral right to question and condemn the so-called "Sinhala" government when these incidents occur. Furthermore the government has a basis for arguing that the bombing could have been an accident but the LTTE has no excuse for the deliberate killing of the civilians in Gonagala.

After Puthukkudiruppu and the condemnation of the government by international agencies., there was an upsurge of criticism towards the Colombo government in Human Rights circles. Instead of capitalising on it the tigers blinded by hate and impelled by a lust for revenge went ahead and massacred innocent civilians.

Thanks to the extensive propaganda that "horror" received wide exposure. The Puthukkudiruppu effect subsided. Once again the LTTE and by extension the Tamils were in the dock as far as the court of international opinion was concerned.

The issue again is not one of utilising incidents like this for political propaganda. The issue is that both the government and the LTTE must respect and protect the sanctity of civilian lives. The government has a further responsibility of treating the victims of war equitably, regardless of their ethnicity.

Open letter to D.B.S. Jeyaraj

Have you asked yourself why?

I read your two-part article in The Sunday Times of 12.9.99 and 19.9.99 largely concerning Neelan Tiruchelvam.

What you have sort to do is to take to task the Tamils living all over the world, for not singing hosannas about Tiruchelvam.

Living in Canada, with no friends you are at liberty to sell your wares to whoever is prepared to publish them. But you have no right to abuse the Tamils because they see no merit in Tiruchelvam or refuse to jump on to the international bandwagon to sing hosannas about him.

You may be obliged or grateful to Tiruchelvam for having been sent to the USA, in the first instance, on some scholarship obtained for you by him and you are well within your right to display appreciation for that act by writing good about him. But it must end there.

Just because a certain section of the people have "reacted in horror and disgust" about the Tiruchelvam assassination, that does not make them "civilized". Equally, because some organizations and "some prominent personalities have condemned the killing and paid tribute to Tiruchelvam", it does not mean that "mainstream Tamils", too, must slavishly do the same.

I agree that "what is remarkable about this is that Tiruchelvam was neither a head of state nor even a Government Minister" and that "only personalities of that ilk have been recipients of such accolades in the past". This is what is perplexing to mainstream Tamils and is making them wonder if all this is orchestrated by Sri Lanka's Government to show the world that they have at least one Tamil friend.

As you say, "tributes have been paid by a cross section of the world's eminent states, persons, political leaders, academics, human-rights activists, scholars, jurists and intellectuals illustrating the multi-dimensional attributes" of Tiruchelvam. But there has not been one Tamil amongst this illustrious list. Have you ever stopped to ask yourself why?

As you state, Tiruchelvam's "death has evoked world-wide eulogies steeped in very high "quality". Have you ever stopped to ask yourself why there has been no eulogy from at least one Tamil about your "gentle and noble soul who was goodness personified". You state that "the silent majority among them (the Tamils) remain overtly detached and non-committal". Have you ever stopped to ask yourself why? You write that "as far as the Tamil reading public was concerned, Tiruchelvam's political reputation had been exterminated before" his death. Have you ever stopped to ask yourself why?

You state that "what is repugnantly that the vilification of Tiruchelvam continues among sections of the Tamils even after his death." Have you ever stopped to ask yourself why?

You complain that "acknowledged professionals from the cream of Tamil society" have attacked Tiruchelvam. Have you ever stopped to ask yourself why there is such universal criticism of your "citizen of the world"''?

You say that Sri Lankan Tamil elite, some from Oxford and Cambridge, others from the Inns of Court, doctorates from prestigious universities of the West, have all drawn swords to criticise Tiruchelvam. Have you ever stopped to ask yourself why they are attacking your "inoffensive democrat"?

You say that "retired UN experts to nuclear scientists, from Catholic priests to University lecturers", have all approbated what has been said by the Tamils about Tiruchelvam. Have you ever stopped to ask yourself why there is this universal condemnation on the part of the Tamils about your "intellectual giant whose only crime was to strive for a peaceful settlement"'?

As your friend Nirupama Subramaniam has written in the much quoted "Indian Express" of 3.8.99 "Sri Lanka's Tamil community remains unmoved and unprotesting". Have you ever stopped to ask yourself why?

