By Gehan Gunatilleke –
Gehan Gunatilleke
Impatience is a luxury victims of state violence can ill afford. The state is often the victor; and victors hold the pen. They write the story. They define it for posterity.
In 2015, Miriam Gebhardt did the unthinkable. Her book, When the Soldiers Came, claimed that American soldiers raped thousands of women during the Allied occupation of Germany following the Second World War. The claim was largely based on records meticulously kept by Bavarian priests. What is extraordinary about the claim is not its contents but its timing. Gebhardt’s book was published seven decades after these atrocities allegedly took place.
Despite the overwhelming odds, some stories can eventually be told. In that belief, victims celebrating the recent adoption of the UN Human Rights Council (UNHRC) resolution on Sri Lanka must prepare for a long and perilous journey. Their struggle is not against some lone perpetrator. It is against a state that has monopolised the telling of their story; a recurrent version defined by compassion for a privileged few and brutal finality for the unfortunate rest.
The forgiveness trap
After the war, the Sri Lankan state constructed a narrative that trapped victims within its walls. ‘We defeated terrorism; we must be grateful to our war heroes; we must forget the bloodshed and move on. ’What held this narrative together was the idea that the ‘Sri Lankan’ version of transitional justice was based on ‘maithri’ and ‘karunā’—i.e. compassion.
It was the previous administration that first championed the idea. In 2011, former Attorney-General Mohan Peiris proposed that Sri Lanka’s religious teachings and cultural values produced a uniquely ‘Sri Lankan’ version of justice based on tolerance and compassion.[1] Sri Lankan victims were presented as subscribing to this model. A year earlier, former Foreign Affairs Minister, G.L. Peiris argued that the ‘Sri Lankan approach’ did not focus on punishment, but rather on what he defined as ‘restorative justice’.[2] In late 2013, former High Commissioner to the United Kingdom, Chris Nonis, reiterated these sentiments in a celebrated interview with CNN.[3]
The purpose of this narrative is simple. By reducing victims to creatures of compassion, it seeks to minimise the accountability of the state. The political inconvenience of investigating military crimes ultimately shapes the contours of the narrative. It is therefore designed to dispel calls for accountability by casting them as Western impositions of retribution on a society predisposed towards compassion.
The Sri Lankan state then co-authored the UNHRC resolution on Sri Lanka in September 2015. By doing so, it signalled a motivation to shift away from a reductive narrative. It is now committed to enacting new laws criminalising war crimes and crimes against humanity, and ensuring their retroactive application. It is equally committed to recognising command responsibility and establishing a credible justice mechanism with the participation of foreign judges, prosecutors, lawyers and investigators.
Yet the new government’s rhetoric of late has been strangely reminiscent of its predecessor’s. The Prime Minister recently announced the establishment of a ‘Compassionate Council’ as an adjunct to the proposed Commission for Truth, Justice, Reconciliation, and Non-Recurrence.[4] Champika Ranawaka earlier claimed that investigating the past would ‘rub salt on old wounds’.[5] Such terminology betrays a continuing agenda to reduce Sri Lanka’s search for truth and justice to a narrative of forgiving and forgetting.
The hangman in the mirror
There is an irony to the claim that Sri Lanka’s approach to justice has religious and cultural undertones of compassion. There is certainly no hint of compassion in our legal system. Our prisons are grotesquely overcrowded. According to a recent study by the University of Colombo, the current crisis in prisons may be due to judicial and executive inclinations towards punitive justice.[6]
Last month, the public reaction to the egregious violence inflicted upon a child bore all the hallmarks of righteous indignation. Social media was rife with calls for the swift reintroduction of the death penalty. Few paused to question the basis on which a seventeen-year old suspect was arrested. We later learn that he was tortured in custody. The mad scramble to arrest someone—anyone—and the populist political overtures on the need for the death penalty reflected one thing alone: a visceral public demand for retribution.
There is a serious contradiction between Sri Lanka’s so-called compassionate approach to transitional justice, and its ostensible approach to crimes in ordinary life. This contradiction extends to the public’s support for a war deemed necessary regardless of the human cost. Why are victims of state violence expected to forgive and forget while the rest of society bays for blood? The answer perhaps lies in the realm of political expedience. The state’s aim to prejudge a narrative is ultimately animated by majority will. When the majority objects to punishment, the state promotes compassion. When the majority calls for retribution, it inflicts violence with reckless abandon. For victims, these broad and careless brushstrokes only serve to whitewash their stories.
