Groundviews

War Crimes Investigations in Sri Lanka: An Unpopular View

“In trying to do good, we have been living beyond our moral resources and have fallen into hypocrisy and self-righteousness” — William V. Cannon, commenting on the Vietnam War, New York Times, February 6, 1966

“Conquer the angry man by love, Conquer the ill-natured man by goodness. Conquer the miser with generosity. Conquer the liar with truth.” — The Dhammapada p. 223

Despite the best efforts of the Sri Lankan government, the claim that Sri Lanka is a “Killing Field” is fast becoming a social and political rallying point for diverse interest groups. Allegations of government war crimes outlined in the Darusman Report, the now infamous Channel 4 video, and the case filed by Tamils against Genocide (TAG) with the Department of Justice in the United States, as well as electronic reports published across the world have by now overshadowed the victory over the LTTE. The government’s uncompromising resistance to investigate war crime allegations by any external body could turn out to be counterproductive to national interests. It may invite unwelcome foreign interference, threaten peace, reconciliation, and development efforts, and enmesh the country in colossal waste of financial and human resources. Refusal to hold inquiries may even threaten the stability of the ruling regime.

Allegations of misconduct are not proof of the same. There have been other moments in which the international community was receptive to highly sensationalized claims about war crimes made by the international media and the United Nations. We know those bodies are inconsistent in their treatment of human rights and tend to reproduce the views of powerful, rather than weaker states.  At times, accusations of human rights violations have been exploited by powerful states to control and harm weaker ones, and the intent of some allegations is to promote the selfish economic, political and cultural interests of the accuser, rather than to protect universal human rights.   But the struggle for human rights must not be viewed only as derivative of state and its national interests. The state alone cannot be the sole guardian of human rights and, in cases where violations take place; the state must be held accountable.  A strong state acknowledges malfeasance and punishes wrong-doers, thus promoting the sense in citizens and the international community alike, that it abides by the rule of law and pursues justice.

Many of the current justifications for refusing an investigation are based on unrealistic, exaggerated, and mystified fears. If we handle the allegations intelligently, Sri Lanka will find itself with an historic opportunity to make a tremendous contribution to the protection of human rights globally.  If we cooperate in impartial investigations into war crime allegations, we will not face investigation alone – all global human rights actors will stand trial.   To make the best of the situation, we must be self-critical: Nearly three years after the end of the war, how and why has Sri Lanka reached an impasse in investigating war crimes? What can comparative history teach us about war crimes committed by the State and militant groups? Why do people so far removed and ‘ignorant’ of the context of the Sri Lankan civil war believe we committed war crimes and demand an investigation? Is protection of national interests the only reason the current regime opposes an investigation? What are the social, economic, and political costs of avoiding an impartial investigation? And, most importantly, can a credible investigation guided by a sincere desire to safeguard human dignity yield win-win results for all stake-holders? Can it isolate those who would exploit human rights arguments for selfish gain?  Maintaining a sense of humility while we deliberate these complex questions will help us avoid turning Sri Lanka into a battle ground on which various interest groups seek to exploit human rights in harmful ways.

It is now clear that the euphoria that sprang from Sri Lanka’s victory over LTTE terrorism cannot be sustained in a manner that will overshadow war crimes allegations. The government’s confidence in the power of their victory has led to its failure to make unified, consistent and nuanced diplomatic responses to the charges. Too many politicians, diplomats, and military officials have relied on simplistic explanations and high-flown rhetoric, and these have not been well-received by their audience.  No single institution (not the Ministry of Defense, nor the Foreign Ministry) speaks with an authoritative voice. Government rebuttals and explanations vary and change over time, straining the credibility even those who initially found the allegations suspicious, and leading them to favor an investigation.

The Darusman report was leaked to the newspapers. Neither the UN nor so called allies of Sri Lanka were able to stop dissemination of the report.  After it was released, the Sri Lankan government immediately rejected it as biased and fundamentally flawed. A few days later some politicians said that the government had not received the report. One minister warned that there would be protests, while another claimed, “It is not the Government’s intention to create any ‘mass protests’ and agitation relating to the ‘Darusman Report’ as alleged by some. We are not instigating hysteria nor violence or embarrassment to the UN community and to foreign Missions.”

