Image courtesy ICG Facebook page
The recently released report “Sri Lanka: Tamil Politics and the Quest for a Political Solution” by the International Crisis Group [ICG] is a timely contribution to the international community’s understanding of current Tamil politics, and reiterates a number of useful recommendations for all parties concerned. Its prescient analysis of the prevailing tensions within Tamil politics; its recounting of the failure on the part of the government to reciprocate the Tamil National Alliance’s reasonable demands; and its description of the military juggernaut unleashed in the North and East of the country point to the urgent nature of the problem at hand. Yet, the ICG sound caution where caution is due, urging Tamil leaders to speak directly to the Sinhala and Muslims people and find common cause with them. These are good, meaningful and sensible observations. Despite the unfortunate timing of the release, which coincided with the impeachment saga, the report will eagerly be read by Sri Lanka watchers.
While there is much to applaud in the report, it falls short in one crucial aspect. The report maintains an almost perfect silence on the demand of Tamil political parties in Sri Lanka – and the TNA in particular – for full accountability in respect of war crimes and crimes against humanity committed during the latter stages of the war, and the importance of an accountability process for the achievement of the constitutional and structural changes the ICG identifies as necessary. It therefore fails to pay any attention to a major challenge facing the TNA and Tamil civil society: how best to leverage international pressure on accountability without relegating the right to justice as an expendable commodity with which to barter a negotiated constitutional settlement? This is an important and complex question deserving serious academic and political thought, to which the ICG – with its global reach and access to comparative experiences – could have contributed innovatively.
I have observed elsewhere that the TNA has now emerged as a consistent and forceful advocate for full accountability in respect of the crimes committed during the last stages of the war. The alliance has made the demand for accountability both overseas and at home, campaigning heavily in the 2011 local authority election based on their support for an international investigation, and later interpreting their victory as a mandate for such an investigation. That they do so consistently despite the obvious risks is significant. The ICG report, however, does not trace these developments, and as a result, fails to convey the strength of the demand of Tamils [by this I mean Tamils in Sri Lanka] for accountability.
This is troublesome for a number of reasons, not least of which is that this unwitting silencing of Tamils on the question of accountability is counterproductive to the excellent work done by many – ICG included – to ensure a process of reckoning in respect of the crimes of the past. Any international campaign for the rights victims in Sri Lanka that is not visibly seen to be having the support of those on whose behalf the campaign is conducted is unlikely to be sustainable in the long term. While foreign governments may now be aware of the nature of the TNA’s demands, the same cannot be said of voters and pressure groups in foreign countries. By failing to recognize and highlight Sri Lankan Tamil demands for accountability, those pressing for accountability from outside Sri Lanka run the very real risk of lending credence to the claim that the accountability agenda is an imposition on Sri Lanka, and that even victims of alleged crimes in Sri Lanka do not desire it. To be clear, this silencing of the TNA and other Sri Lankan Tamil voices demanding accountability is a consistent failing of INGO’s and others. Very few if any of the multiple public debates, seminars, forums and panel discussions on Sri Lanka that have taken place in the West feature Sri Lankan Tamil politicians or activists, despite the obligatory presence of a Sri Lankan government voice beamed and sometimes flown in. The burden of carrying the pro-accountability argument is often left to INGO activists and diaspora activists, none of whom are unqualified to speak, but nevertheless lack the authenticity and moral authority that a Tamil representative from within the country would bring.
The failure to recognize the strength of the Tamil demand for accountability is also incongruous with international best practice. These practices now favour victim centered approaches and victim participation. It is for this reason that the International Criminal Court [ICC] and the hybrid Extraordinary Chambers of the Courts of Cambodia [ECCC] place victims’ interests at the heart of the judicial process, including by ensuring the right of victims’ lawyers to participate in proceedings, and ensuring some form of reparations through the criminal process itself.
In the final analysis though, what is most troubling about the ICG report is its overly limited conception of ‘political solution’, and the failure to visualize how an accountability process could complement steps to change the unitary structure of the state and devolve more power. While ‘political solution’ and ‘devolution’ have become synonymous over time, there are dangers in viewing a political solution based on power sharing as distinct from accountability for serious crimes. For one, this approach gives those opposed to accountability the room to portray accountability as mutually incompatible with national reconciliation. It also ignores the constructive role that an accountability process could potentially play in ushering in an agreement on power sharing. In this regard, the importance of truth telling cannot be overstated. As Mendeloff notes, truth telling encourages social healing and reconciliation, promotes justice, allows for the establishment of an official historical record, serves a public education function, aids institutional reform, helps promote democracy and preempts as well as deters future atrocities. In Payam Akhavan’s recasting of Theodor Meron’s defense of criminal trials for war criminals, “truth‐telling promotes interethnic reconciliation through the individualization of guilt in hate‐mongering leaders and by disabusing people of the myth that adversary ethnic groups bear collective responsibility for crimes.” Moreover, vetting and lustration practices common to most effective transitional justice [TJ] mechanisms help, for want of a better phrase, weed out those most likely to cause a return to violence. Further, a well-designed TJ process could in fact constitute “one of the first lessons for citizens in a newly‐democratic multination state in how to learn to live with the ambiguities of contested nationhood.”
For Tamil political parties and civil society groups then, the challenge is particularly delicate. While international pressure on accountability serves an instrumental purpose in mobilizing international opinion in respect of their rights, and while this pressure may eventually lead to a softening of the inflexible stance of the majoritarian state on issues of power sharing – bartering away the right to demand justice for power sharing in return is simply not acceptable, as a matter of strategy, normative theory, international law or Tamil electoral politics. Yet, history and experience tells us that perfect justice is never possible, and that some compromises on criminal justice are necessary to avoid deadlock and secure the path to reconciliation. In these circumstances, what then are the tools and strategies that Tamil politics must develop? How do Tamil political and civil society leaders build their capacity to make optimal decisions when the opportunities eventually appear?
Whatever the answers to these questions may be, they are not made more accessible by excluding Tamil victims and their representatives from global conversations on accountability, or by glossing over the contributions already made under trying circumstances.
 David Mendeloff, Truth‐telling and Postconflict Peacebuilding: Curb the Enthusiasm? 3
Int’l Studies Rev. 6, 355 (2004)
 Payam Akhavan, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on
the United Nations War Crimes Tribunal, 20 Human Rights Quarterly 737, 816(1998)
 Will Kymlicka, Transitional Justice, Federalism, and the Accommodation of Minority
Nationalism (Oxford Centre For The Study Of Inequality And Democracy, Working Paper No.