National Reconciliation, Transitional Justice, Rights and Accountability in Sri Lanka

Image credit Steve Chao, via Al Jazeera

Good Afternoon; Esteemed and Distinguished Guests, Ladies and Gentlemen; Dear friends

Thank you for inviting me to share with you my thoughts on reconciliation.

I will not devote much time here, to describe the history of the conflict or the background situation in Sri Lanka.

The physical and emotional pain that has been handed down through generations in Sri Lanka during the last five decades has mainly been the inevitable outcomes of past policies followed by the successive governments, based on discrimination and social exclusion. The players, particularly parties to the conflict, have continued their unceasing confrontational politics. The current landscape in Sri Lanka and within the diaspora bears testimony to this situation.

On-going effects of dispossession, destruction, dispersal and subjugation mean that the affected people have become the most disadvantaged in society. Indications are that the gap between the affluent and the poor continues to widen. The island’s leadership seems neither committed to a fair and equitable socio-economic vision, nor concerned about this situation that led to political violence in Sri Lanka on multiple occasions in the past.

The country’s top executive does not seem committed to leading its people to reconcile and build a united country where everybody can co-exist as equals. No demand or mass action for reconciliation seems to emanate from the bottom of the society that may influence the top executive.

Transitional Justice

Transitional justice has become the focus of societies coming to terms with their violent past and those who perpetrated that violence.

There is an ongoing debate between diverse schools of thought about transitional justice, mainly regarding the obligation to punish in post-conflict states.

Legalists believe that international law is central because it imposes an obligation on states to punish individuals guilty of the most serious violations of international law. As such, trials must be among the mechanisms chosen.

The ‘realist’ school believes that in the interests of democracy and stability, the choice should be left entirely to the post-conflict state concerned.

The strategic legalist school argues that accountability mechanisms such as trials are not mandatory, and should have social objectives beyond the punishment of the individual, such as providing the setting for social deliberations about justice.

The political realist position sees that formalised justice as destabilising and undemocratic and an impediment to peace; of use only as a bargaining chip to be bartered away for a better settlement.

The task of transitional justice is partly a forward-looking one that ensures violations will not recur in that society. Hence, such trial mechanisms should support the rule of law and ensure the presence of justice for ordinary people in post-conflict states.

In Sri Lanka, there has been no post-conflict change of state; rather the state has further reinforced its authoritarian mechanisms and tendencies. However, the legal and moral obligation to punish perpetrators of crimes against humanity has caused much consternation. This necessarily limits the options the state has at its disposal to deal with past violations, including the option of no action.

War crimes, as well as torture, genocide, and crimes against humanity in times of war and times of peace, are international crimes. Therefore, there exists a non-derogable obligation to prosecute or extradite the individuals responsible. No amnesties can be given to them. Five affirmative state obligations in international law are outlined, including the duty to:

1. establish the fate of victims
2. identify perpetrators
3. provide compensation to victims
4. take affirmative measures to prevent non-repetition, and
5. prosecute and punish those found guilty.

Those who favour minimum accountability to transitional justice suggest that accountability should never be bartered to arrive at peace, in whatever way that peace is defined. They also hold the view that trials are the most effective insurance against future repression, bring consolation to victims, and serve as an education in the rule of law.

Transitional justice and women

Regardless of political context, usually violence continues against women. Thus, they may not experience a transition to non-violence because of a cessation of formal hostilities.

If violations against women in armed conflict arise because of structural inequalities experienced during peacetime, then processes to address structural discrimination in society are required.

The post-conflict phase is often seen as an opportunity for women’s empowerment. However, the exact opposite may happen; a moment of opportunity in transitional societies can become what they term a moment of retrenchment.

Transitional justice and reconciliation

For societies like Sri Lanka, the reconciliation of its people is a necessary and essential condition.