At the same time some of the protests protest rallies held in Colombo were organized by government ministers, although it is unlikely that they or the majority of the public (including the protestors) had access to the war crime reports or the time to reflect on them.  The protests were sporadic and protesters lacked focus.  Some asked for the removal of Ban Ki Moon, some were strongly anti-UN, and others were trying to separate the UN and Moon from the Darusman report.  All groups distorted the report by ignoring the fact that it accused both the government and the LTTE of war crimes. Protestors raised fears of punitive action against Sri Lanka when the report called only for investigations.  The leader of the opposition simply tried to score points from the situation by saying that it was him who refused to ratify the ICC, while a number of prominent religious leaders were too quick to condemn the report.  They failed in their duty to help the government to find a constructive response.

The UN report notes that there is substantial evidence of war crimes.  But the only action demanded in the report is that our government conducts an impartial investigation.  The anti-investigation lobby gives credibility to the allegations when they claim that those who issued the report are actually punishing Sri Lanka. Punishment cannot be meted out unless guilt is proven. The anti-investigation faction claims that the UN is trying to execute its leaders and impose economic sanctions, and accuses the authors of the report of being jealous of Sri Lanka’s victory against terrorism.  A cynic might say that politicians such as G.L. Peiris actually provide justification for an impartial investigation when he says ‘that justice, fair play and morality should be embedded in international law and it should not be the subject of political interference.  The international community is unreasonable because it expects Sri Lanka to react quickly when Cambodia, for example, took decades to adhere to international standards.’  Ironically, while the government is persistent in its refusal of an international investigation, on the 24th July, the International Criminal Tribunal for Rwanda, presided over by Sri Lanka’s Former Chief Justice, Asoka de Silva, convicted former military chaplain Emmanuel Rukundo and sentenced him to 25 years in jail!

Government claims about selectivity and bias, fakery, and technical manipulation were hastily made and lacked professionalism or any pretense to the kind of strategic diplomacy that is required when dealing with powerful institutions. It is useful, in this case, to look at an example that was more judiciously handled: President Bush called the allegations of abuse of Iraqi soldiers in Abu Ghraib “abhorrent” and promised to punish those responsible for them, even after Specialist Joseph Darby, a member of the U.S. Army’s Military Police Corps, delivered a CD full of documentary photographs to the Army’s Criminal Investigation Division. U.S. Army Maj. Gen. Antony Taguba’s report of investigations into abuses at Abu Ghraib, internally released March 12, concluded that U.S. soldiers committed “egregious acts and grave breaches of international law.” These acts were “sadistic, blatant, and wanton criminal abuses” and included “keeping detainees naked, pouring cold water on naked detainees, using military dogs without muzzles to intimidate and frighten, and threatening detainees with loaded guns.” Later President Bush issued a public apology to Iraqis and a few soldiers were punished. But the US response was one of strategic diplomacy — it negotiated between its geopolitical interests and the demand for human rights.   This was possible because the US government did not prevent the flow of information to its public and used the media to create a broad-based consensus within the United States, that it should penalize those responsible for the abuses at the same time that it must maintain the good character of its security forces and the promote patriotism. Many argued that the punishment was not proportional to the crimes committed, and that because of its power the US avoided facing public scrutiny of its abuses by the international human rights industry. This may well be true, but it does not detract from the argument that the U.S. handled allegations of war crimes in a sophisticated fashion, as should Sri Lanka.

