1 December, 2020

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Why We Should Oppose Criminally Prosecuting Sri Lankan War Criminals

By Pitasanna Shanmugathas

Pitasanna Shanmugathas

Pitasanna Shanmugathas

It is without question that there should be an independent investigation into war crimes and crimes against humanity committed in Sri Lanka by both the Sri Lankan government and the LTTE. However, to criminally prosecute those who committed war crimes in Sri Lanka, based on the evidence from an independent investigation, would absolutely destroy the fabric of the society.

If we genuinely wanted to prosecute those who committed war crimes in Sri Lanka, both Tamils and Sinhalese would vehemently oppose it. Why? An underlying reason is because we are hypocrites. We only want to fully acknowledge the crimes committed by the other side—never our own crimes. In order to prosecute those who committed war crimes in Sri Lanka, we must prosecute members who were part of the LTTE and also key individuals who served the Sri Lankan state.

In the case of the LTTE, although a good portion of the leadership is dead, individuals like Kumaran Pathmanathan (former arms procurer to the LTTE), Vinayagamoorthy Muralitharan (former commander of the LTTE in the Eastern Province), Adele Balasingham (former commander of the LTTE’s women wing), Perinpanayagam “Nediyawan” Sivaparan (former deputy and successor to “Castro” Manivannan—the LTTE’s international secretariat who directed and coordinated LTTE activity overseas until early 2009), various rehabilitated former LTTE soldiers living in the North and East, would all have to be prosecuted. The Tamil diaspora would vocally oppose the prosecution of these egregious human rights abusers. In addition, Tamil civilians in the North and the East would also oppose the prosecution of their sons and daughters who were members of the LTTE. Many former LTTE cadres, according to aid worker Thulasi Muttulingam who is stationed in the North, have been stigmatized and ostracized by the larger Tamil society in Sri Lanka. A lot of Tamil civilians in the North and East are upset at the former LTTE cadres for some of their egregious actions against their own people during the war, such as using civilians as human shields. Nevertheless, Muttulingam adds that Tamils would be opposed to prosecuting former LTTE cadres as Tamil elders in Sri Lanka are extremely protective of their own children. “Although [the former LTTE cadres] committed horrible crimes, [Tamil elders feel that] these are our children” and we will deal with whatever crimes our children have committed.

In the case of the Sri Lankan government, any attempt to criminally prosecute former or current members of the Sri Lankan government would meet with immediate opposition from Sinhalese civilians. In the case of the Sri Lankan government, an international court would have to prosecute Mahinda Rajapaksa (President of Sri Lanka during the final years of the war), Gotabhaya Rajapaksa (former defense secretary) , Sarath Fonseka (former commander of the Sri Lankan army during the final years of the war), Maithripala Sirisena (current President and acting defense minister during the last two weeks of the war), various upper level members of the Sri Lankan military during the final stage of the war, and various political and military leaders from previous government administrations. By prosecuting all these key individuals, not only would the Sinhalese civilians not submit to it, but it would destroy the fabric of the society by eliminating the members who compose the governing structure in Sri Lanka. Although the current governing structure in Sri Lanka is nowhere near perfect, and does not fully accommodate for the ethnic, religious, cultural, and linguistic plurality of those living in Sri Lanka, nevertheless, by prosecuting these war criminals it would create a nearly irreparable vacuum in Sri Lanka’s governing body. Furthermore, criminally prosecuting these individuals would significantly setback current efforts to collectively work with various political groups in Sri Lanka to make progress on ethnic reconciliation and constitutional reforms. Similarly, after the end of apartheid in South Africa, the perpetrators would not be criminally prosecuted. By criminally prosecuting the perpetrators, it would have destroyed the fabric of South African society and significant potential for ethnic reconciliation in South Africa. Instead, in order to gain accountability for those who committed egregious crimes, a truth and reconciliation commission took place in South Africa.