Let them write their story
Imagine a family around a dinner table grieving the premature loss of a loved one. Imagine that a drunken driver was at fault. Would we expect this family to cope in the identical manner? Would they uniformly seek to forgive the offender? Would they unanimously demand his punishment? Some disagreement around that table would hardly surprise us. If we can conceive of a single family producing such diverse views, should we then reduce Sri Lankan victims to a single narrative?
A quilt. A mosaic. This is what Sri Lankan truth and justice must look like. The most unlikely of stories begin to emerge when victims are given the pen. Take for instance, these words:
I want to find out what happened to my husband…the person who gave the order to abduct my husband must know more about what happened to him than the persons who abducted him. So I truly want to know who gave the order.[7]
These are not the words of a Tamil widow whose husband disappeared during the war. They are of a Sinhalese Buddhist woman from a remote town in Kandy. The military abducted her husband more than 28 years ago during the Southern insurrection. When the inquiry is without prejudice, we learn that the enormity of human loss can never be reduced to a single narrative. In grief, there are no Sinhalese, Buddhists, Tamils, Hindus, Christians or Muslims. There are only human beings. Some want truth. Some want justice. Some may wish to move on. But the choice is theirs alone. It is not a matter for the majority to decide; it is not a story for the state to write.
The UN resolution has presented this country with a rare moment. As we prepare to reckon with our past, we must let victims lead the quest for a common narrative. We must recognise the trauma and complicity we bear together as one society. It is only by confronting truth and submitting to justice that we can attain our collective atonement. Should we fail to seize this moment, bear in mind that truth and justice will inevitably triumph—if not here in Sri Lanka, then perhaps one day in The Hague. Rest assured, as long as victims survive to be witnesses—as long as some records are meticulously kept—their stories will be told.
* Gehan Gunatilleke is a lawyer and researcher based in Colombo. He is the author of Confronting the Complexity of Loss: Perspectives on Truth, Memory and Justice in Sri Lanka (Law & Society Trust: 2015)
[1] Mohan Peiris, ‘Sri Lanka’s Approach: Restorative Justice vs. Retributive Justice’, 24 November 2011, at http://www.kadirgamarinstitute.lk/events/video.htm.
[2] Speech by Prof. G.L. Peiris at the 9th IISS Asia Security Summit, The Shangri-La Dialogue, Singapore on 6 June 2010, at http://www.mea.gov.lk/index.php/en/media/ministers-speeches?start=15.
[3] ‘CNN interview with H.E. Dr. Chris Nonis, Sri Lankan High Commissioner to the United Kingdom’, November 2013, at https://www.youtube.com/watch?v=qUwQBm2hMM4.
[4] ‘What Ranil didn’t say’, Ceylon Today, 29 September 2015, at http://www.ceylontoday.lk/52-105139-news-detail-what-ranil-didnt-say.html.
[5] Patali Champika Ranawaka, ‘From Puthumathalan to Geneva…’, Daily Mirror, 24 September 2015, at http://www.dailymirror.lk/88597/from-puthumathalan-to-geneva.
[6] Centre for the Study of Human Rights (University of Colombo), A Study on Streamlining Rehabilitation Programmes in Prisons (2013).
[7] Gehan Gunatilleke, Confronting the Complexity of Loss: Perspectives on Truth, Memory and Justice in Sri Lanka, Law & Society Trust (2015), at 52.
EDWIN RODRIGO / October 13, 2015
I like this article. It answers many questions that I had about the so called Sinhala (or to be more correct the Buddhist Sinhala) mentality. Recently pantry had a serious infestation of black ants and I was using boiling water to kill them. A typical Sinhala Buddhist was watching this and was aghast about my cruelty and the Akusala I was collecting. On the next day we were discussing the last days of war and when I mentioned that the Tamil victims (if any) were fellow citizens of our country this same person said they were Tamil terrorists and it is a good thing they were killed.
That happens to be the mentality of the majority of Sinhala Buddhists. They are unable to put themselves in the other person’s position and imagine his/her suffering.
There has to be something seriously wrong with our mentality if we consider ant victims to be more important than Tamil victims.
