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20 Dec 2024 : The Hindu Editorial

Editorial 1: Reality check on Sri Lanka’s Tamil question

Context

The joint statement issued by New Delhi and Colombo during the Sri Lankan President’s India visit reveals the neighbours’ current preoccupations

 

Introduction

Many in Sri Lanka closely tracked their President Anura Kumara Dissanayake’s recent visit to India. The ceremonial red carpet welcome he received from Indian President Droupadi Murmu and Prime Minister Narendra Modi, his various engagements, and, importantly, the joint statement issued by the two governments, drew much notice in the local media.

 

Mr. Dissanayake’s First State Visit

  • It was Mr. Dissanayake’s first state visit abroad, after he won the presidency in September this year.
  • The ruling National People’s Power (NPP) won a spectacular two-thirds majority in the general election in November.
  • India was hosting not just one of Sri Lanka’s most powerful Presidents but also a leftist leader from a party (Janatha Vimukthi Peramuna – JVP or the People’s Liberation Front) that once furiously opposed India and its perceived “interventionist” role in Sri Lanka.

 

What are the changes in India-Sri Lanka relations?

  • Much has changed in India, Sri Lanka, and in India-Sri Lanka relations.
  • The JVP is not the same today, as the story of its rise to state power reveals.
  • Sri Lanka’s political landscape stands radically altered in ways few imagined possible two years ago.
  • Analysts are yet to fully decipher the astounding victory of the JVP-led NPP, especially in the island nation’s north, east, and the hill country, which are home to the country’s Tamil, Muslim, and Malaiyaha Tamil minorities.
  • India’s priorities have seen a marked shift, as New Delhi remains preoccupied with countering Chinese influencein the neighbourhood.

 

Changing Indian interests

  • While everything else changes, Sri Lanka’s long-pending national question remains unresolved, with all past governments in Colombo failing to deliver a definitive political settlement.
  • India’s past involvement as an arbiter of Tamil rights set high expectations for its influence, particularly in the post-war years since 2009.
  • In an interview to this daily in 2022, late Tamil leader R. Sampanthan said, “India has a special duty” in ensuring the implementation of the Indo-Lanka Accord of 1987 and the 13th Amendment to the Sri Lankan Constitution.
  • However, Indian interests today are evidently different.

 

Reality Check from India-Sri Lanka Joint Statement

  • The joint statement issued by New Delhi and Colombo on December 16, 2024, offers a reality check.
    • The 34-point document, titled ‘Fostering partnerships for a shared future’, spans political, economic, and strategic cooperation, but makes no reference to:
      • The pending political solution.
      • Post-war reconciliation.
      • Tamil aspirations.
    • The only power sharing mentioned is a proposal for a high-capacity grid interconnection between Indiaand Sri Lanka.

 

Statements from Mr. Modi and Mr. Dissanayake

  • In his remarks at the joint press conference, Mr. Modi said:
    • “We hope that the Sri Lankan government shall fulfil the aspirations of the Tamil people”.
    • He also expressed hope that Sri Lanka would fulfil its commitment to fully implementing the Sri Lankan Constitution and conducting the Provincial Council Elections but did not reference the 13th Amendment.
  • Mr. Dissanayake framed the issue differently:
    • He said, “People from all the Provinces — North, South, East, and West — representing diverse communities and various walks of life contributed to this mandate.”
    • He emphasized that the essence of democracy lies in the coexistence of diverse political views and groups.

 

NPP’s Stance on Provincial Councils and New Constitution

  • The NPP’s poll manifesto includes an assurance to:
    • Hold elections to the provincial councils, which have been defunct for over five years.
    • Enact a new Constitution based on wide public consultations.
  • President Dissanayake has made the pledge to enact these changes but his government is yet to spell out its own vision for a durable political solution.
  • The NPP has consistently avoided the language of the “13th Amendment”, which carries the baggage of “Indian imposition” for the Sinhala-Buddhist majority in Sri Lanka, and likely triggers discomfort for the JVP party base.
  • Political scientist Jayadeva Uyangoda observed that the NPP shuns both:
    • The “devolution discourse” introduced by India.
    • The “liberal peace discourse” of conflict resolution, reconciliation, and peacebuilding promoted by UN agencies and global rights groups.
    • Uyangoda wrote, “The NPP does not seem to want its agenda for inter-ethnic peace and reconciliation in Sri Lanka to be seen as a continuation of what it sees as ‘failed’ past attempts.”

