23 October, 2020

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An Honest Reckoning Of A Tormented Past

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Those who murmured of ‘collateral damage’ and looked the other way when civilians were mowed down during the last days of the Wanni conflict in May 2009 certainly share a common callousness with those who shrugged their shoulders when previous governments of a different colour killed the ‘Southern terrorists’ of the Janatha Vimukthi Peramuna (JVP) with all the ruthlessness at its command, more than two and a half decades ago.

Decades of innocent blood spilt

In a large measure, these may even belong to the same social group, never mind the shocking imperviousness to innocent blood spilt and quite belying the inherently contradictory stances of professing themselves to be devout Buddhists.

Never mind also the cardinal principle that an elected government must be held to higher standards than a terrorist or insurgent group. The one overriding rationale is that even as barbaric and as bloody as the Sri Lankan State may be, it must be protected at all costs. So after decades of blood spilt of all ethnicities in this country, is it any wonder that this country still remains agonized? Without a honest reckoning of its tormented past, can there be any real peace for its people in the future?

For decades, this column had been emphasizing that the cry for justice in Sri Lanka is not exclusively limited to members of one ethnicity, however much lobbyists on one side of the ethnic divide may try to make out. This point was powerfully underscored by recent happenings regarding the chance discovery of 154 skeletons last year in the Matale District. As commented upon in these column spaces last month, there is a common element of impunity and a common cry for justice in respect of all these enforced disappearances of the past few decades. And it is that commonality that needs to be centered within the accountability debate concerning Sri Lanka, both within these shores and beyond, (see The Killing of Children and Sri Lanka’s Bloody Legacies, March 3rd 2013).

Undeniably unpalatable truths

This week, family members of those who disappeared (predominantly of Sinhala ethnicity), during the brutal state crackdown in that area, asked for justice from the government as forensic inquiries conclusively established evidence of brutal torture. Several skeletons had gruesome evidence of severed heads and limbs and in one instance, a skull had been sawn; in others, a wire had been used to give electric shock and hoops of thorns were discovered with skeletal remains.
Rightly, the JVP has dismissed the suggestion of a Presidential Commission of Inquiry with scorn and asked for a properly expedited judicial inquiry into the discovery of this crime scene, pointing out moreover that the Commanding Officer of the government troops in that area at that time was none other than the current Defence Secretary, the President’s brother. We are then confronted with the undeniably unpalatable truth that, at the very time that President Mahinda Rajapaksa was campaigning in Geneva as an enthusiastic opposition parliamentarian regarding the fate of the Sinhala ‘disappeared’, his own brother was in charge of a counter terror brigade that now stands accused of complicity in those very same horrific disappearances.

Applicable legal norms

Many years back. Wijesuriya and Another vs the State (77 NLR, 25) concerned one of the very first prosecutions of state agents for acts of degradation committed under the supposed authority of military law. In Wijesuriya’s Case, two army soldiers were prosecuted for the attempted murder of a suspected insurgent held in army custody after she had been arrested by the police. The accused claimed that the shooting occurred during combat where the first accused who first shot at her, was only carrying out the order of his superior officer to destroy (‘bump off’) the deceased.

The prosecution urged the court to hold that, whether there was a period of combat during the incident or a state of actual war, in either case, there could be no justification for the shooting of a prisoner who was held in custody. The Court of Criminal Appeal (the highest court at the time) agreed with this submission. It pointed out (unanimously) that no soldier could obey an order of his superior when such order is manifestly and obviously illegal and then plead mistake of fact in good faith. Provisions of international humanitarian law were referred to, in particular, the treatment of prisoners under the Geneva Conventions which had been ratified and accepted by Sri Lanka at that time.

The Court’s denunciation of terms such as “in combat”, “in the field”, “prisoners of war”, and “military necessity” which were sought to be used by counsel appearing for the accused to justify the brutal acts committed by them, was notable. It rejected the argument that when a state of emergency is called, the ordinary civil law of the land is pro tanto suspended, thus entitling the military to engage in whatever acts of brutality in pursuance or supposed pursuance under emergency powers conferred on them. The Court unanimously affirmed the convictions of the accused and by a majority, affirmed their sentences.

An era of abandonment of principles 

That was then. Now, we are in quite a different era which has disregarded those principles openly. Yet the point is also our own cynicism on these matters. So when the JVP asks for a credible inquiry, we resort instead to the nonchalant query as to what inquiry is possible for those killed by the JVP during that time?

Such cynics should be reminded yet again that the government’s blatant committing of atrocities needs to be treated quite differently to the barbarities committed by terror groups from the North, east or South as the case may be. When we abandon that crucial distinction, we abandon also the notion that Sri Lanka is a democratic country. Worse, we open ourselves to a dangerous obliteration of basic Rule of Law safeguards. In actual fact, it is precisely at this forsaken state that this country is in now, where even the façade of law and constitutionalism has been ripped away.

