By eelamaran

More lawsuits will be filed against Sri Lankan General Shavendra Silva while further litigation is being drawn up in several countries against other Sri Lankan officials and military, says Sivakumaren Mardemootoo, senior partner and a founding member of SPEAK, a legal advocacy firm headquartered in Mauritius.

SPEAK, in conjunction with the American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic recently filed a civil suit in New York on behalf of two people, including Vathsala Devi. The wife of Thurairajasingham Devi alias “Colonel Ramesh” is seeking monetary compensation for loss of life. She alleges that Ramesh was tortured and killed by troops in Gen. Silva’s command.

Excerpts from the interview follow. The last two questions were answered by Ali Beydoun, the case’s US-based lead counsel and a director at UNROW Clinic.

A delegation of Tamil

• How did your organization get involved in the Sri Lankan case?

A delegation of Tamil National Alliance MPs visited Mauritius a few years ago. They were referred to me by people they had met in London and in Mauritius.

• Did you always follow the Sri Lanka conflict?

I followed the conflict like anybody else and just like I follow what happens in Libya these days; general information.

• So it was the TNA’s intervention that prompted this case?

Yes, that is the source of my involvement.

• Did they approach you before the war ended?

Yes. I think it was right in the middle of the war.

• This case applies to two people who died in the war who might have been alive at the time. So in what context did the TNA seek your involvement?

They wanted to know whether there was any legal process available to them in international law to stop war crimes. I told them that outside the UN Security Council, there was nothing much that could be done, especially given that Sri Lanka is not a signatory of the Rome Statute.

• How did you proceed?

They (TNA) asked whether I could put together a team who could provide legal advice on all their international law issues. I said yes. I then contacted a few friends and we started to look into the issues. Our knowledge on Sri Lanka and on the problems Sri Lanka was facing with the war was limited. So, we had to educate ourselves through books and articles to get the background. The war ended and we were requested to look into proceedings that could be entered on behalf of various victims. There are various “complaints.” Each has its own story and gives rise to its own cause of action under international law. The Silva case is one such complaint and the facts contained in the Silva case obviously relate to Silva. There are many other complaints that have been referred to us from people in France, the United Kingdom, Canada and the United States but whose stories do not fit in the Silva complaint.

• Are you considering litigation on behalf of other Sri Lankan Tamils against Gen. Shavendra Silva?

Yes.

• Will you file cases against other Sri Lankan military leaders or officials?

The allegations are many and can be qualified under various causes of actions under international law. They relate to torture, inhuman and degrading treatment, war crimes, crimes against humanity and genocide. We are looking at cases to be lodged in France, in the United Kingdom, a few more in the United States and may be in Australia.

• Why did choose domestic litigation against Gen. Silva?

The easiest thing would have been to refer all these complaints to one international tribunal which would be neutral and objective and independent. Because remember, these are only allegations and accusations. Yes, there is evidence but until proven in a court of law, they remain allegations and accusations, no matter how serious they are. Unfortunately, Sri Lanka has not signed the Rome Statute, which therefore bars the prosecutor of the ICC to get himself interested. The only serious way out of this, in my opinion, is for the UN Security Council to set up an International Criminal Court for Sri Lanka, just like what was set up for Rwanda and Yugoslavia. This will give all victims of war crimes and terror to find justice. And when I say victims, I certainly do not limit myself to only Tamil victims. Everybody has suffered. The allegations about war crimes and terror that are being raised against the Sri Lankan military can also be raised against the LTTE and the victims are of the Sri Lankan military are as much victims as the victims of the LTTE.

• Why should Gen. Silva answer summons?

I am on the plaintiffs’ legal team and it is normal that I want him to answer the summons, appear in court and rebut the allegations levelled against him. The entire world has heard the most atrocious stories about what happened in Sri Lanka over the war with the allegations of war crimes, torture and genocide campaign. There are reports, backed with evidence, suggesting that the Sri Lankan military had launched a campaign of sterilization of Tamil women, giving thousands of Tamil women Depo-Provera injections to abort their pregnancies if they were pregnant and to sterilize them if they were not. Let the victims come to court and put in the evidence. Then, on the other side, let the Sri Lankan government come and defend itself and prove the allegations false. Having the complaints determined in a court of law is the only way to resolve these past issues and move forward, like things have moved forward in Rwanda and Yugoslavia.