 

Contentious amendment

  • The 13th Amendment continues to evoke mixed and often strong reactions among Sri Lankans.
  • Even the Tamils are divided over whether it is a necessary but insufficient measure of power devolution, or a problematic legislation that tamed historic demands for federalism.
  • The last time the 13th Amendment went out of focus was when the Maithripala Sirisena-Ranil Wickremesinghe administration (2015-19) attempted drafting a new constitution, but the effort failed.
  • Mr. Dissanayake has said his government would build on the draft.

 

Past Formulations and Tamil Aspirations

  • It is true that two main formulations of the past have not proved successful for the Tamil people.
  • It is also not hard to see why the JVP may be wary of using either discourse.
  • However, the Tamils who contributed significantly to the NPP’s big win are justified in seeking greater clarity on what the government has in mind for them.

 

Ongoing Struggles of the Tamil People

  • Fifteen years after the end of the civil war, the Tamil people are still:
    • Chasing the truth about their forcibly disappeared loved ones.
    • Fighting to reclaim their land held by the military.
    • Struggling to rebuild their livelihoods shattered during those years of bloodshed and mass destruction.
    • Lacking a say in how their provinces, setback by a devastating war, should be reconstructed.
  • The government’s promise of national integration or a unified “Sri Lankan identity” can be evaluated only based on its specific policies to address:
    • War-time accountability.
    • Political agency.
    • Meaningful development in the north and east.

 

Opportunity for the New Government

  • A new political order may now be at the country’s helm, but old questions will not go away.
  • The recent elections have given Mr. Dissanayake and the NPP rare national momentum and unprecedented legislative influence.
  • The government now has a real chance to reimagine the political solution through people’s post-war realities.

 

State of the Tamil polity

  • Sri Lanka’s Tamil polity faces a significant challenge following the recent elections.
  • The electorate delivered a clear message to the regional Tamil parties, as the NPP beat them in all but one district in the north and east.
  • As a result, the Tamil polity is struggling to regain its voice.
  • After habitually looking to the international community to push for Tamil rights, the Tamil political leadership is now forced to confront its own failure.
  • Those counting on India should understand that the Tamil question is no longer an issue that serves a domestic political compulsion or provides diplomatic leverage to New Delhi.
  • It is time the Tamil political leadership recognises India’s waning interest and influence on the Tamil question.
  • Questions on India’s role: The Tamil leadership must also ask if India has any moral standing to ask another country to treat minorities better.

 

Conclusion

The Tamil polity’s core strategy of engaging western powers dominating UN bodies, India, and the Tamil diaspora has clearly not yielded substantive progress on the ground. To remain relevant and rebuild credibility, the Tamil polity appears to have little choice but to reorient itself to the people it seeks to represent. The Tamil people in Sri Lanka have reminded their leaders, who were busy talking to actors elsewhere for years, to listen to them now.

Editorial 2: Crimes against humanity and an obtuse Indian stance

Context

India’s response to a ‘crimes against humanity’ treaty aligns with its aversion to the Rome Statute and the International Criminal Court.

Introduction

On December 4, 2024, the UN General Assembly (UNGA) adopted a resolution approving the text of a proposed treaty governing the prevention and punishment of crimes against humanity (CAH treaty). This marks the beginning of the negotiation process among states for the conclusion of a CAH treaty. This resolution comes five years after the International Law Commission submitted the draft text of the CAH treaty to the Sixth Committee — the primary forum for considering legal questions in the UNGA. This development is a landmark in the international community’s quest to combat impunity for CAH.

 

There is a gap in accountability

  • Crimes under ICC ujrisdiction: Alongside genocide and war crimes, CAH are among the grave international crimes which the International Criminal Court (ICC), established under the Rome Statute, seeks to punish.
  • Dedicated treaties for Genocide and War Crimes: Genocide and war crimes are governed by dedicated treaties: the Genocide Convention of 1948 and the Geneva Conventions of 1949, respectively.
  • Rome Statute for CAH: CAH are governed solely under the Rome Statute, which includes specific criminal acts such as:
      • Murder
      • Extermination
      • Enslavement
      • Deportation
      • Torture
      • Imprisonment
      • Rape
        • These acts are committed as part of a ‘widespread or systematic attack directed against any civilian population, with knowledge of the attack’.

