By Dinesh D. Dodamgoda –

Dinesh Dodamgoda

It was reported a few days ago that the Sri Lankan government has presented the mechanism of the domestic inquiry into alleged war crimes during the final phase of war in Sri Lanka to visiting US Assistant State Secretary for South and Central Asian Affairs Nisha Biswal.

On the other hand, UN Secretary-General Mr. Ban Ki-moon’s official website reported on the 21st of August that the Secretary-General called the Prime Minister of Sri Lanka, Mr. Ranil Wickremesinghe and encouraged the Prime Minister and the national unity government to ‘seize the opportunity’ to advance long-term peace for all Sri Lankans. Furthermore, the General-Secretary wished Mr. Wickremesinghe success in the important task that lay before him.

In addition to other issues, the UNF government now has two major post-war issues ‘laid before’ it that need to be addressed. The first issue is a credible Domestic Inquiry into alleged war crimes (Accountability issue) and the second issue is implementing a sustainable Reconciliation process (Reconciliation issue).

It is important to note that the Accountability issue has gained priority over the Reconciliation issue, especially in the media space and in the post-war agenda. Sometimes two issues are referred as a single issue, namely the issue of the Truth and Reconciliation, as it was spelled in the final draft of National Policy on Reconciliation, which was prepared by Professor Rajiva Wijesinha, Mr. Eran Wickramaratne, Mr. M.A.Sumanthiran, Mr. Javid Yusuf and Mr. Jeevan Thiagarajah.

The question is which issue is the most important issue? The Accountability issue or the Reconciliation issue? Can and should we address both issues simultaneously? I attempt to answer.

Post-war framework

During his visit to Sri Lanka in May 2009, the UN Secretary-General Mr. Ban Ki-moon raised three key issues and laid out a post-war framework for Sri Lanka. The key issues in the framework were human treatment and speedy resettlement of IDPs [Internally Displaced Persons], adoption of policies to achieve political reconciliation, and accountability for war-time atrocities.

Subsequently, in a communiqué (10COLOMBO50 / 2010-01-22) between US Ambassador in Colombo Ms. Patricia A. Butenis and the US Bureau of South and Central Asian Affairs in 2010, four key issues were mention in a framework to assess the progress in Sri Lanka: treatment of IDPs, human rights, political reconciliation, and accountability for alleged war crimes.

War-crime accountability

As the international discourse and actions progressed over the time on those key issues, the issue of war-crime accountability had started dominating the international political and media discourse, especially overt and covert approaches and actions taken by the Global Tamil Forum (GTF). Of course, US State Department report to the Congress in 2009 and the Crisis Group report in May 2010 on alleged incidents helped substantiating the GTF’s claims and furthermore, the former President Mr. Mahinda Rajapaksa’s visit to Oxford in late 2010 provided the international media space to the GTF to bring the discourse comfortably forward.

The GTF managed to convince the international players either through evidence or media programmes that they helped in producing that the war-crime accountability issue should be given international priority on the agenda over post-war Sri Lanka. The emphasis was made that the war-crime issue is the ‘Key’ to open doors for pushing SL government’s commitment over other key issues, human rights, IDPs and reconciliation.

As predicted by the US Ambassador Ms. Patricia A. Butenis in early 2010, the obvious response for this was to start a national and international counter-campaign by the Sri Lankan government accusing international actors and Tamil diaspora for conspiring against Sri Lanka and her war heroes. Interestingly, the prevailed situation had created another complex environment in post-war Sri Lanka and contributed to boiling up the level of patriotic quarters’ anger over international actors and Tamil Diaspora. The Sinhalese perceived international actors and the Tamil diaspora as conspirators who were behind this “international conspiracy”.

The key issue

Actions and reactions by the international players, the GTF, the Sri Lankan government and the media had created a context in which the accountability issue had become the key issue in the post-war Sri Lanka. As a result, the reconciliation issue had declined to a secondary issue and the Sri Lankan government was busy in finding mechanisms to overcome an international inquiry into alleged war-crimes. Unfortunately, the GOSL did not bother in initiating a process of human-reconciliation.

In my opinion, these complexities are due to weaknesses in the international conceptual framework on post-war Sri Lanka. The international conceptual framework, in fact, is a typical approach of traditional statist diplomacy, because it treated the task of “Reconciliation” as a peripheral substance of building peace and ignored the realities and dilemmas faced by the post-war Sri Lankan society.

Proposing the issue of ‘Reconciliation’ with the issue of ‘Accountability’ was a mistake when evaluating it against the post-war context in Sri Lanka. In fact, it generated counterproductive effects on initiating a process of sustainable reconciliation. Brining the war-crime accountability issue forward ignited the flare of patriotic anger over international actors and Tamil diaspora as the majority ‘patriots’ hail the military victory over LTTE and see contributors to the victory as ‘heroes’. I understand, my stance may irritate opinion holders with normative approaches to the proposed international framework that appreciate traditional statist diplomacy. However, my opinion is we need to understand the reality and dilemmas faced by the post-war Sri Lankan society.

I would like to note that these eventualities were correctly assessed in advance by the US Ambassador in Colombo Ms. Butenis in early 2010. Yet, it was not taken into serious consideration by any of the international actors. One of her communiqué stated: “There is an obvious split, however, between the Tamil diaspora and Tamils in Sri Lanka on how and when to address the [war-crime accountability] issue. While we understand the former would like to see the issue as an immediate top-priority issue, most Tamils in Sri Lanka appear to think it is both unrealistic and counter-productive to push the issue too aggressively now. While Tamil leaders are very vocal and committed to national reconciliation and creating a political system more equitable to all ethnic communities, they believe they themselves would be vulnerable to political or even physical attack if they raise the issue of accountability publically, and common Tamils appear focused on more immediate economic and social concerns.” Despite these predictions, the war-crime accountability issue was pushed aggressively forward by international actors and the Tamil diaspora and contributed to the development of the prevailing adverse context in terms of reconciliation.