What I personally advocate, in order to genuinely achieve justice in Sri Lanka, is for a Truth and Reconciliation Commission (TRC) to take place. This idea was also brought up under the current Sirisena government in late 2015. Nonetheless, as indicated by the UN, the Sri Lankan government is incapable and cannot be trusted to conduct an independent investigation. As a result, in order to establish a credible commission, independent investigators from outside the country must be hired, given access to records and victims, and must oversee every step of the TRC truth-seeking process. In a Truth and Reconciliation Commission, perpetrators get a chance to publicly speak to the broader Sri Lankan society by confessing to the crimes they have committed and expressing remorse in return for amnesty from prosecution. The truth and reconciliation commission would consist of former members of the LTTE network and individuals (military and politicians) who served the Sri Lankan state speaking out about the crimes they committed against Sri Lankan civilians and seeking forgiveness. In return, they are provided amnesty for their crimes. In addition, civilians who were subject to gross human rights abuses by both the LTTE and the Sri Lankan government would publicly testify. The TRC will also establish what the root causes, patterns of suffering, and social impact were from the civil war. Furthermore, perhaps compensation maybe ordered to be paid on the part of the Sri Lankan government to civilians (especially Tamils) who were subject to gross human rights abuses by the Sri Lankan state such as shelling of hospitals, violations of Geneva conventions, alleged use of cluster bombs, and so forth.

Mahinda Rajapaksa’s Lessons Learnt and Reconciliation Commission (LLRC) report is largely flawed, inadequate and does not meet the criteria of a genuine truth and reconciliation commission. The LLRC, although admitting hospitals were shelled, would not state who was responsible for the shelling. The commission does not independently cover the abuses committed by both sides as it concluded that the Sri Lankan military didn’t “deliberately” target civilians but the LTTE repeatedly violated international humanitarian law. The commission, in general, has been criticized by international human rights groups like Human Rights Watch, Amnesty International, the UN Panel of Experts and others due to its limited mandate, alleged lack of independence and its failure to meet minimum international standards or offer protection to witnesses.

In order to genuinely achieve justice, a Truth and Reconciliation Commission must be set up inside Sri Lanka, incorporating technical assistance from the United Nations with independent investigators overseeing and having control of every step in the TRC truth-seeking process. An investigation of war crimes committed in Sri Lanka must have a significant level of independence—which is non-negotiable, and the need for an independent investigation is emphasized in several UN reports including the Darusman report. Nevertheless, it would be both unjust and impractical to advocate that those who committed war crimes—both the LTTE and the Sri Lankan government—be criminally prosecuted.

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Latest comments

  • 5
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    “Criminally Prosecuting” — is this correct? Sounds to me like the act of prosecuting can be performed in two ways: (i) criminal, and (ii) non-criminal!

    • 1
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      I guess it is to distinguish between prosecution under Civil Law and under Criminal Law.
      The former I would guess is by individuals and not the state.
      A lawyer could enlighten us more on the matter.

      • 0
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        Sekara: I was seeking help from a teacher of English rather than a lawyer. “Bringing a criminal prosecution against X” or “criminal prosecution of X” versus “criminally prosecuting X”.

  • 6
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    Food for thought.

    But even in the TRC of South Africa, some people were not qualified for immunity. I am not aware as to whether they were prosecuted.

    The first rule towards reconcillation is the prevention of rhetoric and inflamatory speech. TRC’s would only unravel history only to satisfy the mental state of some but that does not mean we should not have it.

  • 1
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    I feel a concept like Truth and Reconciliation Commission could serve the serious need of the hours. My opinion too is prosecution of such criminals is not sensible and if a person who did fraudulent acts come to the public and say I am clean and public is ready to offer very prominent positions to such positions to our society. Our people give their priority to young immatured actresses above matured politicians even in highly urban areas. When the people’s attitude to use their Noble Voting is at that stage it is imperative to know whois good and who is bad. (Ape minissunge jana winganaya thiyenn egodak pahala. Eke eyalage communication walin hitha ganna puluwan.)

  • 4
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    All those who have committed crimes should be prosecuted and if found guilty punished. We don`t care whether they are War Heroes or Whore Heroes!Trying to protect criminals is by itself is a crime against humanity.

    • 5
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      Nobody is trying to “protect criminals.” Rather, I advocate for trying to get accountability for war crimes committed, but I oppose criminally prosecuting these individuals. As it would be 1) unrealistic as it would be vehemently opposed by both Tamils and Sinhalese if we did actually criminally prosecute war criminals, 2) it would hinder significant efforts towards ethnic reconciliation and also degrade Sri Lanka’s governing structure (although, imperfect, by removing individuals who are part of the governing structure in Sri Lanka, it would create a vacuum which would be filled by even more extremist Sinhala hardliners). So if that is what you want, advocate for an unreachable and impractical goal of criminally prosecuting war criminals. However, if you want accountability, the best method is a truth and reconciliation commission with independent TRC truth-seeking methods overseen by independent investigators and monitored by the UN. That is MOST (not least) feasible solution towards gaining accountability and justice.