Proponents recommending the implementation of transitional justice policies assert that natural and fundamental justice require individuals be held accountable for the worst violations of universal human rights such as genocide, war crimes and crimes against humanity.

Opponents of this policy argue that digging up the past and identifying perpetrators could sharpen societal divisions or provoke backlash leading to renewed conflict.

It is necessary to examine the conditions under which transitional justice can contribute to improving human rights and enhancing rule of law systems, or what sequencing or judicious combination of transitional justice mechanisms can help build democracy and resolve conflicts.

Efforts to promote transitional justice should not be abandoned because of the lack and contractiveness of the empirical findings.

Process of reconciliation

Martin Luther King Jr. differentiated between those who prefer a negative peace, which is the absence of tension to a positive peace, which is the presence of justice.[1] Transitional justice in a post-conflict state represents not just the alleviation of tension but also the positive presence of justice. An imposed peace that is bereft of genuine opportunities for peace is likely to be of little lasting value. Without genuine reconciliation, a society will be left with the same hatreds, fears, and anxieties that gave rise to the conflict in the first place,[2] exacerbating the possibility that conflict will again break out.

Reconciliation is a two way process. It is a process involving confession and apology on the one hand, and commitment and absolution on the other.

For the reconciliation process to work, the willingness of the conflicted parties to voluntarily admit to one another their responsibility for and guilt in inflicting death, injury and destruction on other parties, is essential. They will genuinely regret this and repent for all grievances committed. They will apologise for their role in inflicting death, harm, injury and destruction. They will release the anger and hostility the conflict had caused.

Those who offended will genuinely be obliged not to repeat what they did to harm other parties.[3]

Parties to the conflict will obviously attribute guilt and responsibility to its adversaries for the violence and harm inflicted, but at the same time, they will need also be self-critical and earnestly acknowledge their own role in causing or perpetrating violence and harm towards their adversaries.

They should also make sincere efforts to redress historic or past grievances that precipitated the conflict in the first place. The victims should be compensated for the harm done to them.

All parties should be honestly committed to develop and foster new, mutually beneficial relationships.[4]

The United Nations role

The Preamble of the United Nations Charter reinforces and elaborates on the ways and means the institution can contribute to post-conflict national efforts at reconciliation. [5]

People have inalienable rights because they are human beings and these rights should be respected under international law. Tremendous personal devastation and the incredible human costs caused during the Holocaust led to the assertion that people must be treated fairly and equally, regardless of their gender, race, colour, ethnicity, age, religion or personal beliefs.

Resolution 61/17.2 of the United Nations General Assembly signifies its determination to pursue reconciliation processes in societies affected or separated by conflicts, believing that such processes are crucial for establishing a renewed commitment to lasting peace in the aftermath of civil strife.

No country in the world qualifies more for such a process than Sri Lanka.

Therefore, it is important for all stakeholders to look at the activities that would transform the not so stable peace Sri Lanka has achieved after the military defeat of the LTTE in May 2009, into a durable end to the conflict itself.

Situation in Sri Lanka

Serious and credible allegations have been raised that Sri Lankan armed forces, their paramilitaries and the LTTE violated international humanitarian law during the last phase of the war.

The government of Sri Lanka has rejected these allegations arguing that there were no civilian deaths during the conflict, and those who had been killed were militants in civilian clothes. Pro-LTTE groups also have not admitted to the alleged war crimes committed by the LTTE.

The ghastly frames of indescribable executions and abuse shown by Channel 4 videos including Sri Lanka’s Killing Fields have opened up a Pandora’s box in Sri Lanka and overseas.

A wide range of diverse views have been expressed in response to the Channel 4 videos: that public showing of such alleged atrocities can be harmful to the reconciliation process in the island; that Channel 4 should have also shown the crimes committed by the LTTE on an equal footing of importance; and that detail of several frames pose doubts about the accuracy of these videos. The debate was more centred on atrocity based analysis of the last phase of the war, rather than focusing on restorative justice aspects of reconciliation.

