Sri Lanka’s President pictured here with the Governor of the Central Bank Ajith Nivard Cabraal (L) and his brother Basil Rajapaksa, the Economic Development Minister (R) has repeatedly called the war a “humanitarian rescue operation with a zero civilian casualty policy”. Photo credit: REUTERS/Dinuka Liyanawatte

The report of the three-member panel of independent experts, appointed by the UN Secretary General to advise him on the issues of legal accountability arising out of the brutal final stages of Sri Lanka’s war, has finally been published. The panel has found ‘credible’ a large number of allegations of violations of international humanitarian and human rights law committed by the military protagonists in the conflict, the Sri Lankan security forces and the Liberation Tigers of Tamil Eelam (LTTE), some of which could amount to war crimes and crimes against humanity. It has also concluded that a political and legal environment conducive to the transparent investigation and prosecution of these violations does not exist in Sri Lanka. The substance of the report is as systematic and as rigorous as could be expected within the panel’s terms of reference, and the absence of co-operation by the Sri Lankan government. Within those circumstances, the report has historic significance as an independent account of what happened at the denouement of the war that directly and plausibly challenges the government’s version of events.

The panel has been careful to frame its recommendations for credible accountability measures as the responsibility of the Sri Lankan government at first instance, and envisage international action only upon the failure of the government to do so. However, for reasons extensively set out in the report, it would appear the panel has little expectation the government would act on its recommendations in a manner that satisfies international best practice. Beyond the recommendations addressed to the Sri Lankan government, therefore, the panel has also advised the Secretary General that an ‘international independent mechanism’ to impartially investigate and record the facts of these allegations should immediately be established.

In view of the emotive implications this particular recommendation has for notions of national sovereignty and independence (not least due to deliberate distortions by representatives and apologists of the Sri Lankan regime), it is important to note that the recommendation is not about the establishment of an international tribunal empowered to try and punish individuals. What is within immediate contemplation is essentially a fact-finding body. In the statement of the Secretary General accompanying the publication of the report, he has stated that the establishment of such a mechanism would require the consent of Sri Lanka or ‘a decision from Member States though an appropriate intergovernmental forum’, i.e., the Security Council or the Human Rights Council.

As with the polarised debates surrounding the appointment of the panel last year, there is little chance that its report will receive a dispassionate reading. Even before the report was officially published, predictable responses were already in evidence, with the Sri Lankan government rejecting it out of hand, and others such as Tamil diaspora groups welcoming it. It is fair to say that the present Sri Lankan regime and the Tamil diaspora (or at least its more vocal sections) are representative of the more extreme nationalist stances within the Sinhala and Tamil communities. For others less interested in such prepossessed postures, but more on a decent, sensible and principled approach to Sri Lanka’s post-war future, however, there are a number of moral dilemmas to be resolved and political choices to be made. In relation to post-war reconciliation, and especially the question of criminal accountability as an element of it, these dilemmas are located at the interstices between the legal and the political, and the international and the domestic.

There are two key assumptions underpinning the panel’s report that are particularly important in this regard. The first is that there is a positivist reality of an international rule of law on humanitarian rules and human rights, which is the basis for the claim that leaving credible allegations of violations unaddressed in the Sri Lankan case would constitute an unpunished assault on the entire regime of international law. While in recent decades, there has been increasing clarity and crystallisation of international humanitarian and human rights norms in terms both of substantive rules as well as procedures and institutions for their enforcement, it nevertheless remains the case that the international system of law and politics continues to be essentially wedded to the classical Westphalian model, together with its doctrinal elements such as national sovereignty, non-interference, territorial integrity and the sovereign equality of states. As a general proposition, therefore, the observance and enforcement of international law remains an obligation of the state as a subject of international law, notwithstanding progressive developments in relation to human rights and duties, legal personality, and international enforcement mechanisms both ad hoc and permanent.

This is not to unduly reify the Westphalian nation-state, nor to accept the hyperbolic claims of sovereignty made by states having things to hide, but merely to acknowledge the reality of the resilience of the state in the existing international order. Consequently, illegal behaviour is addressed rather differently from the way in which it would be within a domestic legal system, and there is therefore a discernibly political element to the pursuit of international legality as we see in any number of examples in the recent past, from the international use of force to international individual criminal liability. If this were not the case, for example, all member-states of the UN would be signatories to the Rome Statute of the International Criminal Court. There is also a critical domestic element to this, in that the democratic wishes of the people within a state are also relevant to the pursuit of international legality.

