The aim of this Communication is to refer atrocity crimes committed against Eelam Tamils to the International Criminal Court (ICC) and request its Chief Prosecutor to initiate an investigation proprio motu into crimes against humanity perpetrated by Sri Lankan officials. The goal is to make the perpetrators of such egregious crimes accountable for their actions and be brought to justice to end the impunity prevalent in Sri Lanka. We are hoping that the pertinent facts and arguments presented in the Communication will persuade the Chief Prosecutor to open a preliminary examination that will ultimately lead to the identification and prosecution of the perpetrators to ensure that such unimaginable atrocities that deeply shock the conscience of humanity will not go unpunished as affirmed under the statutory framework for the ICC.

In this communication, we: summarize the pertinent facts related to the crimes committed against Eelam Tamils; clarify on what legal basis the Court may have jurisdiction (temporal, subject-matter and territorial) on a reasonable basis pursuant to the Rome Statute to commence an investigation and also present the information required to address the admissibility requirements of complementarity and gravity , all of which are essential for filing a successful Communication to the ICC.

In terms of establishing the jurisdiction on a reasonable basis: temporal jurisdiction is satisfied by the crimes being committed after the entry into force of the Rome Statute in July 2002; subject-matter jurisdiction is satisfied by evidence that Sri Lankan officials committed Crimes Against Humanity; and territorial jurisdiction is satisfied specifically in the cases of the Crimes Against Humanity of Deportation and Persecution, because these are crimes that occurred on the territories of states parties to the Rome Statute.

The Communication also shows that the admissibility requirements are satisfied: complementarity is satisfied by the fact that Sri Lanka has not itself taken any meaningful action to investigate the crimes; gravity is satisfied by the vast scale, the horrific nature and the systematic manner in which the crimes were committed against the Eelam Tamil population.

Tamil Rights Group (TRG) is an international not-for-profit organisation, established in 2021 and headquartered in Markham, Canada. TRG seeks to strengthen advocacy efforts for transitional justice and universal jurisdiction for Eelam Tamils through leveraging international law, expanding global diplomacy, and defending their civil liberties within Sri Lanka. TRG brings together a multigenerational team, deep networks within civil society in the traditional homelands and across the diaspora, and activists directly connected to the struggle for Eelam Tamil rights since the early 1970s. TRG is firmly committed towards the relentless pursuit of justice and accountability for the Eelam Tamils using all avenues available under international law and human rights principles.

International Tamil Refugee Assistance Network (I-TRAN) is an international non-governmental organisation that is actively involved in helping refugees who have been displaced by violence, conflict, and persecution to survive, recover and rebuild their lives. I-TRAN works to address the global Tamil refugee crisis, by protecting Tamil refugees and displaced persons around the world and promoting durable solutions. I-TRAN sees the large impact that the deportations and persecutions have had on the Tamil refugee and displaced persons populations, and I-TRAN believes that ending impunity for these crimes, including through the ICC, is important for promoting durable solutions.

The International Criminal Court sits in The Hague, Netherlands and operates under the legal framework established by the Rome Statute, an agreement which was signed in 1998 after lengthy negotiations between UN member states to establish the ICC. The ICC then came into force in July 2002.

The ICC prosecutes only the most serious crimes, namely Genocide, Crimes Against Humanity, War Crimes, and in some cases, the Crime of Aggression. The ICC generally only prosecutes these crimes when committed on the territory of a state party to the Rome Statute, or when committed by state party nationals (unless a situation is referred to the court by the UN Security Council, as described below). It also only prosecutes crimes when the state’s national justice systems are unwilling or unable to do so themselves.

The Prosecutor’s office begins by opening a preliminary examination into a situation. Then, the second stage is launching an investigation, if the preliminary examination reveals a reasonable basis to believe that crimes were committed and that the Court has jurisdiction. Finally, the third stage involves the Prosecutor’s office launching specific prosecutions against individuals responsible.

A preliminary examination may start in one of three ways. The situation may be referred by a state party to the Rome Statute; it may be referred by the UN Security Council (in which case there are no territorial jurisdiction limitations); or the Prosecutor may open a preliminary examination on his own initiative. In the third instance – namely, if the Prosecutor opens a preliminary examination on his own initiative – he will need to go through an extra step of requesting authorization from the Pre-Trial Chamber before opening an investigation (the second stage).