• You have taken a healthy dose of just one side of the story. Are you aware that the LTTE brought great suffering to innocent Tamils?

I have no doubt that there is another side to it, as in any other case. We are well aware of the atrocities suffered in the hands of the LTTE but as you can imagine, none of our clients have been direct victims of the LTTE. I am sure and I know that there are thousands of victims of the LTTE out there and they deserve justice too and I hope they get justice, if they have not already got it. Remember, we are lawyers. People have come to us and they have today become plaintiffs in a case lodged and potential plaintiffs in future cases to be lodged. They will tell us their stories. When we ask for evidence, they will give us their evidence. This is the life of every lawyer and in this case, it is no different.

• When will Gen. Silva have to appear?

Not now. We will need to go through the process of exchange of pleadings first.

• What will the complainants do?

Wait to see how Silva handles this case. So far, we have only read reports and heard rumours about what he will do. The website of the Permanent Mission of Sri Lanka at the UN suggests that Silva will plead that he is immune from legal proceedings and that your president has requested the assistance of the secretary-general in extending to Silva all immunities and privileges of a diplomat. Raising immunity in order not to face this case will only tell the world that Silva and the Sri Lankan government have no answer to the allegations raised against them. I hope they don’t go that route. If they do, we will nevertheless argue that Silva does not enjoy any form of immunity whatsoever for acts that he has done before he was appointed permanent representative of Sri Lanka at the United Nations. Serious international crimes such as torture necessarily limit the immunity of diplomats. This is not about fighting on immunity. This is not about fighting on legal theories and technicalities. This is about reconciliation and moving forward. For people to move forward, the past must be settled. And there is no better settlement than one through a proper accountability process that is fair, impartial and independent.

• If approached, will your organization also represent victims of LTTE violations?

SPEAK is there for every victim of human rights violations. And that includes the victims of LTTE violations. We have clients from Africa, Iraq, USA, Europe and Asia. This case is not about taking sides. It is just that these victims have come to us with their complaints.

• You have completely ignored LTTE transgressions, but for one line in the plaint which says: “The Sri Lankan government and the LTTE committed widespread violations of international law throughout the conflict.” Why?

We are lawyers. We are not activists or politicians. We put the case of our clients. If we were the lawyers of the LTTE victims, we would have probably ignored the transgressions of the military.

• You describe the war as one of Sinhalese against Tamils. Why is LTTE terrorism not acknowledged in this plaint?

We are the lawyers for the plaintiffs. We only include facts which are relevant to the plaintiffs’ case. We have not written a paper or a dissertation for discussion purposes or for consultancy. This is a court proceeding and we can, as lawyers for the plaintiffs, put in facts which are relevant only to the plaintiffs’ case.

• Col. Ramesh, the husband of one of the complainants, was a LTTE fighter. He took up arms against a state and got killed during the war. Is that not part of the package of being a militant?

We are on the side of the law. We believe that the Sri Lankan government, which is a lawfully elected government, has the fundamental right to govern its territory and enforce the rule of law. Its actions, however, must comply with the rule of law. If it did what it is accused of having done, then the Sri Lankan government would have violated its own laws and international law and in that respect, ought to be accountable. Sri Lanka, when and if it tortured and killed prisoners of war as alleged, would have acted unlawfully, in violation of the Geneva Conventions it signed and ratified, and would have itself acted as a terrorist state.

• Why is your plaint so harsh against the Sinhala majority that it borders on racism?

It is legal advocacy and not a racist rant. I fully expect that the defence counsel will write all about the atrocities committed by the LTTE, although neither of my clients are LTTE.

• The plaint says that, “before or during 2008, the Sri Lankan government outlined a strategy for the intentional destruction of non-military objects and persons in Tamil areas to make these areas unlivable and for the intentional targeting of unarmed Tamil civilians.” It does not mention that the immediate trigger for the government’s military offensive was the shutting off of water to a large number of villagers in the east. Were you not aware of this or did you think it fit to ignore that aspect?

I did not ignore this aspect. Again, I am sure that the defence will discuss this aspect, but neither one of my clients was involved in this situation.

(LAKBIMAnEWS

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