Friday February 21, 2020
Mar-12-2014 21:47TweetFollow @OregonNews
Sri Lanka. Rape of Tamil Women, Men and Children by the Sri Lankan Armed ForcesDr. Brian Senewiratne for Salem-News.com
This is a 7 page synopsis of a 73 page article published by me on International Women’s Day – 8 March 2014.
(BRISBANE) - Rape is defined in the Rome Statute of the International Criminal Court (ICC):
“Rape is a form of sexual violence during which the body of a person is invaded, resulting in penetration, however slight, of any part of the body of the victim, with a sexual organ, or of the anal or genital opening of the victim with any object or other part of the body”.
As for coercion, consent and resistance of the victim, the ‘standard’ view is that:
“the invasion was committed by force, or threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”.
This legal definition of Rape has evolved over time. While the early jurisprudence focused on coercion or force or threat of force, in the case of Junarac and others, the Trial Chamber concluded that in rape it:
“understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.
The Appeals Chamber recognised that force, or the threat of force, provides clear evidence of non-consent in rape. Thus there is no requirement of resistance on the part of the victim. Moreover, most cases of rape as a war crime or a crime against humanity are committed in coercive circumstances where genuine consent is not possible.
Sexual violence. No physical contact necessary
Sexual violence consists of actions of a sexual nature committed with a person without his/her consent, which besides including the physical invasion of the human body, may include acts that do not imply penetration or even any physical contact. Examples of sexual violence include forced nudity or virginity tests.
Broader than rape, any form of sexual violence is prohibited under both customary International Humanitarian Law and Common Article 3 of the Geneva Conventions. International human rights law prohibits sexual violence mainly through the prohibition of torture and cruel, inhuman or degrading treatment or punishment.
The UN Special Rapporteur on systematic rape, sexual slavery, and slavery-like practices in armed conflict characterised sexual violence as encompassing ‘any violence, physical or psychological, carried out throughout sexual means or by targeting sexuality’ and includes situations where one person is forced to perform sexual acts or harm another person in a sexual manner.
All of these (and more) have been done by the Sri Lankan Armed Forces, the Police and others working with them or known to them.
Acts of sexual violence constitute war crimes or crimes against humanity. Sexual violence as such was not included in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) Statutes. Nonetheless, both tribunals confirmed in their case law that sexual violence can constitute a crime against humanity, and the war crime of violations of Common Article 3 prohibitions of ‘outrages upon personal dignity’ and ‘cruel treatment’.
Covering a broad range of gender-based offences such as rape, sexual slavery, molestation, sexual mutilation, forced marriage, forced abortion, enforced prostitution, forced pregnancy and enforced sterilisation, sexual violence was defined as any act of a sexual nature that is committed on a person under circumstances that are coercive. Moreover, sexual violence can cover conduct that does not involve physical conduct, such as forced nudity in public. The ICC Statute explicitly included sexual violence as both a crime against humanity, and a war crime.
The ICEP Report has this to say:
11.34 A local employee of an international agency identified the mortuary at a Government Hospital as the holding place of large numbers of bodies of deceased and mutilated Tamil women in February and March 2009. He observed at least 200 bodies, of mainly Tamil women and young girls……. He said that many of the bodies of the women were naked and bore physical evidence of rape and sexual mutilation, with knife wounds in the nature of long slashes, bite marks or deep scratches on the breasts, and vaginal mutilation by knives, bottles and sticks. The bodies also typically bore signs of gunshot wounds to the forehead, which appeared to have been inflicted at close range due to the lack of peripheral damage”.
Rape and sexual violence are prohibited under International Humanitarian Law (IHL), International Human Rights Law, and International Criminal Law, predominantly through the prohibition of torture and cruel, inhuman and degrading treatment.
Recent International Reports on Rape in Sri Lanka
(1) International Crisis Group (ICG) “Sri Lanka: Women’s Insecurity in the North and East”, Asia Report No 217 (20 December 2011).
(2) Human Rights Watch (HRW) Report “We will teach you a lesson” Sexual Violence against Tamils by Sri Lankan Security Forces”. (February 26, 2013). This is a major publication. The Appendix in this Report gives details of torture and rape of 75 people. It is the most important report of rape and torture in Sri Lanka ever published.