 

Historical Context

  • Codification in 1945 London Charter: CAH were first codified in the 1945 London Charter establishing the Nuremberg Tribunal to investigate and prosecute crimes related to the Second World War.
  • Further Codification in International Tribunals: Later, CAH were codified in the statutes of the International Criminal Tribunals for Yugoslavia and Rwanda.
  • Absence of a dedicated CAH Treaty: There is currently no dedicated treaty for CAH, creating a gap in accountability in the international criminal justice system.

 

Need for a Dedicated CAH Treaty

  • Limited jurisdiction of the ICC: The ICC’s jurisdiction covers a limited number of states, making it challenging to punish perpetrators of CAH in non-member states.
  • Individual criminal responsibility vs state accountability: The Rome Statute and ICC only address individual criminal responsibility.
    • A dedicated CAH treaty would allow for holding states accountable under international law for their failure to prevent CAH, similar to the Genocide Convention of 1948.
    • Example: In 2019, The Gambia filed a case before the International Court of Justice (ICJ) against Myanmar for alleged violations of the Genocide Convention against the Rohingya population.
    • A CAH treaty would create an obligation for state parties to adopt administrative, legislative, or judicial measures to prevent the commission of CAH.
    • Failure to meet this obligation could form the basis for ICJ jurisdiction, should the CAH treaty allow.
  • Expansion of CAH Scope:
    • A CAH treaty would present an opportunity to enlarge the scope of CAH to include:
      • Starvation of civilian populations
      • Gender apartheid
      • Forced pregnancy
      • The use of nuclear weapons
      • Terrorism
      • Exploitation of natural resources
      • Crimes against indigenous populations

India’s stand

  • Non-Party to the Rome Statute: India is not a party to the Rome Statute and has consistently objected to the ICC’s jurisdiction over issues such as the powers of the ICC prosecutor, the role of the UN Security Council under the Rome Statute, and the non-inclusion of ‘use of nuclear weapons and other weapons of mass destruction’ as a war crime.
  • Crimes during armed conflicts: India has argued that crimes committed only during armed conflicts — and not those committed during peacetime — should be considered CAH.
  • Exclusion of enforced disappearance: Moreover, India does not favour the inclusion of ‘enforced disappearance’ as an act that can constitute CAH.
  • Advocacy for Terrorism inclusion: Instead, India advocates for the inclusion of ‘terrorism’ as an act amounting to CAH.

 

India's Response to a CAH Treaty

  • Skepticism toward CAH Treaty: India’s response to a CAH treaty aligns with its aversion to the Rome Statute and the ICC.
    • For the last five years, since 2019, India has consistently argued for an ‘in-depth study’ and thorough discussion on the need for a dedicated treaty.
  • Concerns about Duplication of the Rome Statute: India’s stance at the UNGA reflects its scepticism that a CAH treaty might duplicate the already existing regime under the Rome Statute.
  • Disagreement with Exclusion of Terrorism and Nuclear Weapons: Further, India takes issue with the exclusion of ‘terror-related acts’ and the ‘use of nuclear weapons’ from the definition of CAH in the proposed treaty.
  • National Jurisdictions over international courts: Most importantly, reiterating that it is not a party to the Rome Statute, India has stressed at the UNGA that national legislations and the jurisdiction of national courts are more appropriate fora for dealing with CAHand other international crimes.

 

Conclusion: Lead the way

Currently, India does not have domestic legislation prohibiting international crimes. In 2018, Justice S. Muralidhar of the Delhi High Court in State vs Sajjan Kumar observed that ‘neither crimes against humanity nor genocide have been made part of India’s criminal law, a lacuna that needs to be addressed urgently’. Nonetheless, there is little or no debate on the need for such laws in the domestic legal and policy spaces. The recent amendments to the criminal law were a missed opportunity to include these crimes in the penal law. This is inconsistent with India’s own insistence on the primacy of national and territorial jurisdiction for dealing with CAH. India should incorporate CAH and other international crimes into its domestic law, even if it is not a party to the Rome Statute, and lead the way in ending impunity for grave human rights violations — a role that befits a true Vishwaguru.