Seen in this light, the panel report’s assumption that the absence of genuine and immediate redress in the form of criminal liability for violators in the Sri Lankan war erodes the credibility and authority of international law seems, at best, idealistic. It could even be seen as a distinctively liberal interventionist (or ‘cosmopolitanist’) ideological approach in which international norms are accorded a primacy over domestic sovereignty, inviting opposition thereby in ideological and political terms. This is apparent in the Sri Lankan government’s initial responses in which it was alleged that the acceptance of the report would imply a repudiation of the entire UN system, meaning the established order of sovereign states, and its appeals to states such as China, Russia and India in resisting the purported undermining of those principles.

The second assumption that may not find universal currency is the notion that immediate criminal accountability is indispensable to post-war reconciliation. In any context, reconciliation after a protracted conflict is a complex and multi-faceted process involving delicate questions of sequence, timing, and trade-offs that may be regarded as unpalatable by some. The report asserts that choosing between models of retributive and restorative justice is a false dichotomy, arguing that both elements are necessary to a legitimate process of reconciliation. It might be asked, however, whether the insistence on immediate retributive measures as a sine qua non of reconciliation is not itself a false dichotomy. We should not regard criminal accountability in processes of post-conflict reconciliation as an absolute concept in law or morality, but one that has often been treated as a political variable subject to negotiation. To cite a familiar example, it would have been very unfortunate if Martin McGuinness were unable to play the constructive role in the Northern Ireland peace process and now as Deputy First Minister in the power-sharing executive by a doctrinaire attitude to his terrorist past.

Admittedly, the basis for the panel’s scepticism arises from the recalcitrant behaviour of the Sri Lankan regime, which refuses to countenance anything other than resources in terms of international engagement with its post-war programme, its militaristic nationalism and ethnic triumphalism, and its intolerance of critique and dissent. Neither its petulance abroad nor its authoritarianism at home gives ground for much confidence that it will display sensitivity to Tamil grievances and aspirations in social reconciliation or in a political settlement. But in conceiving a reconciliation process, it is necessary to think beyond the regime to the broader social and political values that animate a South Asian society. Thus, given its track record, the fact that the regime is the champion of restorative justice is certainly unhelpful, but that should not blind us to the deeper issues of context. In this regard, the dominant religio-cultural values and sensibilities shared between Sinhala Buddhists and Tamil Hindus do not attach the same premium, at least not temporally, to redemption through responsibility and answerability as in the Judeo-Christian tradition. At least to some extent, this resonant social sensibility explains why the regime is able to command wide support for its resistance to criminal accountability.

Perhaps unsurprisingly, the hostility to any accountability initiative is clear among the majority Sinhalese, even among those who would not otherwise support the regime. While the panel report is a clear acknowledgement of the suffering they underwent, it is difficult to discern precise contours of opinion about international criminal accountability among those who were at the receiving end of the wartime abuses – the Tamils living in the North – although the Tamil National Alliance (TNA), their main vehicle of parliamentary representation, has welcomed the report. It is also fair to say they have more pressing problems to worry about in the post-war environment, of which there are both serious existential issues, and more fundamental political aspirations. Especially for those living in the North, normalcy is far from reality. Only a part of these are the deciduous problems encountered, unfortunately but unavoidably, by people living in former conflict zones in the aftermath of war. It is now disconcertingly apparent that the militarisation of all spheres of life in the North is becoming increasingly institutionalised, and moreover, that this is the deliberate policy of the government. The regime is able to implement its policy with regard to the North, and more generally the continuation in force of disproportionate and repressive wartime national security measures, with virtually no meaningful democratic opposition.

Excepting international and local human rights groups whose campaigns are based on normative principles rather than a political project, the accountability demand is strongest among the Tamil diaspora, which is once again unsurprising. Especially among those whose Tamil nationalism is synonymous with a commitment to a separate state, the defeat of the LTTE and the death of its leaders mean they have nothing lose by the panel’s adverse observations on the LTTE, and the report thereby becomes an instrument for the settling of scores with the victorious regime in Colombo.

In view of the credible accounts of abuses that have emerged – listed and evaluated according to an expressly stated methodology by the panel – it would be crass and unconscionable to deny the genuine moral outrage that animates many, if not all, of those who are seeking criminal accountability from the alleged perpetrators. However, an approach to the matter based solely on moral verisimilitudes is impercipient to the multiplicity of other factors relating to the local political context in considering the future of post-war Sri Lanka. Crucial among these is the ineluctable truth that no process of reconciliation can have any hope of success without broad democratic support. It is obvious that there is no such support in Sri Lanka at this time for any initiative involving criminal prosecution and punishment; in fact pellucid hostility better describes the state of public opinion, and the best evidence for this is the number of opposition parliamentarians falling over themselves to condemn the report, the panel, and the Secretary General.