The Sri Lankan government’s response to allegations of war crimes was “zero civilian casualties,” a position that is simply not credible.  On 15th June, Government MP Rajiv Wijesinghe noted, “There were several levels of civilians who were killed.  Some of them were put deliberately in the way of the forces by the LTTE.”  Wijsinghe’s response elaborates only on one level and does not comment on the “other levels,” though presumably civilians were also killed in some other fashion.  A recent report issued by the Ministry of Defense makes a clearer admission of civilian casualties. Civilian deaths are inevitable, particularly in a war between conventional and non-conventional armies, particularly when the war is over-determined by the technology. When US and NATO forces bombed civilian targets prohibited by international law, they admitted the truth, made an apology, and conveniently avoided the scrutiny of the human rights lobby and peace movement.  But back-tracking from our government’s absurd initial claim of zero casualties forces even those critical of the UN and Western media to doubt the government’s story.

Reports of events are always shaped by deliberate choice of language, are grounded in history, ideology and power relations, and are shaped by social and technological determinants.  The description of an investigation as “impartial” represents a variety of different perspectives while it examines a body of evidence.  “Truth” is found by making space for shared norms and values across different cultures about rights, rather than allowing power holders in a given culture to cover up abuse and escape from external scrutiny.  The emerging global solidarity in the demand for an investigation is a rejection of the tyranny of cultural relativism. The latter politicizes human rights in the name of culturally specific national interests, and refuses to discuss the existence of universal human rights.

The international state system reflects a skewed distribution of economic and political power. Strategic diplomacy requires contentious negotiations between human rights and the particular interest of the states. The tendency is to subordinate the former to the latter, but human rights pose a fundamental challenge to states because human beings universally desire justice and equal rights.  Human rights-friendly strategic diplomacy requires a cadre of foreign policy actors with experience and skills different from those whose loyalties are primarily to the military, business, academy and kinship.  If states are to be held accountable to ‘international institutions’ we must embrace strategic diplomacy and prevent the process from being hijacked by jingoistic nationalists and sub-nationalists groups.

War crimes allegations do not implicate the entire security establishment, but only the individuals who are responsible for them.  The majority of soldiers in most armies are disciplined individuals take great care to avoid civilian casualties and abide by the rules of law.  Some have risked and sacrificed their lives to save civilians, and our justifiable pride in the qualities of our security forces will not diminish even if allegations of war crimes are proven against a few individuals.  The conviction of the commander of the Armed Forces by a military tribunal was not considered an insult to the image of the military.  On the other hand, highly politicized refusal of an impartial investigation does tarnish the military and potentially obstructs its own institutional development.

Militaries are an arm of the state and obey the state’s orders — without unvarying obedience a military is worthless.  The actions of the military need to be understood in relation to the social and political underpinnings of the state, and often allegations against the military are actually allegations against the state.  Modern nation states are the guardians of capitalist interests and do not exist purely to protect the common interest of the population.  Nor are they autonomous from the forces shaping asymmetries of power and wealth.  In the era of globalization, neoliberal institutions rely heavily on the state to discipline and punish those acting contrary to their interests. Sometimes the decisions of the state may force the military to violate the rules of war.  Under these circumstances, state power may not protect national interests, but instead frame particularistic interests as national interests. In such circumstances the national security apparatus is a screen to hide the real agenda.  It is especially difficult to separate these interests while conducting a war because the boundaries between civilian and military institutions are blurred, and the military apparatus itself is often closely allied with private industry (as was evident, for example, in Dick Cheney’s connection to Halliburton).  Under these circumstances military flexibility is limited, and the ‘deadlines’ for military targets are determined by economic and political interests.  In its coverage, the media often fails to make this distinction because media it is also “embedded” in a highly politicized global military industrial complex.

Neither are military personnel entirely free from culturally specific social forces including education, social upbringing, historical consciousness, racism, and exclusive nationalism. When hybrid and cosmopolitan national histories and consciousness are racialised in multiethnic societies, the “war against terror” ceases to be simply about terrorism, and becomes a clash between cultures and an extension of a dominant culture over weaker cultures.  At the same time, history is full of examples of military personal refusing to bow to jingoistic, racialized, and gendered national conscious and acting as whistle-blowers against their own institutions colleagues. When well-meaning military officers resist their own racialized cultural conditioning and chose to strictly obey the rules of war, they run the risk of being branded traitors and are subjected to judgment by highly politicized military tribunals.   Recent uprisings in Egypt and other Middle Eastern countries have shown that the conformity of the military with the ideologies of the state (its exploitation of religion, xenophobia, national security, development, and nationalism) cannot be taken for granted, as the military might align themselves with, or turn a blind eye to, anti-state forces or even directly support them.  War crimes investigations can actually protect soldiers, and help place the blame for violations where it belongs.  In the 1980’s Professor, Newton Gunasinghe pointed out the importance of understanding the sociology of security forces in relation to the hegemonic national culture.