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Thiru / October 13, 2015
EDWIN RODRIGO,
That is what Mahavamsa has taught them in childhood.
How many Tamils did Dudagemunu kill? Not many, one or two humans only!
Religions are imposed by their parents without the children exercising their free will, so is Mahavamsa dinned into Sinhala Buddhist kids.
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paul / October 14, 2015
Thiru you imbecile, Christians believe in the Old Testament but they don’t practise all the brutality. It is the same with the Mahavamsa. Try and do something about all that hatred you carry in your heart.
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Dr.Goebells / October 13, 2015
Mr. Rodrigo
You must be one heck of a sadist to be able to pour boiling water on poor black ants . Thought of applying for the hangman’s job Edwin ?
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EDWIN RODRIGO / October 13, 2015
Death by boiling water is quick for the ants. Since Sri Lanka uses mostly hydro electricity these days, the CO2 footprint of the pot of boiling water is very low right now. ?
I experimented and found out that there is no need to wait till it boils. Around 50 C is quite effective. May be the ant lovers would not be so mad at me now.
What do they prefer? Pesticides?
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paul / October 15, 2015
Pity the LTTE did not boil you in oil…50 C would have been enough!
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Edwin Rodrigo / October 14, 2015
I hope that like the real Goebells, you are only spreading false propaganda and not considering ant victims to be more important than Tamil victims.
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EDWIN RODRIGO / October 14, 2015
Oh Yeah! The most humane way – The gas chamber as you and your boss believed.
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paul / October 15, 2015
It must be Edwin’s religious upbringing, I reckon Dr. Goebells. It must have taught him that Ants are given to this world – and taken away at givers fancy – for Edwin Rodrigo and his clans pleasure…
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Sriyani Mangalika / October 13, 2015
We should bend where real justice is offered to us no matter location or origin and we have strong requirement of Right and Just made available equitably far more than beautiful words or popular decisions. No nmatter from a foreign country so far above conditions are fulfilled.
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Navin / October 13, 2015
Thank you Gehan Gunatilleke. Your Article is a reminder that we are human beings, that our ideals and actions should be wrought from our humanity.
Your Article is also a clear indictment of those practicing the Political Profession in Sri Lanka – they are but mercenaries to their personal enrichment – hardly any exceptional politician can be identified during the last 11 years.
Shame on us all for supporting our politicians without question.
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M.Yoga / October 13, 2015
Greetings Gehan Gunatilleke.
This article opens our minds about our mental and legal system, as well as implementation.
We are immune to the way of thinking and reacting according to the same way we have been doing all these years.
Gehan Gunatilleke article gives hope to us that Sri Lanka has got good lawyers and people wanting to ask questions and improve our governing and administrative system.
Wish you all the best in your career Gehan Gunatilleke,
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Govi / October 13, 2015
Gehan
You look very young but your thoughts, values and wisdom are of very high level. Appreciate the human inside you.
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Punitham / October 13, 2015
Do.
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Sengodan. M / October 13, 2015
Very good article.
The government leaders speak of confession to be on the defensive. But where has all that compassion gone in the case of over 300 Tamil prisoners held in captivity for several years without any shred of evidence against them?
Does compassion also arise selectively?
Sengodan. M
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pacs / October 13, 2015
Sensibly and logically presented writing let those who has ears hear.
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old codger / October 13, 2015
Great thoughts from one so young. So articulate and to the point.
I find it difficult to believe Gihan was educated in Sri Lanka, because he does not suffer from Mahavamsa indoctrination.
Keep it up!
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Emil van der Poorten / October 14, 2015
Gehan Gunatilleke:
Thank you for that lucid and eloquent statement.
However, as one who has always been in opposition to the death penalty for any offence, recent Sri Lankan history has compelled me to re-think that stance. I have gone on record as supporting capital punishment for “crimes against the people” such as have been committed recently because the results of the behaviour of the government we have only recently rid ourselves of (?) have resulted in DEATH and untold misery for significant numbers of our population. While they might not have had gas chambers at their disposal, they were not far behind in what their behaviour has amounted to: check any so-called teaching hospital for the more dramatic examples of this kind of thing.
“Telling their stories” is only a beginning, even though a most valid one.
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Peace / October 14, 2015
Gehan Goonatilake.
Thank you for the humanist you are.
