Feature Article

Tamils learning lessons from ICJ-case against Myanmar, ICC-investigation on Israel

[TamilNet, Monday, 23 December 2019, 22:29 GMT]
The Tamil diaspora organisations should seriously evaluate their post-2009 international legal activism, comparing the ICC-based war-crimes move of the Palestinians and the ICJ-based genocide case against the state of Myanmar, both of which have gained milestone achievements in December 2019. The Tamil organisations should be asking a pertinent question as to why did they fail to pursue the International Court of Justice (ICJ)-oriented discourse despite repeated reminders coming from international legal experts such as US-based Professor Francis Boyle. The ICJ is the only place where state responsibility for genocide could be addressed. Unlike some Tamils and their academics believe, no organisation has so-far focused on establishing the basis for presenting a ‘prima facie’ case with the particular focus on proving the intent of genocide and a process towards filing a lawsuit at the ICJ.

The International Commission of Jurists, a non-governmental advocacy group, issued a legal briefing note setting out what is required to prove genocide and, in particular, the element of “genocidal intent” in August 2018.

“Genocide is a complex crime that in many instances may be difficult to establish beyond reasonable doubt in a trial setting,” the group said presenting its findings last year.

The group produced the Q&A document on genocide investigation as the genocide against Rohingya people in Myanmar gained international focus.

One area that has proved particularly challenging is the requirement to prove “special intent” or “genocidal intent” which is a critical constitutive and distinctive element of the crime of genocide.

Genocide primarily distinguishes itself from other international crimes such as war crimes and crimes against humanity, except the crime against humanity of persecution, because it requires special intent (dolus specialis), the legal briefing prepared by the International Commission of Jurists notes.

Now, the case is taken up by the International Court of Justice in The Hague.

The Q&A document prepared by the group also serves as a useful document for Tamil diaspora organisations that have remained deaf so far to start at least now to focus on how to work for genocide justice.

On 10 December 2019, the ICJ commenced a two-day initial hearings in the case against Myanmar.

The Gambia, which is a small West African country, had filed a case against Myanmar for violating provisions of the Convention on the Prevention and Punishment of the Crime of Genocide at the ICJ in November 2019. The move was backed by 57 member states of the Organisation for Islamic Cooperation (OIC).

For Eezham Tamils, the path to International Criminal Court (ICC) -based justice remains a far cry when compared with the process as witnessed in the case of the Palestinians.

On the contrary, the International Court of Justice (ICJ) option remains relatively feasible.

* * *

Israel, like ‘Sri Lanka’, is not a signatory to the ICC Rome statute.

The state-like body known as the Palestinian Authority (PA), joined the ICC in 2015, especially after its renewed 2011 move for becoming a full-fledged member-state status didn’t materialise.

The proclaimed state of Palestine still has no formal status within the UN system.

In October 1974, the Palestine Liberation Organization (PLO) was invited to participate in the deliberations of the UN General Assembly as the sole representative of the Palestinian people. It was granted observer status as an entity.

Yasir Arafat, the chairman of the PLO, declared the establishment of an independent Palestinian state on 15 November 1988.

On 15 December 1988, the UN General Assembly decided that the designation “Palestine” should be used in place of the name “Palestine Liberation Organization” in the UN system recognising the proclamation of the state of Palestine.

Mahmoud Abbas, the president of the PA and chairman of the PLO, applied for full member-state status in 2011. The application was building upon the UN General Assembly Resolution 194 from 1948.

Despite having the support from the needed number of member-states in the General Assembly, the move didn’t secure the required majority for voting in the UN Security Council as only eight of the fifteen members backed the move, and one of the five permanent members, the USA, signalled veto if the move came for voting.

In November 2012, the General Assembly status of Palestine was upgraded from “permanent observer” status to “non-member observer state” status.

The UNESCO, which is an agency of the UN, also admitted Palestine as a member state on 31 October 2011.

From 2011, the Obama Administration of the USA and Israel chose to cut their funding to the UNESCO opposing its move of admitting Palestine as a full-fledged member of the UN agency.

Later, in October 2017, the Trump Administration withdrew US membership altogether from the UNESCO. Israel followed suit.

In June 2018, the USA also withdrew from the UN Human Rights Council.

In the meantime, Geneva-based United Nations Committee on the Elimination of Racial Discrimination (CERD) has decided to investigate Palestinian complaint filed last year that Israel was promoting apartheid policies in the West Bank. The decision by the CERD has come ten days before the ICC decision.

The latest decision by the ICC to proceed with war-crimes investigations of Israel and the move to secure legal jurisdiction, which is to be determined, probably based on PA membership in the ICC and the improved ‘non-member observer state’ status are to be seen as significant lessons on the longterm legitimate pursuit of collective rights of the stateless nations.

A notable aspect of the ICC case is the increasingly accepted perception of Israeli settlements in the Occupied Palestinian Territory as war-crimes.

However, as far as the Eezham Tamils are concerned, the ICJ-oriented process needs serious perusal. It has not gained the needed focus as the global establishments at war with the Tamil diaspora have sabotaged the projects and organisations that could have accomplished the task. There are many state-actors complicit in the Tamil genocide.

New initiatives are needed with particular focus to launch investigations on the state-responsibility of Tamil genocide.

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