A realistic apprehension of this reality however does not necessarily mean that the question of accountability is closed forever. Over time it is entirely possible that the accountability issue may be revisited, with greater prospects for success than in the emotionally charged atmosphere of what is still, in the historical scheme of things, the relatively immediate aftermath of the war. This is borne out by similar experiences elsewhere such as Germany and Cambodia, in which a moratorium on reopening particularly egregious or traumatic events has in fact ensured that they were more effectively addressed by a succeeding generation more secure in the stability and capacity of their society to resolve major differences.

On the other hand, the nature of the Sri Lankan regime, and especially its post-war conduct, gives rise to understandable anxieties. The regime’s majoritarian ideological foundations result in a populist and authoritarian approach to government, which is incapable or unwilling to regard as legitimate, and therefore to accommodate, Tamil and other minorities’ political aspirations to autonomy, recognition and representation. Using the autocratic powers of the executive presidency and its comprehensive grip of Parliament, the regime is also tampering with Sri Lanka’s constitutional heritage as Asia’s oldest democracy. In the state’s relations with the rest of the world, it seems incapable of nuance and calibration, beyond the crude calculation that those who are not uncritically with it, must be against it. Less tangibly, one of the more chilling aspects of its post-war conduct has been the construction of a triumphalist historical narrative enmeshed with Sinhala-Buddhist nationalism, together with the suppression of the space for alternative accounts. The regime’s intemperate response to the Secretary General’s panel from the outset is a function of this outlook.

What is critical to note, however, is that all this is done with a widespread political legitimacy the regime enjoys – albeit largely among the majority community, but a democratic majority nonetheless – which stems from successive democratic mandates. The regime’s repeated electoral successes are in turn the result of its success in reshaping the entire political discourse in Sri Lanka according to an ‘us v. them’ or ‘patriot v. traitor’ dynamic. During the war, the LTTE represented the obvious, and suitably diabolical, enemy. The West, the Tamil diaspora, and human rights groups are now fitted into the role of the ‘other’, which is fundamental to the regime’s discursive logic. It is from the perspective of these domestic political implications that the uses to which the panel’s report is put must be considered.

In the context of what Lord Malloch Brown has described as ‘a new cold war of ideas’ on human rights between the West and China and Russia, it would seem that any further international action on the report, or indeed the lack thereof, would depend on the political vagaries within the councils of the UN. Should the international community decide to act on the panel report, the regime will have to deal with that in the appropriate intergovernmental forums. Although it has so far been successful in repelling international action, notably in the Human Rights Council in 2009, it should also realise that the surest way of sustaining adverse international attention is to continue on the obtuse and bellicose path it has taken so far. Its reliance on China, Russia, the Non-Aligned Movement (NAM), and especially India, is not a failsafe insurance policy in all circumstances.

On the domestic political front, a more nuanced response is called for from those desiring a more liberal future for the country. To the extent that the regime is able to mobilise democratic support for itself by projecting the panel report and the proposed international mechanism as a selective persecution of Sri Lanka, the unintended consequence would be to further consolidate and entrench the regime. Keeping the ‘international factor’ alive on the domestic political agenda might seem like a good way of keeping the regime in check, but given the state of public opinion described above, this also significantly erodes the legitimacy of human rights and accountability advocates in the eyes of the majority. By removing what they say and their right to say it from the public discourse, the space for reconciliation is distorted, enabling the regime to occupy the vacuum. Inflaming the populist paranoia it has itself instituted, as it has done in the past, the regime would be given the opportunity to tar-brush the opposition, Tamil parties, and civil society as fifth columnists out to undermine the sovereignty, independence and self-esteem of the Sri Lankan (Sinhala) people. This would be most unfortunate, not only for reconciliation, but also for Sri Lanka’s democracy and any hope there remains for a happier constitutional settlement among all the peoples of Sri Lanka in the future.

It seems therefore that sound strategy would oblige the democratic opposition, Tamil political parties and civil society in Sri Lanka to regain lost legitimacy among the populace by drawing the line at international intervention as well as immediate criminal accountability. This entails neither an abdication of Sri Lanka’s international obligations nor a renunciation of the possibility that accountability might be revisited when it is politically feasible. A strategy aimed at depriving the regime of its absolutist patriotic pretensions is also a principled one based on democracy, human rights and popular sovereignty, and one that reclaims the constitutional character of patriotism from the procrustean parochialism of the regime’s vision. Committing firmly to a Sri Lankan process – which will be riven with difficulties and excruciatingly slow, but more stronger for it – would enable the use of the resulting legitimacy to hold the regime to account on reconciliation, governance, democracy and pluralism.