(3) “Wiki leaks” which has detailed accounts of rape sent by the US Ambassador in Sri Lanka to the USA. This deals with Douglas Devanada and ‘Karuna’, two Tamil Ministers in Rajapaksa’s government. The longer version of this paper has the details.
(4) Minority Rights Group (MRG) International. This is the leading international human rights organisation to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples. It has more than 150 partners in over 50 countries. The 16 October 2013 report is on the Tamil areas of Sri Lanka: “Living with Insecurity: Marginalisation and sexual violence in north and east Sri Lanka”.
(5) Human Rights Watch World Report 2014
Serious concern is expressed on sexual violence in Sri Lanka and the involvement of the Armed Forces. (6) UN Secretary General’s Expert Panel Report - Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (“UN Expert Panel”) This is a massive 196-page Report by three international legal experts appointed by the UN Secretary General Ban ki-Moon, in June 2010. They submitted the Report on 31 March 2011. He has done nothing.
(7) Public Interest Advocacy Centre (PIAC) – International Crimes Evidence Project (ICEP)
PIAC is an independent non-profit Law and Policy organisation based in Sydney, Australia. PIAC’s “International Crimes Evidence Project” (ICEP) has just published a major 235-page Report (6 February 2014) – “Sri Lanka: “Island of Impunity? Investigation into international crimes in (Sri Lanka)”.
Rape by whom and how many?
The rape of Tamil civilians (women, girls and even men) in the Sri Lankan North and East by the Sri Lankan (Sinhalese) Armed Forces (at all levels), Police, specialised Police units such as the Criminal Investigation Department (CID), the Terrorism Investigation Department (TID), the Colombo Crime Division (CCD), National Intelligence Bureau (NIB), and the Sri Lankan Intelligence Service (SIS), pro-government Tamil paramilitary groups, and even Sinhalese workers relocated or sent to the Tamil areas to work on several projects, has now become a major problem.
With the brutal (Sinhalese) military and police running the North and East, treating the Tamil civilians as the ‘spoils of war’, and the area as ‘conquered territory’, backed by the Government of President Mahinda Rajapaksa that does what it likes to whoever it likes with no accountability, international intervention is mandatory and urgent.
The exact numbers are unknown since international human rights organisations are banned from the area. All that can be said is that it is very common. Women for Rights, a leading organisation on 14 July 2013, said that a woman was raped every 90 minutes. With well documented underreporting for fear or shame, the actual number and frequency are much higher.
Rape of whom and where?
Rape and sexual violence have occurred, and continues to occur, in several places, mainly in the Tamil North and East.
In the large number of Sri Lankan Army and Navy camps that have opened all over the North and East In Police stations
In camps for Internally-displaced persons (IDP) – there are still such camps whatever the denials of the GoSL
In interrogation centres – they too are still there
In Government Hospitals eg the Kilinochchi hospital
In the homes people in the North and East especially where there are no males
In the community at large in the North and East
There does not seem to be any area in the Tamil North and East where Tamil women and girls (and even men) are safe from being raped or from suffering sexual violence.
Rape a war crime
Rape and sexual violence in the setting or aftermath of an armed conflict are war crimes. In sentencing a civilian head of the police and armed forces to life imprisonment in the International Criminal Tribunal for Rwanda, the Presiding Judge, none other than Navanethem Pillay (the current High Commissioner for Human Rights) said:
“From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send a strong message that rape is no longer a trophy of war”.
Brutality - sadism
The sheer brutality of the Sri Lankan Armed Forces is described in one of the cases reported by HRW “We will teach you a lesson” Sexual Violence against Tamils by Sri Lankan Security Forces”:
“Two officials held my arms back [while] a third official held my penis and inserted a metal rod inside. They inserted small metal balls inside my penis. These had to be surgically removed after I escaped from the country.