The Office of the Prosecutor collects evidence independently, impartially, and objectively. An investigation can take as long as needed to gather the required evidence. Once complete, the Chief Prosecutor will request the Judges to issue summons or arrest warrants against suspects for the commencement of a trial.

Through the above process, the perpetrators of the heinous crimes in Sri Lanka can be charged and convicted before the Court. The Court can punish the perpetrators with appropriate sentences to provide justice and accountability for Eelam Tamils. The Court can order reparations for the victims as warranted to compensate them for losses and/or sufferings.

There is mounting evidence that the Eelam Tamil population in Sri Lanka was subject to atrocities that amounted to crimes against humanity and war crimes, particularly in the final years of the protracted armed conflict that ended in 2009. There are credible reports ranging from the UN Secretary General’s Panel of Experts, the Office of the High Commissioner of Human Rights, to other reputable organisations such as Human Rights Watch and Amnesty International that have documented the widespread and systematic violence and human rights abuses perpetrated against the Tamil people. We have captured the pertinent facts and have submitted a strong case to demonstrate that the nature and gravity of the crimes together with the persecution and coercion that forced Eelam Tamils to flee the island of Sri Lanka will enable the ICC to commence a preliminary examination that will eventually lead to justice and accountability long overdue for the Eelam Tamil population.

As affirmed in its preamble, the goal of the Rome Statute is to put an end to impunity for the most serious crimes of international concern, and thus to contribute to their prevention. We are determined to work relentlessly in supporting our case throughout this process with the ICC in pursuit of a successful outcome to satisfy our quest for justice for the Tamil people.

The subject-matter jurisdiction of the ICC, as set out in the Rome Statute, extends to: (a) the crime of Genocide; (b) Crimes Against Humanity; (c) War Crimes; and (d) the crime of Aggression.

There is evidence that Sri Lankan officials committed numerous Crimes Against Humanity and War Crimes. However, because of the limitations of territorial jurisdiction (the Court may only investigate crimes committed on the territories of states parties, and Sri Lanka is not a state party to the Rome Statute), we are only asking the Court to consider the Crimes Against Humanity of Deportation and Persecution, consistent with the jurisdictional precedent established in the Rohingya Myanmar/Bangladesh case.

The Court’s territorial jurisdiction is limited to those crimes where at least part of the actus reus^iv occurred on the territories of states parties, and Deportation and Persecution are Crimes Against Humanity that fit this jurisdictional requirement.

While there are many high-ranking officials that can be considered to be known as perpetrators, including at the very highest levels of government against whom there is mounting evidence, we have not specifically identified the perpetrators that are allegedly responsible for committing these crimes. We respect the independence and impartiality of the Chief Prosecutor and are certain that he will conduct a thorough examination of the pertinent facts and as part of the findings of an investigation will be able to identify individual perpetrators at the appropriate stage of the proceedings.

We will not seek to either pre-empt or limit the scope of investigations in any way and consider it proper to wait for the Chief Prosecutor to complete the due process to identify the individual perpetrators most responsible for the crimes in question.

Yes, perpetrators in Sri Lanka can be held accountable for these crimes. Generally, for the ICC to have jurisdiction over a case, the crime has to be committed either on the territory of a state party or by a state party national.

Sri Lanka is not a state party to the Rome Statute. This is why, for many of the crimes committed in Sri Lanka (including torture, mass arbitrary detentions, killings, etc.) – the ICC will not have jurisdiction. However, the specific Crimes Against Humanity of Deportation and Persecution did occur on the territory of states parties. This is because the Crime Against Humanity of Deportation necessarily occurs on the territories of more than one state; and the Crime Against Humanity of Persecution, when connected with Deportation, similarly occurs on multiple territories. This was the recent ruling of the Court in the Rohingya case involving Myanmar/ Bangladesh. In that case, individuals were deported through coercive acts from a non-state party (Myanmar) to a state party (Bangladesh). Rohingya people were persecuted in Myanmar and forced to flee (Deported) across the border into Bangladesh to save their lives. The Court ruled that it had jurisdiction, because at least part of the actus reus of the crime occurred on the territory of a state party (Bangladesh).