      • 4
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        Pitasanna:

        “An underlying reason is because we are hypocrites”

        Look who is talking about hypocrisy here. Looks like you want to be a smart guy but come up a cropper. The reality is Sri Lankan society has become evil. Do you want to know why? The phenomenon of committing grave injustice with impunity and getting away with it has turned the Sri Lankan society into a misfit evil society. It is not just happening today or yesterday – it has been happening for so long. It is happning to this day. It happened not only to Tamils but a good number of Sinhalese, too. All these were whitewashed with phony commissions and trials. Do you know of a word called “remorse”? That is a rare or practically an absent commodity in Sri Lanka.

        Everything in Sri Lanka revolves around one, and mainly this thing – to build political careers out of the misery of people. The country has become such a pitiful sight that a TRC would be another whitewash. There will be a lot of ifs and buts but there will never be a conscientious attempt or effort to forge a path, any path for that matter, towards a reconciled Sri Lankan society and do you know why – the path to building their political careers and positions will be gone and they have to be given begging bowls for their next meal. So, don’t be so naive as to expect disney magic.

        It has to be “Out of the Ashes–A Phoenix Rises”. The cancer that has afflicted Sri Lanka has to be uprooted completely. By citing how it will affect reconciliation because of hanging the Sinhalese and Tamil crooks, you are telling that law and order can be abandoned, tear up the constitution and close the door of the halls of justices. Imagine one day you are standing for election one day, a label should be flashed that you are a crook in the mould of these erstwhile and horrible crooks you are requesting to spare.

  • 6
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    PS you are sadly mistaken. If path of justice is undermined, the same contravention will eliminate you too. There is a famous ‘Kaduwa’ proverb which you must try and understand. Truth and Reconciliation should only draft a policy for the future. Course of justice should be allowed to take its own course. Do not expect justice from local politicians.

  • 4
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    The writer sent down a proper doosra with the title alone.

    However, after I read the whole article, I realised it all came down to the long lingering conundrum.

    Many of the lucky living participants in the thirty-year misery fest have too much to hide. Everybody, especially the ‘winning side’ did NOT play according to the Queensbury rules. The Great Liberator and his Enforcer staunchly maintained that ‘our boys’ went into battle withe ‘AK in one hand, and the Geneva Convention in the other’. Not even a konday-bandappu-aspooncha will believe that. Ha, bloody ha!

    As all the main suspects agree, better not give the opportunity for too many smart-arses to start asking awkward questions. After all, we have the national reputation to protect.

    • 2
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      Go and read the ICRC report which mentions, SLA suffered greater casualty as they tried to save civilians.

  • 4
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    The Tamil chavnanist of Federal Party of SJV.Chalvangam ,TULF of Amrithlingam ,TNA of Sampamathan & Sumathiran, North Council Chief Minister C.Wignisriam and LTTE terror leadership of led by Parabarakam are roots cause of War that led for for myth of Tamil Eealm.

    All Tamil chavnanist ideologist want the myth of Tamil Separate State in Island of Sri lanka.

    The proposed Tamil empire for Tamil speaking in world,that Sri Lankan land is most weakest link in chian world to gain Tamil land in FIRST NORTH and EAST of Island .
    Tamil Empire launch massive funding collecting, while man power supported by Tamil Nadu and other oversees Tamil speaking people on all over the world to installed Tamil Regime in North of Sri lanak.

    That was key root cause of Sri lanak’s civil with Tamil Eealimst war launch against minority Sinhalese race in South Asian region. Indeed there is Tamil Homeland in Tamil Nadu that is not myth, in India. But Island of Sri Lankan is myth of Tamil Eealm was that concord story by Tamil Empire think tank.

    When we are forced to resist war against the proposed Tamil Empire, is to be safeguard Ours national sovereignty, Territoritrial Integrity, Independent and Democracy of People and all nationalities of Sri Lankan that ours mission was just one.
    Ours resistance against Tamil Empire is/was just war. There is no war crime has been in arise at all.

