28 September, 2020

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The Domestic Inquiry Vs. Reconciliation

By Dinesh D. Dodamgoda

Dinesh 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.

tamils-missing-3-630x350The 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.

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Latest comments

  • 6
    0

    War was over in 2009. We all have problems today. We have a ruling party. There are many who are not qualified have no least conceran on people. Some of them have previous bad character record. They are repeatedly entering the system according to set up

    Frankly speaking we all get rid of Mahinda with great effort. Now he is again climbing the leader

  • 7
    4

    The Fun Situation SL finds itself in will result in it’s geographical boundaries been reset to those before the colonizers arrived. The Tamil people have cast their die, successful annihilating of them since independence through communal riots have forced their hand, Two Nations under One flag.

    • 3
      7

      “The Fun Situation SL finds itself in will result in it’s geographical boundaries been reset to those before the colonizers arrived”

      So most We Thamizh will be back in Tamil Nadu and the entirety of the island will be under the control of one of the Sinhalam kingdoms :D Good to know – better start packing your bags :D

      • 2
        2

        Wee Thamihz Siva Sankaran Sarma Menon

        “D Good to know – better start packing your bags”

        Don’t worry by the time Hindians establish their Kingdom of Hindia in this island Api Sinhala/Baudthaya will have left these shores and settled down in down under, Europe, Americas, even much hated toilet nadu and Bihar.

        The problem and solution will be imposed by the Hinidans and Wee Thamihz and Api Sinhala/Baudthayas just have to accept it, just as in the good old Pandyas and Chola days.

        Aren’t you proud of your Cholas?

  • 7
    3

    First, we have to see what the UNHRC report is.
    Only then can we formulate strategies for any ‘war crimes’ mentioned and any actions contemplated on them
    After this, we can think of reconciliation, but the climate for this has to be established first by a) withdrawal of the army from the north, b) allowing civilian life, occupations & repossesion of lands and livelihoods.

    • 2
      2

      justice,
      Don’t worry domestic investigation will take care of everything. You have only to enjoy life without being in fear of blasted by suicide bombers.
      By the way what reconciliation are you talking about and with whom? Do you know of any remaining terrorists from 2008 so we can reconcile with them. I am sure you know that innocent Tamil civilians had nothing to do with terrorism, right?
      You may also know that every human killed at the end of war in 2008 was a civilian, right? So, it is correct to assume that all those terrorists are mingling with civilians now, right?
      That is why the Army should stay put in the north and make sure you can live peacefully.

      • 0
        0

        Euse,

        Have you studied the manifesto of TNA? Everything is outlined in it; the Tamils have overwhelmingly voted the TNA as their sole representative. Considering there was a 30 year war and countless people perished with acquisitions of war crimes and crimes against humanity hovering, there is a need to reconcile with the estranged Tamil community. This fact has been recognised universally. If your mental capacity is devoid of intelligence to understand the ground realities, we cannot help you. You need to go back to the drawing board and work your way through the materials that will explain to you about communal realities in Sri Lanka.

        In the meanwhile, you keep this thought in your head; the Tamils want to use their language in state administration. If they cannot do this nationally, they will certainly want do this within the N&E. They want to have say a in what governs them and they do not want their territories artificially manipulated by the state without their consent!

  • 5
    5

    MR’s invitation to Oxford was while the GTF and other Tamil proxies were still frothing at the mouth over the defeat of their ‘heroes’, the LTTE, which though banned in the UK, openly carried out it’s activities in the UK, tolerated by the police and the unfriendly government. MR’s treatment at their hands on arrival in Britain would certainly have had an impact on the behaviour of our government.

    The LTTE machinery had been most successful in their vile propaganda, particularly during the last 6 months of the conflict and thereafter, while our own ‘High’ Commissioner(s) and diplomats elsewhere displayed their abysmal ignorance and ineptitude. Only Rajiva Wijesinghe, and later Chris Nonis were sufficiently combative to take them on.

    Our fair weather ‘friends’ in the West stood by while the government single-handedly took on the huge task of accommodating and feeding the 300,000 new displaced, while using any minor failures to subject it to inexorable criticism both directly and via the falsely-labelled ‘NGO s’. Japan as always stood with us, alongside our new friends China and Russia. The desired regime change has now taken place, and we shall soon see for how many pieces of silver, RW/CBK/Sirisena have sold our souls for.

    • 2
      5

      Ramuuuuuuuuuuuu

      you are at it again aren’t you?