(American Humanist Association
americanhumanist.org/
American Humanist Association
A Humanist Alternative to Religious Confirmation. The prospects of secular humanists who hold to positive, progressive, nontheistic worldviews are on the rise as the idea of being good without a god becomes more accepted and the numbers of nonreligious Americans increase.)
At last some one with a level head above his shoulder has written what the collective wisdom of all the religions put together couldn’t come up with in mother Lanka.
Hope this is the beginning, many more level headed people would guide the Srilankan populace, we need a whole stock of them on all sides of ethnic and religious divide.
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Spring Koha / October 14, 2015
Thank You Mr Gunatilleke for an excellent article, one that I can say I learned from.
More ink to your pen.
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Vibhushana / October 14, 2015
South Africa process did not have a punitive component. Did they try to “minimise the accountability” there too?
At a certain point the Accountability mechanism itself becomes more costly than the deemed benefits.
There are cost factors when you consider the depth and the breadth of injustices spanning 3 decades involving at least 2 state actors and 2 non-state actors.
Parroting a formula that is clearly aimed at a political aim the purveyors of Accountability has trimmed the conflict so it becomes “affordable”. They have tailored it such that it leaves out crucial elements that are responsible for the injustices.
Apparently the conflict started at 2002 and ended in 2014. This is not accountability. Either take to account the entire period or follow South African experience and leave out punitive justice.
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frank / October 14, 2015
WEdhushana, please learn to shut up.
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kali / October 14, 2015
Gehan Gunatilleke
Compassion For A Few, Gallows For The Rest:
*** I was thinking of giving you a Thumbs Up but the events in the last three days have taught me a lesson and that is when it comes to Justice for Tamil Victims NEVER TRUST A SINHALESE.
We have had many Story tellers and Thriller writers who write for the sake of writing and we were presented with one such Ghost Writer in the name of Dr.Fernando. What he revealed sent Shock Waves trough the minds of Tamils especiallaly Victims that under a Sri Lankan justice system they will never get justice.
So I take your Narative with a Pinch of Salt.
Murder , Rape , Intimidation was a Powerful weapon used by the Majority to deny the Tamils their Legitimate rights.It was alll about empowerment and Colateral damage. Justified in the name of Sinhalse Humanity.
We were yesterday given a History lesson that the Tamils rejected every attempt to find a Negtiated Settlement and LTTE was a Terrorist Organisation and the Sinhalese Atricities was all an Imagination by the Tamils.
So there you have it in a Nut Shell as to why the Tamils were killed , Maimed , Raped and intimidated going as far back as 1958.
1) The forgiveness trap
After the war, the Sri Lankan state constructed a narrative that trapped victims within its walls. ‘We defeated terrorism; we must be grateful to our war heroes; we must forget the bloodshed and move on.’ What held this narrative together was the idea that the ‘Sri Lankan’ version of transitional justice was based on ‘maithri’—i.e. compassion.
*** I think you are trying to muddy the water.
Forgiveness Trap.
The majority were not asking for Forgiveness and even if it is true who were they asking it from. Surely not from the Victims.
It was a Victory March and reasons for Justications.
You only ask for Forgiveness if you admit you made a mistake. Even the so called Liberal Dr.Fernando doesnt think it was a mistake.
2) The purpose of this narrative is simple. By reducing victims to creatures of compassion, it seeks to minimise the accountability of the state. The political inconvenience of investigating military crimes ultimately shapes the contours of the narrative. It is therefore designed to dispel calls for accountability by casting them as Western impositions of retribution on a society predisposed towards compassion.
*** I remeber a Lady called Cathy Noble was used to present to the World the Compassion you are a talking about and I remember many other famous ladies. The victims were reduced to Rubble often spat at Ridiculed and not shown any Compassion.
3) The Sri Lankan state then co-authored the UNHRC resolution on Sri Lanka in September 2015. By doing so, it signalled a motivation to shift away from a reductive narrative. It is now committed to enacting new laws criminalising war crimes and crimes against humanity, and ensuring their retroactive application. It is equally committed to recognising command responsibility and establishing a credible justice mechanism with the participation of foreign judges, prosecutors, lawyers and investigators.
*** These are early days and I will not trust any Sinhalese MS or RW.
4) Yet the new government’s rhetoric of late has been strangely reminiscent of its predecessor’s.