    The People of Sri Lankan having every right to resist against Tamil invasion by dominated factor shows 30 years that our cause is just in line of history of resistance against Tamil domination.
    LTTE is/was the war of proxies by gain Tamil Empire is part of an Island by eliminating Sinhalese -Buddhist race from Island.

    This is/was LTTE the Tamil racial war against people of Sinhalese. When we resist against LTTE-Terrorist then how is that become WAR CRIME?

    These are Political nonsense of western ideologies promoted by TNA, UNP and Tamil diaspora’s of so-called war crimes!

    Tamil Empire was forced us to resist war by TULF and TNA and LTTE and other Tamil outfits of Terrorists of that advocating Tamil Eealm regime! North-East!!!!!!!!!

  • 8
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    Dear Pitasanna Shanmugathas,

    You talk sense. Let’s have less rhetoric, and more honesty.

    Horrible things were done by both sides during the War. That some may deserve punishment may be true, but it just won”t be possible to punish them.

    I appreciate the line that you take: it is generous. the Tamils suffered more than we, Sinhalese did, and most of the guilty got killed, along with lots of innocents, at the end of the War. “Individuals like Kumaran Pathmanathan (former arms procurer to the LTTE), Vinayagamoorthy Muralitharan (former commander of the LTTE in the Eastern Province). . . escaped essentially by double-crossing the LTTE. Without Karuna’s help we may not have been able to defeat Prabhakaran at the time we did. Let all that be. On the other hand, the Sinhalese War Criminals (those at the very top, not the soldiers) seem to be still enjoying life, knowing that arrest and release has become just a game.

    It’s good that you realise that prosecuting the Sinhalese leaders (possibility) and punishing them (absolutely impossible) will only stregthen the Sinhalese hard liners. I still don’t approve the way that Maithripala has let us all down, but I’m not so sure that as Acting Minister of Defence he had much say.

    We must reconcile ourselves to the fact that reconcilliation and not chasing after “Justice” is what we should settle for.

  • 4
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    “If we genuinely wanted to prosecute those who committed war crimes in Sri Lanka, both Tamils and Sinhalese would vehemently oppose it. Why? An underlying reason is because we are hypocrites.”
    Is that the basis for the writer’s objection to criminal inquiry.
    That logic ties up nicely with the jury verdict on Raviraj’s murder in broad daylight.
    Is it not time that we cut through that hypocrisy?

    There is need for an proper internal inquiry, but I reject the case for foreign judges for I know the implications.
    I am not talking of punishment, but the truth should be found and faced.

    Comparison with SA is invalid, as there it was the representatives of the victims who held the whip-hand’ and chose (or made to choose by the neocolonial masters?) to be magnanimous.
    The fabric that would have been destroyed in South Africa in the event of a proper criminal inquiry would have been the one woven by imperialism and the ruling elite, now with threads of the ANC and NUM reinforcing it.

  • 5
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    As a Sri Lankan, I want to prosecute the war criminals who sustained and prolonged the suffering of the Sri Lankan citizens.

    Who are the ‘victims’?
    The victims of the Sri Lankan war are not the people who were dragged into a small beach by the LTTE, the whole citizenry of this country are victims including me. Each and everyone in Sri Lanka is a victim to a different degree regardless of his or her gender/ethnicity and religion.

    And who are the war criminals in Sri Lanka?
    The primary war criminal is those who started the bloody war in this country by giving terrorists, funds and weapons and international recognition. India started the bloodiest part of Sri Lanka war. So people in Sri Lanka are a victim of cross border terrorism.

    And why did the disastrous war in Sri Lanka took 30 years to end? Who prolonged the suffering of the people in the country until the LTTE was decimated in 2009? The Tamil diaspora in the west. So as a victim of war, i want them to be brought to Sri Lanka and executed for the crime of terrroism against Sri Lankan people.

    And of course the white masters of the LTTE, who supported LTTE terrorism in Norway, Canada and in britain.

    So as a victim I need justice..

    And about the so called international investigation on Sri Lankan war crimes supposedly committed by Sri Lankan state. we reject it as a mere political tactic. The recent revelation by Shiv Shankar Menon has shown that US and Norway tried to save Prabhakran. So only a fool would consider the charges against Sri Lankan government brought by these two and their NGOs.