Domestic inquiry

Despite the realities and dilemmas faced by the post-war Sri Lankan society, Law prohibits committing war crimes. All parties to war must adhere to ‘Just War’ principals and accepted ‘Rules of Engagements’. Some argues in their defence that ‘no crimes were committed’ during the last phase of war and some argues that ‘whatever atrocities committed were excusable’ because the nature of the enemy was equal or worse. In my opinion, both arguments are naïve and absurd.

As it was reported, a mechanism was handed over to the US State Department by the Sri Lankan foreign ministry to commence a domestic inquiry into alleged war crimes. However, the citizens of Sri Lanka still do not know the nature of the mechanism. It was pointed out by Mr. Alan Keenan, senior analyst and Sri Lankan project director of the International Crisis Group in one of his tweets. He asked, “But when will the government share it (proposed mechanism) with its own citizens? And maybe even get their input?”

However, a mechanism was suggested in the final draft of National Policy on Reconciliation and noted that ‘this should not be done in any spirit of retribution’. The proposed policy states,

‘It is vital that the Government recognises that many of those who engaged in acts of terrorism did so under compulsion, and whilst particular deeds may warrant investigation and judicial action, perpetrators should be treated with dignity and provided with an opportunity to reintegrate into society. Conversely, the Government must fulfil its responsibility to investigate security forces for alleged excesses that occurred during the war.’

It further suggests,

‘The following key responses must be undertaken in implementing this strategy: (A) Investigate, prosecute and punish wrongdoers including security forces implicated in deliberately targeted death or injury of civilians; (B) Ensure proper investigation into disappearance, including those that took place after surrender to the armed forces, and ensure that the perpetrators are brought to justice.’

The approach proposed in the final draft of National Policy on Reconciliation should have focused a bit more on the principle of equality. Can we adopt a ‘restorative justice’ model to the LTTE fighters and a ‘punitive justice’ model to government forces and to groups that supported the GOSL? In my opinion, an appropriate mechanism should adhere to principles of equality, natural justice and fair trial. Moreover, if a criminal justice model was adopted, not only the wrong doers who are directly responsible for those acts should be punished, people who are in the chain of command and people who are responsible for aiding and abetting those perpetrators are also should be punished. Otherwise, the justice will not be served in adopting a punitive justice model.

Is it appropriate?

There is no doubt, we can punish most of the perpetrators of war crimes, but we only need some changes to local criminal laws and procedures. As Ms. Kishali Pinto Jayawardene stated in her recent Sunday Times column, punishing the criminals ‘is the primary responsibility of the State after all’. However, is this the primary responsibility of the State in a post-war context?

It is not. The primary responsibility of the State in a post-war context is to break the cycle of hatred and mistrust that could pave the way for another bloody war. How do you do that? By adopting a process of sustainable reconciliation. In the Sri Lankan context where the society has been deeply polarised, you must approach issues carefully paying attention to social psychology. A small retribution has the potential to ignite the flare of violence.

It is important to note that there is at least a 42% of population that voted for former President Mr. Rajapaksa in the recently concluded election represents the ideology of Nationalism. In numbers, that counts to 4.7 million. What would they do if a domestic inquiry was initiated and punished ‘their war heroes’? Furthermore, would not it further polarise the society that would generate counterproductive effects in terms of reconciliation?

I can now hear my opponent’s argument. Aren’t we a law abiding Nation?

In my opinion, the issue that we have in front of us is more of a political issue than a legal issue. In fact, international community has a practice of giving priority to political aspect of an issue over legal aspect of an issue. For example, the growth of the United Nations membership, for example, elaborates this point. The increase of the membership from 151 in 1990 to 193 (except 2 observer states) at present has been essentially due, broadly speaking, to secession. As Dr. Karsten Frey (Institute Barcelona d`Estudis Internacionals [IBEI]) observes, `successful secessions are always, [in broader terms] enforced by creating political facts but not by meeting legal requirements`.

Therefore, we need to understand the context and the primary responsibility of the State and the international community including UN. Our primary responsibility is to break the cycle of hatred and mistrust that could pave the way for another bloody war, I repeat.

The key issue

The key issue in post-war Sri Lanka is “Reconciliation”, because without building a true, peaceful relationship between Sinhalese, Tamils, and Muslims etc., no other post-war issue will be satisfactorily addressed. Furthermore, the peace will not sustain.

Reconciliation is understood as a process of relationship building, which takes time, especially if a society is deeply divided like it is in Sri Lanka. The country needs at least five more years, as well as a comprehensive, integrative, strategic approach to transform this deeply wounded and divided post-war society into a healed and a united one.

My proposition is “reconciliation” should be the main issue for a quite some time in a better conceptual framework for post-war Sri Lanka. Other issues should accompany “reconciliation” in a supportive, yet non-disruptive manner.

However, my proposition also poses a question. Whether we should address the ‘war crime accountability” issue using a punitive model? As evident, the war crime accountability issue, in fact, will be incompatible and maybe even destroy the reconciliation process. I am aware, this is a very controversial proposition; yet, my position is, as the subject experts like Professor John P. Lederach and even Professor Richard H. Solomon, former President of United States Institute of Peace are also agree, the nature of contemporary war suggests the need for a set of concepts and approaches that go beyond traditional statist diplomacy.

*Dinesh D. Dodamgoda, a Fulbright scholar and a lawyer, has a M.Sc. degree from the British Royal Military College of Science, Shrivenham (Cranfield University) on Defence Management and Global Security. He was also an MP from 1995-2000.