Civilian-military relations in the theater of war are complex, and it is impossible to judge such relations entirely in terms of civilian laws.    But we must be cautious when militaries and militant groups justify carpet and suicide bombing, torture (water boarding, stress positions, abdomen slaps, the “attention grab,” the “attention slap,” the cold cell) and recruiting child soldiers in the name of military strategy.  During the hearings conducted by the Citizens Commission of Inquiry on United States War Crimes (Washington DC, December 1-3, 1970) Colonel Oran Henderson, the highest ranking officer to face court-martial for the My Lai Massacre, and others presented US military strategy as a tactical necessity and claimed that actions that could be potential considered war crimes were merely “tragedies” — unintended consequences of military action.  In sanitized language, bombing villagers was renamed “prepping the area.”  The American Lieutenant-Colonel who directed the operations admitted, “We sort of shoot it up to see if anything moves.”  New York Times correspondent R.W. Apple said, “Anything that moves and has a yellow skin is an enemy, unless there is incontrovertible evidence to the contrary,” and that this was based on the general policy of “no villages, no guerrillas.” Prolonged stay in the theater of war causes psychological damage to soldiers and their fatigue, frustrations, and fears can easily draw them to actions that lead to war crimes, just as sometimes civilians go on shooting rampages.

Is it sufficient to dismiss these actions by calling them tragic and an aberration? Do the ends justify the means? Is there no atrocity that is off limits if it serves our ends?  In conflicts in multi-ethnic societies, both ends and means are decided in a complex historical process out of which the conflict was born.  Means used in the war, by militaries and terrorists alike, can also be tactics to create the geo-spatial context for a solution deemed desirable even before the conflict began.  Arguments that ends justify the means do not invalidate human rights discussions.  Assessing the cost of war is still important. Transparency and accountability allows reconciliation after legitimate military ends are achieved by building trust between groups.

The institutional memories of violence in Sri Lanka shape diverse responses to war crime allegations.   Sinhalese memories of LTTE massacres of villagers, young Buddhist monks, and unarmed holiday-bound policemen influenced their support for the war and reaction against the war crime allegations. The memories of Tamil reaction to war crimes allegations must be understood in the context of violence against Tamils and the fact many were driven into Diaspora. They remember the state failed to prevent violence or to hold those responsible to account, and that these events predate the fascist behavior of the LTTE.  Tamils could not possibly forget the crimes against humanity perpetrated by the LTTE.

We Sri Lankans will not have any difficulty coming to terms with whatever is revealed by an impartial investigation because we already know about the murder of thousands of innocent Sinhala youth by the state and the JVP, and the violence against political dissidents and critics by our successive governments, particularly since 1977. But both communities seem to suffer from selective amnesia, invoke some past memories and burying others.  Memories are reconfigured to serve many different interests, and stories pass from one generation to another.  Their potency as a destructive force can be minimized by meaningful reconciliation, empowering people to come to terms with the truth rather than suppressing it.

Lessons cannot be learned, and parties at odds cannot be reconciled unless there is a genuine attempt to know and acknowledge the truth. Burying the past only widens the space for doubt.  Propaganda turns doubts into fears by distorting the truth. A lack of humility and inability to accept the truth can turn selective memory into a vindictive and unforgiving force.  If the world had buried all the horrors of its wars, slavery, racism, sexism, and other oppressions, we would never have made progress in protecting human rights and we would all be closer to extinction.  Genuine commitment to truth democratizes history. When history is no longer a monopoly of the powerful, the past can become an important source in building ethnic harmony.