    And lastly there is NO case against Sri Lankan state. That is the main reason we have to reject the so called investigation.

  • 2
    1

    Truth & Reconciliation Commission may be a useful concept to find the Truth and Reconcilliation but how far it will be successful in Srilanka is a million dollar question. It should have come automatically at the end of the war if the leadership understood thhe real cost of the ethnic oriented politics and its impact on the ordinary citizen of this island. Srilanka never had a leadership that committed to the people’s welfare, peace and unity of people and Nation. We talk about external investigators but the external players also played a substantial role in the creation of problems, magnifying the problems and still be part of the problem. Are we able to find the truth about the external partners contribution.
    In my opinion Srilanka is still not ready for finding the Truth & Reconciliation. The cost of the conflict is not enough to induce or generate a leadership that will committ for peace. But we are not far away from moving on that direction. King Asoka gave up everything only after he show the worst of the world’s disaster.

    “”In about 260 BCE, Ashoka waged a bitterly destructive war against the state of Kalinga (modern Odisha). He conquered Kalinga, which none of his ancestors had done. He embraced Buddhism after witnessing the mass deaths of the Kalinga War, which he himself had waged out of a desire for conquest. “Ashoka reflected on the war in Kalinga, which reportedly had resulted in more than 100,000 deaths and 150,000 deportations, ending at around 200,000 deaths. Ashoka converted gradually to Buddhism beginning about 263 BCE. He was later dedicated to the propagation of Buddhism across Asia, and established monuments marking several significant sites in the life of Gautama Buddha. “Ashoka regarded Buddhism as a doctrine that could serve as a cultural foundation for political unity.

  • 3
    2

    Pitasanna Shanmugathas you say “Criminally Prosecuting” (sic) Sri Lankan War Criminals””…

    will destroy the fabric of the society…ha ha what a joke. Is their a fabric of society at the moment in Sri Lanka? far from it.

    There are double standards when it comes to LTTE. on one hand they are a terrorist organisation on the other they committed war crimes.

    Dead people can be posthumously charged with war crimes.

    But lets focus on the Govt of Sri Lanka. The Sri Lankan govt committed the worst war crime against their own people. Children old men old women , pregnant women , disabled people were all invited to their slaughter house. They were asked to take refuge in the no fire zone and bombe out.

    and you conclude “it would be both unjust and impractical.

    Have you spoken to the people who suffered and lost their kith and kin and property?

  • 2
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    Then better call them misdemeanors rather than crimes. Crimes – no matter whoever committed – must meet proper punishment. But unfortunately it is an unwritten law that might is right. and two blacks don’t make white.

  • 2
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    The South African Truth and Reconciliation Commission had people of the calibre of Mandela and Tutu. Will Pitasanna name a single Lankan statesman of that calibre? Of course there are lots of Zumas. A name like Bahu will never cross Pitasanna’s mind but he may posthumously nominate Neelan!

    The Pitasanna solution is as garbled as a SLR 3/- stainless steel pot scrubber but cannot be used to clean anything.

  • 6
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    When Sinhala down south celebrate conquest and genocide by lighting firecrackers and hoisting sri lankan flags, Tamils up north hoist black flags and mourn for their dead. One country, two nations.

  • 1
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    If we have to establish a culture of accountability on all sides for a better future, all sides, all processes have to brought to justice. The majority cannot absolve their sins through assigning their Government to do the bidding for them. In a raping situation there is the person committing the rape and the victim trying to defend herself. At the instance of the majority community assuring and putting in place a system to protect the minority, then what Pitasanna says may make sense. If armed forces are removed and complete equality given to all Sri Lankans then there is a case. Otherwise this does not make sense.

  • 2
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    If Sri Lanka want to create an image in the world, war criminals should be punished.

    South Africa put a new constitution in place. Some of the sentences used in the preamble of the constitution of SA are as follows:

    – Recognise the injustice of the past
    – Honour those who suffered for justice and freedom in our land
    – Heal the divisions of the past …….
    – Build a united and democratic SA able to take its rightful place as a sovereign state in the family of nations

    In short two things from the preamble of the SA constitutions are mentioned – healing the wounds and family of nations. Sri Lankan inable leaders are still struggling to draft a new constitution. They do not have leadership skills. It is foolish to expect good outcome from these corrupt leaders.