You charge that the verdict of the Tamils, as heard by Subramaniam at the book launch at Wellawatte, that "Tiruchelvam made no positive contribution to the Tamil cause" is "indeed outrageously wrong and callously insensitive". If this is your conviction why do you not catalogue your case, without more ado?

You have the audacity to say that the Tamil attitude, in not singing the praises of Tiruchelvam, is "symptomatic of a deep-seated malaise that has afflicted the Sri Lankan Tamil community". Why do you not give your reasons, without more ado?

You charge that "a vociferous vituperative minority continues to attack" Tiruchelvam. But they have done so openly identifying themselves. Why do you not name them and meet their arguments? If you cannot, do not complain.

You charge that "whilst he was alive Tiruchelvam was the pet target of direct and indirect Tiger propaganda. Almost every Tiger organ within and outside Sri Lanka dished out venomous and hateful news and comments about him". If this was true, why did you not rise to the defence of Tiruchelvam then without complaining now, more so because you sell your wares to many publications at the same time, not only in one country but also in other countries?

This is not all. You have the audacity and impertinence to refer to the "cacophony of diatribes against the inoffensive democrat during the past four or five years" and go along to say that the "most prominent among them was a distinguished Tamil politician whose life-long ambition of being a Parliamentarian has been consistently rejected by Tamil voters". Why don't you be a man and have the guts to refer by name to those who contributed to the cacophony of diatribes?

In any case did you, D.B.S. Jeyaraj, rise to the defense of Tiruchelvam even during the past four or five years? Did you reply to the cacophony of diatribes? If you had not and you held your peace, you are stopped now from complaining.

I will acknowledge that your reference to "the Tamil politician who has been consistently rejected by Tamil voters" is to me. I have the guts to accept your reference, which guts you sadly lack. And it is this guts that even the person you have sort to champion lacked in not going before his peers - his own people.

You have the temerity to complain that "the Tamils are violating one of their hallowed values in the most disgusting way by vilifying a dead person". When the Tamils kept quiet, you and your ilk questioned about "the dark cloud of silence that has enveloped mainstream Tamils". Having provoked those Tamils, when they come out and give their reasons by analysing Tiruchelvam's role or non-role, you question about "age old customs". "Heads I win, tails you lose", is that what you are saying?

If "the Tamil tabloid in Colombo has been publishing despicable news and views about Tiruchelvam after his death too", be a man and write to that Tamil tabloid immediately. If the Tamil tabloid does not publish what you write, then complain. If you do not do this, your credibility is in question because you are attacking a Tamil tabloid in an English publication and, therefore, behind the back of the Tamil tabloid. It is cowardly to stab a person from behind.

"A dead person cannot defend himself". Very true. But others, like you, can do the job. Have you not, D.B.S. Jeyaraj, denigrated a dead person in your own writings? And have you not been given fitting replies? You know what I am referring to. You are, therefore, the last person who should be talking of "the socio-cultural morass the Tamil community has sunk to" !

If those who are attacking Tiruchelvam are alumni of Royal and St. Thomas' and "had at various times obtained favours from him," be a man and name them so that public opinion could sanction them for being ungrateful. If you cannot do this, don't talk.

You mention about "Tiruchelvam's positive and dedicated role in the sphere of achieving Tamil rights". Instead of lamenting that only some Tamils are aware of this aspect, why don't you catalogue them for the benefit of all Tamils and the world?

If I could accept the merciless and ruthless and repeated rejection of me by the Tamil voters, it is high-time that you, D.B.S. Jeyaraj, and others of your ilk, learn to graciously accept the almost universal opinion of the Tamils about Tiruchelvam. By all means laud Tiruchelvam. That is your prerogative. But to refer to Tiruchelvam as a "distinguished Tamil politician" will not only betray your foolishness, but also create another hornet's nest provoking irate Tamils the world over to respond.

G.G. Ponnambalam
ACTC General Secretary

Guest Column

Executive gobbles up Judiciary

By Victor Ivan

Why did the President, going against all accepted norms of morality, appoint Mr. Sarath N. Silva to the post of Chief Justice which had fallen vacant, at a time when there were very serious allegations made against him and some of them were being inquired into before the Supreme Court? How will this action affect society and politics?