At present, there are significant limitations to the delivery of justice, equity and fairness through the Sri Lankan judiciary system.

The Prevention of Terrorism Act (PTA), the Public Security Ordinance (PSO), and Emergency Regulations have often been used to override the Constitution[6].

Article 155 of the constitution allows President to enact emergency regulations under the PSO or any other law relating to public security. The abuse of these arbitrary powers can be attested by the reports made by diverse international and national agencies on the political and extra-judicial killings by organs of the state.

There is no separation of power between the Executive and the Legislature.

A Select Committee of Parliament can reverse a judgement by the courts. Such practice is unconstitutional and detrimental to judicial independence, is derogatory to the dignity of judges, and makes them subservient to the Legislature.[7]

The Attorney General is not accountable for his decisions either to the Parliament or to the Minister of Justice.[8] There is no legal or political remedy against the decisions of the Attorney General.

Many commissions have been appointed to investigate incidents of race violence, killing of media personnel, members of Parliament and many political opponents. However, given the powers of the state, it is not surprising that either the findings have not been made public, or the investigations did not progress due to the interference of state actors.

Such a denial of justice is a collective failure of democracy and its institutions.

It has been one of the major obstacles to achieving peace and national reconciliation.

Security considerations and military operations were given the highest priority curtailing individual and group rights of all peoples in Sri Lanka.

As time went by, social exclusion became the living experience of communities, shutting them out of the socio-economic, political and cultural systems of the mainstream society.

The Lessons Learnt and Reconciliation Commission (the LLRC) in Sri Lanka was established by the same government that allegedly committed crimes against humanity.

The policy calculus that ensures discrimination and social exclusion remains.

Its efficacy as a truth seeking mechanism is questionable, because the mandate of the LLRC is limited in scope; its establishment after the international scrutiny was focused on allegations of war crimes committed by Sri Lankan forces and rebels; its lack of sufficient independence; its rejection of the assistance of professional international experts; its ill-equipped nature to investigate the alleged war crimes; and the generally expected government interference in its proceedings.

So, one cannot expect the LLRC to follow the success of the South African Commission at creating the conditions necessary for reconciliation.

This view is reinforced not only by the nil outcomes that have held nobody accountable for the crimes investigated by similar probes and commissions before, but also by the cycle of impunity that continues to prevail in the island even two years after the end of the armed conflict.

Since 1948, we have witnessed the ripple effects of neo-colonial economic policies in the erosion of freedom of expression, human and political rights and the rise of bribery and corruption. Since the 1970s, younger generations of Sinhalese and Tamils who came from very similar socio-economic backgrounds revolted against the erosions of their rights. No Governments regardless of its political hue, recognised the underlying socio-political, economic and psychological causes of these revolts, i.e., discrimination, social exclusion and lack of opportunities.The measures the government had adopted did not seem to include a policy calculus that genuinely desired addressing the issues that led to the ongoing conflict.

The state’s response of increasing repression pushed both Sinhala and Tamil youth to revolt. The more repressive the state apparatus became the more our youth rebelled. Social exclusion brought about alienation of communities and resulted in military conflicts in both the south and the north.

Therefore, issues of reconciliation cannot be separated from the socio-economic, political and cultural broader issue prevailing in the island. Common ground between diverse interest groups needs to be established, while seeking ways to improve the process of negotiation between representatives of diverse communities and the government.

Once an earnest communication and consultation process begins engaging the people, the march towards reconciliation can gain momentum. A large peoples’ movement for reconciliation needs to emerge and embed itself in the Sri Lankan society. Symbolical expressions of their commitment to overcome the divide between our peoples will become paramount.

Therefore, a conflict resolution paradigm is vital so that the issues that led to the conflict can be resolved and antagonisms, hatreds and biases can be changed from negative, destructive forces into positive, constructive attitudes.[9]

Communication and consultation within and among our people will help foster an ongoing national and diasporic commitment to reconciliation, to address disadvantages and differences that led to the disastrous events that prevailed in our history.