  • 1
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    Let us be true to down to earth reality. We have seen hundreds of cases being dismissed in spite of rock hard evidences after decades of legal battle in our courts.

    Should we continue with such legal system and waste our precious time. energy and Resources?

  • 2
    2

    It is not a matter for Sri Lanka alone. It is not for the good of the world that genocide and war crimes do not go unprosecuted. We have had a string of them accelerating in recent times. After the Holocaust, there were several but the ones in Serbia and Rwanda followed soon after the other. The world was wise in ensuring that those responsible were brought to trial. It may be that the trials had faults but it did serve to show that the world could act to punish those responsible. Genocides wait to happen in Kashmir, Xinjiang, Tibet and elsewhere. A deterrence needs to be built up to protect innocent lives.

    For Sri Lanka, it would be to the good of Sri Lanka if this could happen. There is a corrupt and racist judiciary (vide the Raviraj case and the earlier cases like Sinharasa Case). Occupation of Tamil lands still continues. There is no devolution of power to the Tamils. The Augean stables need to be cleansed. This young man is enthusiastic but the Truth and Reconciliation Commission is no answer. The rot in society, the corruption, the genocidal tendencies, the hatred, the religious and ethnic chauvinism, the Mahavamsa myths, etc. etc. cannot be wiped out by the gentleness of a Truth and Reconciliation Commission. It requires the intervention of an outside, neutral hand to set thing right.

    For both the good of the world and for Sri Lanka, there must be a fully fledged war crimes trial to punish the war zeroes of Sri Lanka who corralled and slaughtered innocent civilians. Appeasement is not the answer.

  • 2
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    this young man’s write up shows coming colours no good for tamils. the tna is trading off justice for little its and bits from sinhala government so that they can showcase this to the gullible tamil electorate in the name of political solution. they term this ‘reconciliation’ and want to get approval from the tamil people. of course there are vested interests behind this empty reconciliation rhetoric so that they can hide their blood stained hand too. lets hope tamil people will wakeup to another round of deception before its too late.

  • 1
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    Dear Pitasanna Shanmugathas,

    Before I write anything on your article I would like to congratulate from the bottom of my heart for your excellent and impartial analysis and article.

    You advocate the “Truth and Reconciliation Commission” (TRC) in Sri Lanka with the aim of dealing with crimes and human rights violations committed in Sri Lanka by both the Sri Lankan government and the LTTE and also to bring perpetrators and victims into a “dialogue” and thus create a basis for the reconciliation of the quarreling populations.
    I agree with all of your arguments but would like to know your opinion for my following reasonable suspicions:

    1)Universally respected Archbishop and Nobel Peace Prize laureate Desmond Tutu was called as chairman of the TRC in South Africa -who is the suitable person to be called as chairman of TRC in Sri Lanka?

    2)What is the time period you suggest for the function of the TRC?

    3)The success of TRC remains doubtful – Certainly, only a few perpetrators can willing to report their crimes without the assurance of impunity. Nevertheless, the amnesty principle may neither understand nor accepted by many victims. What do you think?

    4)Is it morally acceptable the members of LTTE, Police and military personnel confronted the Commission with serious crimes, torture and executions of suspects to allow go home as free men and women?

    5)According to the awaiting confessions, the perpetrators were protected not only from prosecution, but also from civil claims for compensation for victims or survivors. Some of the victims may try to forbid the amnesty by judicial means, which, however, remain unsuccessful on account of the legal situation later. Is it OK?

    6)The TRC may unfortunately fail to fill the deep ditch between Singhalese and Tamils or formerly disadvantaged and disadvantaged sections of the population and can hardly build bridges. The latent racial hatred is still present in Sri Lanka. Am I correct or not?

    • 0
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      1) In the case of South Africa, although the overwhelming number of abuses were committed by the whites–abuses were also committed by groups who took part in an armed struggle against apartheid. So there was a complexity in the case of South Africa as well to the extent that all the abuses were not solely committed by whites (although an overwhelming majority were), abuses were also committed by blacks who took part in the armed struggle. Yet Desmond Tutu, and the TRC held that all human rights violations would be treated in the same manner regardless of who committed it. I do not think it is my place to suggest who is a suitable candidate to chair a Sri Lankan TRC, at the same time, I do not think finding a suitable candidate is such an insurmountable challenge as people make it out to appear. I think somebody with the caliber of DBS Jeyaraj, who has been cited in works by both Tamils and Sinhalese and has been critical of both the LTTE and GOSL and does not have any allegiance to any nationalist party or entity, would prove to be trustworthy to chair the TRC. Only time will tell–however, I do not believe the challenge of choosing a chairperson is insurmountable.