      Here is some statistics which might help you to lie better:

      International humanitarian assistance

      2004 59.3
      2005 626.5
      2006 185.1
      2007 221.4
      2008 255.8
      2009 266.2
      2010 213.2
      2011 132.2
      2012 82.5
      2013* 14.7

      Total official humanitarian assistance, 2004-2013 (US$m, constant 2012prices)

      Total
      Official
      Humanitarian
      Assistance

      Other ODA
      (excl. debt relief)

      2002 53 485
      2003 43 886
      2004 53 597
      2005 427 1,008
      2006 163 722
      2007 224 456
      2008 258 520
      2009 255 522
      2010 215 411
      2011 127 475

      Humanitarian assistance and other ODA (excluding debt relief), 2002-2011 (US$ billion)

      https://docs.google.com/spreadsheets/
      d/1yjY5omR6fq9FgGwDjRWVLVjFH_
      STZbdOhowMRR4DTnU/edit#gid=2

  • 3
    3

    This article appears to be more political than logical. How can you have reconciliation without accountability? The reason there were repeated anti-Tamil pogroms was because no one was held responsible for the previous ones. It was the previous non-accountability that led to the slaughter of Tamil civilians in 2009. Do not put the cart before the horse for political purposes.

  • 3
    1

    This is an excellent analysis. Richard, requesting an inquiry is also political. Dodamgoda wrote- “In my opinion, the issue that we have in front of us is more of a political issue than a legal issue.” I think the whole question is political which requires a political approach than a legal approach.

  • 1
    0

    “Our primary responsibility is to break the cycle of hatred and mistrust that could pave the way for another bloody war, I repeat.”

    I agree with de-linking accountability from reconcilliation, however that does not seem to be the main issue. There is a strong nationalist feeling on both sides, most recently displayed as statements about ‘two nations’ etc.

    According to the LLRC report(comissioned under Mahinda Rajapakse’s government) :

    “9.187
    The articulation of grievances by the Tamil people continues to remain at the centre of the Sinhala – Tamil relationship and need to be recognized and addressed directly and fairly as the first step in the post-conflict process of reconciliation and peaceful coexistence.

    No doubt these grievances have changed over time and some of them have
    been dealt with, at least partially. However, many new grievances have been added as the conflict escalated. In that process the majority community and other minorities have also had their share of grievances. “

    This articulate statement, I believe, is the most honest appraisal of the root causes of the conflict, and these have to be adressed by the present or any future government. Few have I seen who are willing to meet this concern head-on.

    • 2
      3

      Vanguard

      “There is a strong nationalist feeling on both sides, most recently displayed as statements about ‘two nations’ etc. “

      What do you find abhorrent in two or more nations in one country?

      “No doubt these grievances have changed over time and some of them have been dealt with, at least partially.”

      Please give us some examples of the state’s generosity in dealing with grievances partially.

  • 2
    2

    I fully agree that first and foremost it should be reconciliation. The lands grabbed from the people should be returned to them without any further delay. They must be given full support to clear their lands of shrub jungle and also to put up some form of decent housing. The army should be down sized to a reasonable level and totally prohibited from engaging in any economic activities in competition with the civilian public.
    Accountability can take its own course.
    Sengodan. M

  • 2
    1

    I think we must not hurry over reconciliation. As a matter of respect for the TNA and for the satisfaction of the Tamil political class we must wait until the September UN sessions and subsequent ICC trials are concluded and the Sinhala side is punished. In the meantime every Tamil school child, particularly those living in the areas outside North and East must be educated on Winneshwaran ideology of genocide.

    It is a myth that reconciliation is paramount to development.

    As far as I am concerned I am quite happy over existing level of peace and stability.

    Soma

    • 2
      3

      somass-kantha

      “I think we must not hurry over reconciliation. As a matter of respect for the TNA and for the satisfaction of the Tamil political class we must wait until the September UN sessions and subsequent ICC trials are concluded and the Sinhala side is punished.”

      Don’t worry Tamils, Sinhalese, Muslims and others can wait however much time needed for the Sinhala/Buddhists to run out of their excuses. The Sinhala/Buddhists can come out with any number of creative lies to postpone, delay, … in digging out truth and serving bit of justice to the victims however truth and justice don’t depend on the machination of the war criminals or the corrupt lot.

      So if you don’t mind you can stuff your UN and ICC up into wherever you want.

      ” As far as I am concerned I am quite happy over existing level of peace and stability. “

      Many human beings don’t agree with your noisy minority views simply because the reconciliation process has been carried out not in consultation with the people who are supposed to be the stakeholders but on the whims of handful of cronies and faceless little people behind the desk.

      You should send back your reconciliation (that never was) back to drawing board and wait for the next load of lies to arrive at your door steps.

  • 0
    1

    Dinesh, you can’t have political buy in from Tamils if the state ignores crimes against the Tamil people. To allow impunity in the name of ‘reconciliation’ is to tell Tamils they will never find any justice in Sri Lanka and thus they need their own state.

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