Our communication relies on this precedent. The Eelam Tamils were similarly subjected to a coercive environment, rife with torture, killings, and other atrocities, and were forced to flee their homeland due to this persecution and coercion, to seek refuge in other countries including Canada, Australia, Germany, France, the United Kingdom and Switzerland, which are all state parties to the Rome Statute. Therefore, we now reasonably believe that the required jurisdiction can be established for the Crimes Against Humanity of Deportation and Persecution, allowing us to submit this referral to the ICC to hold perpetrators in Sri Lanka accountable for these crimes.

We are specifically focusing on the Crimes Against Humanity of Deportation and Persecution, because based on the legal precedent set by the Myanmar/Bangladesh case, these are crimes over which the ICC can have jurisdiction. Furthermore, many of the serious crimes are constitutive of Persecution and directly related to the crime of Deportation.

The Crimes Against Humanity of Deportation and Persecution are the crimes we are asking the Chief Prosecutor to investigate. Due to the severe persecution that Eelam Tamils were subjected to in Sri Lanka and the coercive environment that existed due to crimes such as mass murder, detentions, abductions, torture, rape, sexual violence and enforced disappearances, the Eelam Tamils were forced to flee from Sri Lanka and seek refuge in countries such as Canada, Australia, France, Germany, the United Kingdom and Switzerland which are all states parties to the Rome Statute. There is strong evidence that such crimes reached the threshold of gravity, which the Court should not ignore. All these propositions are similar to the Myanmar/ Bangladesh case, where the Rohingya people were persecuted and forced to flee from Myanmar to seek refuge in Bangladesh, a state party to the Rome Statute. The Myanmar/Bangladesh case is one of the first cases where crimes committed in a non-state party to the Rome Statute are being investigated by the ICC without being referred by the Security Council. The Chief Prosecutor at the time asked for a ruling on whether the ICC could exercise jurisdiction and the Pre-Trial Chamber made the ruling in the affirmative. This precedent makes the Myanmar/Bangladesh situation legally relevant to the similar case of Eelam Tamils fleeing to foreign countries from Sri Lanka.

The current submission to the ICC is focused on highlighting the atrocity crimes perpetrated on Eelam Tamils, including in the final stages of the war, where according to credible international reports at least around 40,000 innocent people were massacred in Mullivaikkal. While the Eelam Tamils have been subjected to persecution through many atrocious campaigns of violence and pogrom since Sri Lanka’s independence in 1948, this submission involves only specific crimes committed against Eelam Tamils from 2002 onwards to conform with the ICC’s temporal jurisdiction requirements. Other ethnic groups such as Sri Lankan Muslims have also been targeted for persecution in Sri Lanka and our intention is also to make submissions related to other ethnic groups progressively to ICC based on our experience with the current submission.

Yes, the ICC may name and provide specific victims the right to participate and provide testimony and serve as direct witnesses to the crimes of Deportation and Persecution suffered by the Eelam Tamils. The Court has protection programs that are used to maintain confidentiality and safeguard the wellbeing of witnesses called upon to give evidence.

All states parties to the Rome Statute are required to cooperate with the Court. Therefore, if an individual is subject to an arrest warrant by the Office of the Prosecutor, and that individual travels to any state party, that state party would be obligated to detain and send him or her to the Court in The Hague. Once there, the charged individual would likely be held in the Court’s detention centre pending trial. If convicted and sentenced to a term of imprisonment, the individual would be imprisoned.

Even more broadly, international investigation at the ICC has value. An investigation would bring the Court’s resources to bear on these issues; the process of investigation will unearth new facts and testimonies, shed light on the historic reality of crimes committed, publicly bear witness to the severity of crimes that have taken place, and ultimately discourage future crimes from taking place.

The Sri Lankan judicial system is not independent enough to withstand political interference by past and current high-level government officials. There are strong personal and political incentives for Sri Lanka to not prosecute crimes committed by its own officials. In both its 2015 and 2021 reports on Sri Lanka, the OHCHR has acknowledged the failure of domestic mechanisms to investigate allegations of serious human rights violations and has actively encouraged the international community to seek accountability though the ICC and domestic foreign courts through the principle of universal jurisdiction.