Reconciliation is also a social-psychological process.   It is about personal and interpersonal healing that involves empowering the people to come to terms with the years of hurts, fears and anxieties, all of which are predicted on commitment to explore the truth.  The top-down suppression of truth is an insult to capacity of the humans to turn their negative memories into a force of peace and justice.

It would rather naïve to suggest that reconciliation automatically trickles down from development, or that an investigation into truth undermines development.  The neoliberal development model is incapable of creating conditions for reconciliation because it is predicated on inequalities on gender, race, and class lines. In fact, neoliberalism has been a major source of conflict around the world as it conquers and plunders resources, and disrupts peoples’ physical environment, along with their symbiotic relationships with identity.   Ethnic reconciliation is essential if we are to oppose such economic forces and build solidarity among all citizens.  Earned trust between communities makes possible just and equitable development.

Those who oppose the war crime investigation make claims about the hypocrisy and double standards of Western countries, the human rights industry, and the United Nations. Many of these complaints are legitimate: some Western developed countries have patronized the world’s most brutal regimes and, as in the case of Chile and Pinochet, the United States maintained deep silence during war crime trials.  The U.S. and other Western nations are notorious for supporting brutal regimes around the world, condemning them only when they are no longer useful or relevant to their geopolitical interests.   The world’s most notorious dictators have been supported by advanced industrialized nations.  Almost all the members of the UN Security Council are large exporters of weapons, and manufacture and trade in arms constitutes a good part of their GNP.  Yet we must also recognize the domestic opposition to human rights abuses by these countries and the existence of space for deliberation of justice, perhaps far more than the emerging supper-powers.

The state has a reasonable desire to prevent the Diaspora from exploiting war crime investigations.  But it is unfair to depict all calls for investigation as conspiracies by the LTTE and the Tamil Diaspora.  There is enormous diversity within the Diaspora.  Tamils who despise the fascism of the LTTE would inevitably join the pro-investigation lobby — they do not see calls for an investigation as indicating support for the LTTE.  For them, the history of the ethnic conflict predates the LTTE, although later that history was revised by the LTTE in ways detrimental to the interests of the Tamils. Nor do Diaspora Tamils have reasons to believe that rejecting an investigation would bring a political solution to the conflict: they haven’t seen evidence of that for last 50 years. In their eyes, the country has gone backward from the federal solution to a simple call for a parliamentary select committee.  While the LTTE lobby is unlikely to push the international community to investigate its own conduct, the government’s compliance with an investigation will help isolate Tamils who are sympathetic towards a settlement within a unified Sri Lanka from the pro-LTTE lobby.  The LTTE lobby may also not be too concerned about the international community investigating the LTTE for war crimes, because none of those who could be held directly responsible for war crimes are alive, except for Karuna and Pilliyan!

Pointing fingers at the faults of the “other” as a way of evading an investigation is ineffective.   Once serious accusations of war crimes are made public, especially when issued by legitimate bodies like the UN, the state is under increasing public pressure to respond.  Globally, there is a growing community of people who believe that human rights violations should be investigated and that perpetrators should be punished without regard to the geopolitical, cultural, and economic interests of states.   They believe human dignity does not derive from the state and that the international state system is responsible for safeguarding human rights.  Electronic media makes it difficult to interrupt the flow of information among pro-human rights groups or to prevent the formation of global solidarities.  Events in the Middle East have shown the limits of state use of religion, nationalism, and xenophobia as excuses to prevent global solidarities from becoming counter-hegemonic forces against the state. One flaw of the state-centric analysis of human rights (akin to the fundamentally flawed Realist perspective in international relations) is that it does not pay much attention to the norms and values of transitional communities that share common values and are unwilling to subordinate them to the interests of their respective states.  Just like “whistle blowing” military officers, citizens are not always willing to support the state at the expense of universal norms of equality and justice.