At the time when Mr Silva was appointed to the office of Chief Justice there were two petitions submitted to the Supreme Court requesting that his name be deleted from the list of lawyers and those petitions were being inquired into by the Supreme Court.

One of the petitions had been submitted by me while the other had been submitted by chemical engineer Mr. W.B.A. Jayasekera.

My petition had said that there was a factual basis to the public allegations against magistrate Lenin Ratnayake and the reports of the police inquiries also said that there was a factual basis to those allegations.

The report of the police inquiry was with Mr. Sarath N. Silva. In reply to a query made from him as the Attorney General, by the Minister of Justice, Mr. Silva, due to his relationship to and close friendship with magistrate Lenin Ratnayake, said in a confidential report to the Minister of Justice, that there was no basis whatsoever to the allegations. My petition stated that by this act Mr. Silva had deliberately misled the Minister of Justice, and requested that, in view of the serious nature of the offence, his name be struck off the list of lawyers.

In his petition Mr. Jayasekera said that Sarath N. Silva while being a married person and father of one child, had invaded his family life and disrupted it and that when he had instituted legal action against his wife and Mr. Silva as co-respondent, claiming damages in Rs. 500,000 and the right to divorce his wife for adultery, the alleged influence exerted by Mr. Sarath N. Silva as the head of the Court of Appeal was disastrous to Mr. Jayasekera, and on these grounds he asked that the name of Mr. Silva be struck off the list of lawyers.

In addition Mr. Percy Wickramasekera too had submitted a petition to the Supreme Court requesting that the names of Magistrate Lenin Ratnayake and District Judge Upali Abeyratne be struck off the list of lawyers in view the allegation against them and the conclusions arrived at by two committees appointed by the Judicial Services Commission on those allegations. That petition too was being inquired into.

Due to the serious objections that were arising in society against the activities of these two judges, the Judicial Services Commission had to appoint two committees each composed of three Appeal Court judges to look into the allegations of misconduct levelled against these judges. Both these committees of inquiry found the two judges guilty of all the charges but the judges were not expelled from the judicial services.

Mr. Jayasekera informs the Judicial Services Commission in writing on September 24, 1994, about the prejudice caused to him by District Judge Upali Abeyaratne who had heard the case filed by him against Mr Sarath N. Silva. Hon. G. P.S. de Silva who held the post of Chief Justice did not inquire into Mr Jayasekera's petition because he knew him personally. He referred it to the other two judges, namely Justice Tissa Dias Bandaranayake and Justice Mark Fernando.

Justices Tissa Dias Bandaranayake and Justice Mark Fernando sent a copy of Mr. Jayasekera's petition to Mr. Upali Abeyratne on November 8, 1994 asking for his observations in writing. Mr. Abeyratne sent his written observations to the commission on November 11 and Justices Tissa Dias Bandaranayake and Mark Fernando after considering the observations, summoned Mr. Abeyratne and held a further inquiry. Thereafter the commission framed very serious charges against Mr. Abeyratne.

A copy of the charge sheet was sent to the Attorney General too. On February 12, 1996, the commission sent this charge sheet to Mr. Upali Abeyratne asking him to inform the commission in writing within one month if there are any reasons not to dismiss him or to punish him otherwise, for the instances of misconduct mentioned in the charge sheet.

Subsequently Justice Tissa Dias Bandaranayake is made the chairman of the Lalith Athulathmudali Commission and thereafter sent on a diplomatic appointment to Indonesia. Justice Mark Fernando while remaining in the Supreme Court is dropped from the Judicial Sevices Commission.

Until then the Judicial Services Commission consisted of the Chief Justice and the two other senior most judges of the Supreme Court. But thereafter the Judicial Services Commission came to consist of the Chief Justice and two junior members of the Supreme Court.

The period of one month given to Mr. Upali Abeyratne to submit his explanation on the charge sheet was to expire on March 12, 1996. Mr. Sarath N. Silva is appointed to the post of Attorney General on March 1. Surprisingly the inquiry about Mr. Upali Abeyratne which should have been taken to its logical conclusion was allegedly suppressed.

The inquiries against magistrate Lenin Ratnayake, who is a relation and a friend of Mr. Sarath N. Silva, which were due to be conducted, were also allegedly suppressed in a similar manner.

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