Reconciliation will only become a reality when the majority of Sri Lankans support this idea. This is where facilitating public debate and discussion is an essential task. Such an exercise needs the leadership and commitment of the President, the government, the opposition and other relevant stakeholders.

The government and parliament need to recognize in its basic law that the island was settled by a diversity of communities with Sinhalese as the major community and that the political, legal, cultural and economic position of all its inhabitants, not just the majority, will be protected.

Parliament needs to enact legislation to put in place a process, which will unite all residents that would ensure problematic issues of reconciliation can be resolved with care.

Human rights

In 1994, Sri Lanka became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The convention explicitly states that there are:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

However, torture and summary executions were extensively used as a method of obtaining information and intimidating the general population. Since the 1980s, under emergency regulations, torture was and is often inflicted at undisclosed detention centres, the local Guantanamo camps of Sri Lanka.

There has been no progress in obtaining justice for past human rights abuses although the identities of many perpetrators are known. Of the 30,000 disappearances identified by commissions, only a few cases have been prosecuted. The reason provided was that there was no evidence. The reason for the lack of evidence was that no proper investigations were conducted, a perfect Catch 22 scenario. The system of prosecution is set up and controlled by the ruling political elite for safeguarding their interests and privileges. The results would have been better if there were an independent prosecution system.

The result of this is that the social structure and moral fabric at all levels of society have experienced irreparable damage. Fear and insecurity pervade all segments of the population, as torture, rape and murder have become customary weapons both in war and peace times. The violence has expanded to unarmed civilians as shown by recent incidents.

Accountability

The search for justice through reconciliation involves adoption of mechanisms to impose accountability for crimes and abuses that occurred during conflict, and development of an effective and fair legal system that promotes the rule of law that requires at a minimum, functioning law enforcement systems, courts, and corrections institutions.[10]

Accountability procedures can contribute to attaining and preserving peace in various ways by delineating between past events and present circumstances and indicating the founding of a new societal order.

The inability to provide the means for accountability undercuts faith in the rule of law.

… the potential benefits of ensuring accountability must be gauged against the likelihood that resort to some accountability device might disturb or undercut progress toward a durable peace, at least in the short run.    … the measures a government takes to protect human rights and punish perpetrators of grave human rights abuses – such as genocide, crimes against humanity, and war crimes – are likely to have effects on the social order within that state which, in turn, affects the prospects for peace there.[11]

Conclusion

In summary, the current situation in Sri Lanka reflects the lowest ebb in terms of relationship among its diverse peoples. The end of the war did not provide the means to achieve peace, rather it provides a new set of opportunities that can be grasped or thrown away.

Each society needs to decide for itself how to absolve perpetrators of death and violence and reconcile their victims with former adversaries. Even though reconciliation involves people talking to and understanding each other, it is still very difficult to achieve. Without a dedicated and genuine commitment by government and its stakeholders and proper mechanisms and structures, a process of reconciliation can hardly move forward.

Resorting to legal ways and means of reconciliation offers the possibility of healing that society, but only if participants in that reconciliation process are genuine, sincere and dedicated to preserving peace and political stability in that society. Through reconciliation, understanding takes primacy over vengeance, reparation has primacy over retaliation, and the human spirit has primacy over retribution. To defuse accumulated hatreds, amnesty might be granted to persons who make full public revelations regarding their politically motivated acts. However, amnesty should be a tool to defuse tensions, not to provide impunity for assassins who perpetrate genocide or commit widespread crimes against humanity.

For us it is an essential component in building a united Sri Lanka. Small policy steps, at least one-step at a time, taken towards achieving this vision, will help to bring closer to reality, the dream of our peoples of a peaceful, equitable and prosperous island.

Thank you for your kind attention.