While one cannot entirely dismiss the fear of external conspiracies, conspiracy theories are often counter-productive to the state’s national interests.  If one is to understand foreign policy maneuvering regarding war crimes allegations, one needs to begin by investigating domestic social, economic and political structures.  If we focus only on external threats we will arrive at only a partial understanding, and fail to see the motivation behind domestic responses to international pleasures. Chomsky asks, “Who sets the foreign policy? Whose interest do they present? What are the domestic sources of power?” There exist “propagandists who labor to disguise the obvious, to conceal the actual workings of power, and to spring a web of mythical goals and purposes, utterly benign, and that allegedly guide national policy.”  The propagandist model represents the nation as a universal category that responds to threats to security, order and stability, “by awesome and evil outside forces.”  Atrocities are explained away as unfortunate or tragic deviations from national purpose, the resolution of which does not require external interference.   The resulting culture of fear and its refusal to allow external interferences is really all about centralization and domestication of state power.  Generally, it does not help to mitigate the negative implications of external interferences.

The superficial distinction between Western enemies and non-Western friends makes the anti-investigations lobby optimistic that it can avoid an investigation.  They ignore the fact that the Western and non-Western dichotonomy is used as a screen by the capitalist system to ‘indigenize capitalist development’ and make the management of its contradictions exclusively a responsibility of individual states. This allows capitalist institutions to escape from any responsibility for the crises it generates.  The dichotomy also obscures the close relations and interdepencies between the ruling bloc and Western counties, and so-called Western enemies and non-Western friends, providing an indigenous mask for the ruling block.  We must keep in our minds the remarkable positive correlation between the rise of anti-Western rhetoric and the colonization of Sri Lanka by transnational capital.

The anti-investigation lobby applies the labels of neo-colonialism and conspirators only to selected Western countries, rather than to India and China. China’s reputation as a supporter of the world’s most brutal regime makes its policy difficult to separate from those of Western countries.  Indian involvement in the Sri Lankan ethnic conflict has been far more intrusive than any Western country and Indian and Chinese have no less a neo-colonial relationship to Sri Lanka than Western countries, though perhaps the former could be more debilitating to Sri Lankan interests than the latter.

In a world of unequal power relations between states, smaller states find it extremely difficult to avoid pressures to respect human rights. Smaller states will always be at a disadvantage and will be unfairly treated.    The only way smaller states in economic or geopolitical competition with the accuser states can withstand human rights accusations is by aligning themselves with other states with the same interests. But these alignments always are not free of costs: they always mean significant compromises of a country’s economic, political and cultural sovereignty.

China, Russia and India can afford to play geopolitical games in response to accusations of human rights violations because they command economic and political power.   Sri Lanka cannot take the support of these so-called friendly states for granted — these countries will drop Sri Lanka as soon as it suits them. If Sri Lanka becomes a battleground for geopolitical contests between Western and non-Western Countries, the cost will be far greater to us than the benefits.  If friendly non-Western countries feel that the market for their products in the West depends on improving their image among the Western countries, then they will not hesitate to join the call for investigations.  The same situation could arise if there is a growing constituency in these non-Western countries, including opportunistic politicians, who put pressure on their states to support investigations.

Relying on unpredictable friends also deprives Sri Lanka of the freedom to take a stand on human rights abuses by its friends, even in situations where these “friends” violate the rights of the Sri Lankan citizens and deprive them of control over their own resources.  Is it really worth ceding the high ground in order to play international geopolitical games?

If we proceed with a war crimes investigation, this willingness to take human rights seriously will do more to legitimate our complaints about the exploitation of human rights issues by rich and powerful countries than any act of resistance could do.  We have the opportunity to set a good precedent the human rights movement worldwide.  It is best to approach the question of an investigation from the perspective of truth and justice, and to make sure that we ground our actions in our philosophical and religious teachings, rather than in the rhetoric of nationalism and development. Letting the latter frame the discourse of war crimes allegations is simply an insult to the former!

Long Reads brings to Groundviews long-form journalism found in publications such as Foreign PolicyThe New Yorker and the New York Times. This section, inspired by Longreads, offers more in-depth deliberation on key issues covered on Groundviews.