Further, to be perfectly clear, there is little point in raising alarm cries regarding the deterioration of ordinary law and order while being unforgivably blasé regarding extraordinary crimes committed during extraordinary times. If we proceed down this path of casually dismissing past atrocities with no need for retributive penal punishments or even genuine restorative justice akin to Truth Commissions in other countries, we must also by necessary implication not be outraged when our police remain militarized and politicized, with the personal security of an ordinary individual at risk at any point of the day. There is a visible nexus from one manner of abandonment of the Rule of Law to the other. One cannot separate the normal from the abnormal any longer.

Pitiably, we are at this stage of complete abandonment, four years following the end of conflict. We should look not only at our politicians but also at ourselves and ask the question ‘Why?”

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Latest comments

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    Kishali,

    If you lived in Sri Lanka when Rohana Wijeweera and his followers were killing innocent hardworking people and bringing the country to a standstill with their curfews, I wonder whether you accepted the steps taken by your relations to end this menace. If not, you might not be living to preach the Rules of War which have never succeeded in ending terrorism. That is why President Obama who came in to power to close down the Guantanamo prison for suspected terrorists is still continuing with it.

    It is highly unlikely that our forces would have eliminated the LTTE terrorists, if they fought strictly according to the rules of war developed before the birth of terrorism. There is a need to develop new rules to fight terrorism. You have the legal background to prepare such a framework to help the World to combat terrorism. However, the validity of such regulations should be restricted to use against terrorist organisations accepted by the UN at a General Assembly, to minimise abuse.

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      Truth,

      There is a big difference between the war that was fought in the early part of 2009 and notions of fighting an asymmetric war against unseen unknown terrorists. The war that was fought was very conventional in nature. Those are the types of wars that are sought to be regulated by international law. So the basic premise of your comment is flawed.

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    Resettlement, recovery and rehabilitation were the primary national objectives after the war. Reconciliation should have been a parallel second. Accountability a rather distant third. However, the demand for accountability that was orchestrated beginning a short period of shocked silence after the war, has poisoned the climate for reconciliation. The BBS phenomenon is the response of the government to the demands for accountability that placed it on the dock. Although it is dastardly, it should have been anticipated considering how we have been governed for a long time.

    Any government assumes a life of its own and has its self-preserving dynamics, though these dynamics are regulated by the constitution and the rule of law. These prevent a government becoming the state. In our country and several others like ours, the constitutions and rule of law do not constrain the government becoming the state. They are just ignored! In this country they are being ignored, stomped and subjugated.

    The president of this country could stand up and proclaim,” I AM THE STATE” and he would be right. He is the uncrowned King of the democratic, socialist republic of Sri Lanka, which is neither democratic, socialist nor a republic. He is the monarch of all he surveys. He is SrI Lanka. If we do not understand this fundamental transformation of our state, we will fail to put this country back on its feet.

    Dr Rajasingham Narendran

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      Dude the Lanka Spring began on April 12 with a vigil to protest the Rajapassa brothers’ Balu Sena in Colombo – the king will soon be DEAD – swept from power as the movement for regime change takes off —

      The Sinhalaya modayas have finally seen through the Rajapassa spin – the plan to Divide, distract(from regime corruption and crime with the Balu Sena) and rule Lanka !!!

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    The Southern movement was to overthrow the dictatorial capitalist system of govt stemming from the republican constitution. The Northen revolution too came about due to the same. Now we have an even more dictatorial and repressive form of govt in place but with the control and backing of the military and without judicial safeguards.

    Nothing has basically changed except that now the stakes are in Bns of dollars rather than millions of ruppees. The regime has also crushed legislature, the judiciary, the media and police and brought all within its control. So if there is another revolution it may be far more violent and with international ramifications.

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    [Edited out]

    Kishali, there are no rules for practicing Terrorism nor in War.
    Ask your parents whether switched off the lights at a given hour when the JVP ordered the general masses to do so??
    They probably survived as they would have done what was told.

    Sinhalaya Modayas.. then why ask the modayas for accountability that they do not know due to the very fact they are modayas.
    After the demise of the ltte Tamil mouth have become very active. otherwise, Prabakaran our Sun Goat, we worship you, praise you and give you thanks recited day and night and continue to sacrifice the Tamil youth & children to sing hosannas to the sun goat king from afar.
    These selfish tamils will never learn…………..

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    Sulaiman,

    LTTE marched 300,000 civilians to a thin strip of war, to use them as human shields. They forcibly recruited children to use them as cannon fodder, but not the son of Prabhakaran. They cited their big guns near hospitals to avoid retaliation. They shot and killed all those who tried to escape their prison island. They sent their cadres with human bomb belts among the civilians escaping from their prison island, to blast the Army personnel who were helping the elderly and the sick to cross the water.

    They were recognised as the worst terrorist group in the world and named as a banned terrorist organisation by most countries. Hence, the war fought in 2009 was an asymmetric operation to eliminate a terrorist organisation, including those with any potential for this terrorist organisation to regroup in few years time.

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    Truth prevails, well said truth ! What you have said are the facts the rest is just over dramatization and varying degrees of political correctness….all of which is rubbish.

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    [Edited out]there are many of these people who are coming out of the wood work now that there is neither the jvp or ther ltte to go out and kill them .

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