*** I agree entirely.
5) There is an irony to the claim that Sri Lanka’s approach to justice has religious and cultural undertones of compassion. There is certainly no hint of compassion in our legal system.
*** You have missed out one important consideration. The ETHNIC dimension” ie If you are Tamil you must be Guilty because you ask for too much.
6) These are not the words of a Tamil widow whose husband disappeared during the war. They are of a Sinhalese Buddhist woman from a remote town in Kandy. The military abducted her husband more than 28 years ago during the Southern insurrection. When the inquiry is without prejudice, we learn that the enormity of human loss can never be reduced to a single narrative. In grief, there are no Sinhalese, Buddhists, Tamils, Hindus, Christians or Muslims. There are only human beings. Some want truth. Some want justice. Some may wish to move on. But the choice is theirs alone. It is not a matter for the majority to decide; it is not a story for the state to write.
*** I sympathesize with the Sinhalese widows but there is a difference.
The Sinhalese Insurgency wanted to change a system ( Marxist Ideology) ie overthrow an elected Government.
The Tamil Insurgency was a fight for Survial.
7) The UN resolution has presented this country with a rare moment. As we prepare to reckon with our past, we must let victims lead the quest for a common narrative. We must recognise the trauma and complicity we bear together as one society. It is only by confronting truth and submitting to justice that we can attain our collective atonement. Should we fail to seize this moment, bear in mind that truth and justice will inevitably triumph—if not here in Sri Lanka, then perhaps one day in The Hague. Rest assured, as long as victims survive to be witnesses—as long as some records are meticulously kept—their stories will be told.
*** I agree we will get to the Promised Land but it is going to be a Hard Slog.
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Dr. S. Mahadeva Vet. / October 14, 2015
A splendid Article by reminding the religious values to the practice of law enforcement and the timing of it,
“After the war, the Sri Lankan state constructed a narrative that trapped victims within its walls. ‘We defeated terrorism; we must be grateful to our war heroes; we must forget the bloodshed and move on.’ What held this narrative together was the idea that the ‘Sri Lankan’ version of transitional justice was based on ‘maithri’—i.e. compassion.”
Narrowing the Narration would lead to the faulty foundation for a Nation Building again that is what the author has emphasized ()
Narrowing the Narration-: All the supporters against an impartial inquiry in order to establish an truly professional Defense System for Sri Lanka (here I have refrained from saying impartial inquiry against the security forces for alleged war crimes) are now questioning why it has been limited to only last stages of war. Actually when LLRC was established it is Responsible Government of Sri Lanka (RGOSL) emphasized on the last stages war only from 2006 to 2009, and I wrote to Head of RGOSL, that LLRC will not achieve anything substantially if that time frame so limited, and I accentuated the need of inquiring into the Genesis of the war itself, RGOSL did response only by extending the time frame 2002 to 2012. Now the same people are demanding it should begin from May 14 1976. I strongly urge that the truth finding should begin from 1948, all the violence since independence of the Nation.
Faulty Foundation-: Nation Building involves minds sensitive to dignity of all and each group of people. It cannot be done by fictional believes or strict religious roaring against others than the own and imaginary notions about nativity, but by scientific approach and compassion only. The author says compassionate for individuals and rigid approach for social matters in delivering justice.
Nation Building-: Prejudiced Narrowing the Narration for falsifying the foundation with an Agenda, and that is what had happened to this nation
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Dr. S. Mahadeva Vet. / October 14, 2015
Adding to above, comment,
Still Chairman of the Lesson Learnt and Reconciliation The Late R.De.Silva Esq invited me to present all what I had prepared on person and did present all that happened from 1948 to 2009 that is the way it should happen in the future as well otherwise truth finding mission would not take anywhere stay put in ZERO and face the consequences of it!
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Charlie Ludowyke / October 14, 2015
Gehan Gunathilake has opened an important subject. That is what can happen during a war and how must that be prevented. He also brings out another matter, what is the right time to make an allegation.
While Germany was under occupation of both the allied and the soviets, clearly it was dictatorial military rule. The Western Press blamed all the atrocities to Soviets and the now dead communism. Germans, perhaps very wisely, did not want to raise those matters until now they are a power to reckon with. Unlike the French who wants French everything, they quietly built their economy, united their divided country and now they are seeking a strong national identity. Leave alone US soldiers, I am not the least surprised if allegations spring up that even UK soldiers did the same, etc. But the inner sanctum of the Western Democracies based in US have sharp eye on Germany even bugging Angela Merkel’s phone.