The ICEP Report “Island of Impunity?” describes another:
“One witness, whose statement was taken by ICEP, was told directly by a senior SFs (Security Forces) officer that he had personally participated with his officers in the gang rape of female LTTE who had surrendered. The SFs officer also described to the witness that after they raped each woman, they killed them by tying one of their legs to a tree and the other to a tractor which was driven away from the tree, causing the woman’s body to be torn apart.”
A Tamil man seen by me in my medical practice in Australia was an asylum seeker who had been anally raped a large times in Mannar, Sri Lanka, by the Navy. His anus was literally ripped by the multiple rapes, and needed a dozen sanitary pads a day to control the bleeding. When it became know that he was about to escape, he was taken to the Navy camp in Mannar, and told, “You want to go, this is what you deserve”. A plastic pipe was inserted into his anus and a barbed wire put down the pipe. The pipe was then withdrawn leaving the barbed-wire inside. This was then repeatedly pulled and pushed. When I saw him in Australia, I saw the multiple perforations of his rectum.
In addition to direct criminal responsibility for crimes committed on the ground, commanders or other superiors (military or civil) may be guilty for failing to prevent or punish crimes by their subordinates (command responsibility).
The extensive Human Rights Watch report cited above, says:
“The Sri Lankan government has an obligation not only to prevent such violations, but also to investigate credible allegations of abuse and prosecute those responsible. Officials who knew or should have known of such abuses and failed to take action, are criminally liable as a matter of command responsibility.”
‘Command responsibility’ makes the Sri Lankan Armed Forces Commander, former General Sarath Fonseka, his many Armed Force Commanders (many of them now Sri Lankan ‘diplomats’ in some countries and even in the UN), his non-military bosses, including Gotabaya Rajapaksa, Defence Secretary, President Mahinda Rajapaksa, Commander-in-Chief of the Armed Forces, and the LTTE leaders (now in Rajapaksa’s government), are criminally liable. They can, and should, be prosecuted.
The current problem
The entire problem is due to five factors:-
The GoSL and its Armed Forces (95% Sinhalese), believing that the Tamil people are the ‘victims of war’, to be used or abused.
The Sri Lankan Armed Forces running the Tamil areas – behaving like an Army of Occupation with no accountability.
The collapse of Law and Order, and even the judicial system. Hoodlums and thugs do as they please, with no questions asked and with even less action by the Government to control them.
The exclusion of internationally credible human rights groups, independent observers and the media from the area by the GoSL.
The absolute power of President Rajapaksa’s regime.
The immediate admission of Amnesty International, Human Rights Watch and International Crisis Group into the North and East.
If this is blocked by the Sri Lankan Government (which it will be), then it will have to be done by force – by the UN or a foreign country – the most obvious being India.
The UN will have to apply the R2P. There is provision in R2P (Responsibility to Protect) for the application of force ‘as a last resort’.
There is a case for a UN ‘rescue operation’ and the taking over of the Sri Lankan North and East as a UN administered ‘protectorate’ at least for the moment. As the UN Forces move in, the Sri Lankan military will have to move out.
India – the major regional power – will have to be co-opted by the UN to do some of this under the UN flag.
An immediate international investigation will have to be launched to look at not only what has happened but what is happening right now. To state that this is an ‘internal problem’ that Sri Lanka will have to address, is absolute nonsense.
An international criminal investigation has to be launched to charge those responsible for criminal activity, past or present, irrespective of their ethnicity, status or position. Rape and sexual violence in the setting of an armed conflict is a war crime, a criminal act. As such criminal prosecution is mandatory. It has to be done in an international Court.
A boycott of goods and services in and out of Sri Lanka – as was done against Apartheid South Africa – will have be done at once, and maintained until the serious abuse of human rights ceases and international human rights groups admitted to the country in general, the Tamil areas in particular.
People outside Sri Lanka will have to be apprised of what is going on behind the closed and censored doors of Sri Lanka. The Sri Lankan government has mounted a massive disinformation campaign, hiring some of the most expensive firms in the world. To a large extent this disinformation campaign has been ‘successful’ in that the vast majority of people outside Sri Lanka believe the downright lies by the Government and the heavily censored media.
It must be stressed that if, as the Sri Lankan government claims, ‘Tamil terrorism’ has been crushed, and ‘all is well in the Tamil areas’, it is impossible to justify the continuing exclusion of internationally recognised human rights organisations from the area.