Gehan wishes to portray that the Jarapassa regime sought to white wash the sexual-predatory practices of the Sri Lankan Army by trumpeting patriotism, Buddhist culture of Karuna etc. as any army has those tendencies. He might rightly say that the UN resolution also calls on the investigation of similar sadistic tendencies of the LITE. Good! what is the practical reality? Through a hocus-pocus catch jarapassa and his cohorts for War crimes using retroactive legislation like in the case of Sepala Ekanayake, (Sumanthiran Formula). Catch the LTTE’s who subsequently defected or broke away from the LTTE for all kinds of crimes. Make the dead Velupillai Prabhakaran the victim and hero.
Let us take a balanced view. It is Ranil Wickramasinghe, in the morning before he swore as PM befor Prez Sirisena, accorded the honour to Jarapassa as the person who ended the 30 year war in the Televised broadcast, appealing for calm and restraint on the part of the citizens and not take the law into the hands. In the secret list of war criminals even Prez Sirisena’s name is there and how come that the man who paid a major role, Field Marshall Sarath Fonseka, (doubbly credited, first by jarapassa elevating as a 4 star general along with his colleagues in other services and secondly by Sirisena making him a 5 start general) is not listed as a war criminal? Now all this is akin to our own Police investigation of the crime involving the young child “Seya” and the Police extracting confessions of every blessed suspect it arrests in the wake of allegations of torture and the DNA test contradicting the confessions.
What must clearly be understood by many is unfortunately the might is always right but temporarily. Afterwards the truth may be established and in the process another couple of injustices may take place, like in the case of “Seya” murder and abuse case. What must we do to the perpetrator? HANG HIM AFTER HANGING A FEW INNOCENTS?
What is unpalatable truth to most of the viewers of these columns is that by hook or by crook that the 30 year war was ended sparing us from bomb scares. That is an incontrovertible fact. What is yet to be established in a proper tribunal are the crimes against humanity to whom many can be guilty, including the one’s that the UN wishes to shield. We all know that Western Powers shielded the Japanese Royalty from War Crimes and made Tojo to tell a story at the trial and mind you there were quite a lot of foreign experts in that hybrid tribunal.
My only appeal to the readers of this column is that don’t be swayed by certain ideological preferences but look for the future. Let there be no black July 1983 in this country and a subsequent protracted war again. Promote harmony and peace among all communities. UN or any other outsider cannot be a lover of this country for they too have their own agenda. A united prosperous Sri Lanka clearly is not in the interest of outsiders. I am not echoing words of Mohan Peiris or a GL Peiris in other words. We have the own strength to punish criminals just as much as the High Court of Jaffna did recently in convicting military personnel. Earlier Sri Lanka did convict soldiers for the “Krishanthi Kumaraswamy” rape and murder case. In all these instances, there were no secret witnesses. Unfortunately what is done is not praised, but what is yet to be done is harped upon and that does not breed the desired unity and amity.
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Gune / October 14, 2015
A well written and timely article particularly for those people who drank out of the Rajapakse cup. Drunk with their concoction of nationalism brewed and adulterated with lies, hate and deception of the previous regime. If this article does not work as an antidote for their hangover then nothing will.
Gehan Gunatilleke, with few people like you Sri Lanka still has hope.
PS:
As a Tamil had I written such an article I would have been beaten out if this forum. Coming from a Sinhalese like Gehan it just gives so much credence to the belief that Sri Lanka has the potential to heal itself and move forward
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Tamil from the north / October 15, 2015
Every Rajapaksa related to this village clown MaRa should hang by their balls.
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Vibhushana / October 15, 2015
Hello “Frank”!
Its kind of stupid to make an alias from another alias.
It stupid because you were anonymous anyway!
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BBS Rep / October 15, 2015
Good thoughts Gehan. And great language also. Keep it up – Sri Lankans need to be educated, need to start thinking and need to understand the obfuscation of justice by politicians, by use of emotive words, pretty fast.
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Billa / October 16, 2015
Wonderful writing Mr Gehan Gunatilleke. The fact of balance headed Lankans still living among us makes me feel so good. We need more Gehans..God bless and Thank you so much.
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