All foreign aid to Sri Lanka must be put on hold until the human rights abuses cease – something that must be confirmed by AI and HRW.
Legal action must be launched immediately. This is imperative and urgent.
Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala,May 31-June 11 2010; International Criminal Court, “Elements of Crime,” ICC-PIDS-LET-03-002/11_Eng, 2011, http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf
Prosecutor v Kunarac (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No ICTY-96-23-T, 22 February 2001). crisisgroup.org/en/regions/asia/south-asia/sri-lanka/217-sri-lanka-womens-insecurity-in-the-north-and-east.aspx
Marzurki Darusman – (Indonesia) –Chair, Steven Ratner (USA), Yasmin Sooka (South Africa)
International Crimes Evidence Project (ICEP) “Island of Impunity? Investigation into International Crimes in (Sri Lanka). 6 June 2014, para 1.34 p 11
International Crimes Evidence Project (ICEP) “Island of Impunity? Investigation into International Crimes in (Sri Lanka). 6 June 2014, section 11.30, page 175 HYPERLINK colombotelegraph.com/wp-content/uploads/2014/02/here.pdf
MA(Cantab), MBBChir(Cantab), MBBS (Hons) (Lond), MD (Lond), FRCP(Lond), FRACP
Brian Senewiratne (80) is a Sinhalese from Sri Lanka’s majority community. He is one of the very few Sinhalese to campaign for the right of the Tamil people to live without their basic human rights being violated.
He is a doctor of Medicine, trained in Cambridge and London, who voluntarily returned to Sri Lanka as a don in the University in Kandy in 1968. When he was told that the country did not need a ‘troublemaker’, he left to take up a position in Brisbane, Australia, as Associate Professor of Medicine, University of Queensland, and a Senior Specialist Physician in Princess Alexandra Hospital, Brisbane.
His work in human rights goes back to 1948 (age 16), when he organised a protest in a Christian mission school in Colombo where he was a student. That was when a million Plantation Tamils of Indian origin, brought by the British in the mid 1850s to work on the tea plantations, were disenfranchised and decitizenised by the newly independent Ceylon (as it then was). A week later, he addressed a public meeting of some 2,000 people in a suburb of Colombo, to protest at this outrageous act.
Since 1956, when the ethnic Sri Lankan Tamils were discriminated against by the Sinhalese-dominated Sri Lankan, government, he took up the cause of this ethnic group to live with equality, dignity and without discrimination.
Over the past six decades, he has been highly critical of a succession of Sri Lankan governments irrespective of their political ideology. His criticism of the previous President, Chandrika Bandaranaike Kumaratunga, his cousin, has been severe, and of her successor, President Mahinda Rajapaksa, even more severe.<
After arrival in Australia (1976) he has continued with dogged determination and resolve, to address the escalating violation of human rights in Sri Lanka.
He is a Christian whose mother was a devout Buddhist. He has vehemently criticised the politically active Buddhist monks, who see Sri Lanka as a Sinhalese-Buddhist country.
He has addressed scores of meetings across the world on the plight of the Tamils. He has met with Archbishop Desmond Tutu, and has addressed meetings in the British House of Commons, the European Parliament, Canadian Parliament and the Indian Parliamentary complex.
In addition to writing scores of articles, he has made a unique contribution by recording nearly a dozen dvds on the violation of human rights in Sri Lanka and the plight of the Tamil people. His last dvd, Sri Lanka: Genocide, Crimes against Humanity, Violation of International Law, has been circulated across the world. To obtain a copy of these (10 in total), send your postal address to him by email email@example.com or letter, PO Box 5006, Mt Gravatt East, Australia 4122. There will be no charge. Since he works without secretarial help, there may be a slight delay in getting them.
He was the winner of the 2008 award by Canadians for Genocide Education “In recognition of his dedication to inclusivity and equity in genocide education.” “Peace with Justice in Sri Lanka. Genocide of Sri Lankan Tamils, its Causes and Solution”.
Articles for March 11, 2014 | Articles for March 12, 2014 | Articles for March 13, 2014