      2) In addition to bringing the perpetrators and victims into a dialogue, a function of the TRC would also address the root causes, patterns of suffering, and social impact of the civil war. In order for the TRC to fulfill its duty in addressing the root causes of the civil war, the TRC must also assert that the Sri Lankan government’s systematic and oppressive laws against Tamils such as the Sinhala Only Act, the Standardization Act (different admission standards for Tamils in order to enter university),the series of pogroms throughout the 50s, 60s, and early 70s, the TRC must investigate into all these factors and conclude that the Sri Lankan government was responsible for triggering the civil war where Tamils resorted to use up arms in order to address grievances which Sinhalese politicians (influenced by right-wing Sinhala Buddhist hardliners) refused to hear. The TRC, in this respect, would have a more broad scope instead of just focusing on the final years of the war. Sri Lanka’s LLRC (a flawed report for reasons I mentioned in my article) looked at human rights violations from 2002 to 2009. However, in order to genuinely address grievances, it would be best if the TRC addressed the Sri Lankan government states policies responsible for triggering the civil war, and also the 26-year civil war span at large. However, it is true that there are certain obstacles which must be addressed–for example, the IPKF is responsible for committing horrible atrocities against Tamils and the Indian government (and RAW) is responsible for arming the LTTE. If we broaden the time period of the TRC, should we also call for former commanding IPKF members and India’s RAW to testify? However, these doubts can be worked out and I do not believe they are insurmountable challenges.

      3) This was also a criticism of the South African Truth and Reconciliation Commission. Some victims felt that Mandela should have sought criminally prosecution incarceration of the whites who were responsible for the brutal violence, systematic oppression, and murder of blacks. The concept of amnesty, for many in South Africa, was an unknown concept. However, throughout the TRC, many victims said they were glad that they finally were able to tell their stories to the faces of their former abusers. As a result, as stated by Desmond Tutu, this was a form of restorative justice and provided a good stepping stone for rehabilitation. I believe a similar result will happen in Sri Lanka, once victims of abuse are able to tell their stories in front of their accusers, many will understand that this in and of itself was a form of closure and a step towards rehabilitating their minds. In addition, finally, victims of abuse are able to hear that their former abusers admit to the horrible crimes that the UN, Human Rights Watch, Amnesty International for several years (and even decades) has accused them of committing. I believe this is a significant step towards achieving justice. In reality, there are three forms of amnesty: General (blanket) amnesty, Limited amnesty (limited in time, limited to certain perpetrators), or Conditional amnesty (conditional upon application and/ or testimony). In order to encourage those who committed crimes to testify, I advocate for conditional amnesty where if those who committed crimes want to receive amnesty they must agree to testify. This will provide significant incentives for both GOSl and former LTTE offenders to testify. In return, The Sri Lankan TRC must promise that those who testify and express remorse to the Sri Lankan public be provided amnesty.

      4) You are asking about morality. The same question was raised in South African TRC and the prior TRC’s in Chile, Argentina, and other countries that conducted TRCs and still is something that is heavily debated. In order to establish a credible TRC commission, independent investigators from outside the country must be hired, given access to records and victims, and must oversee every step of the TRC truth-seeking process. Under a credible Sri Lankan TRC, the victims are given some form of closure as they receive justice in the form of accountability as the perpetrators admit to the crimes they have committed and express remorse in the face of the victims they have abused. I personally do not see what use incarceration brings about. In terms of feasibility towards gaining accountability for those who have committed egregious crimes, a credible TRC under UN mechanisms is the MOST REALISTIC and FEASIBLE solution. There is no other feasible solution. The perpetrators will always know the crimes they have committed and because they have, under a credible TRC, publicly admitted to the crimes…the entire world knows. So that acknowledged guilt, in some way, is a form of punishment those war criminals have to live with for the rest of their life even though they are not physically incarcerated.

      5) A TRC can also provide reparations (compensation) to affected victims. In the article, I advocated that the Sri Lankan government should provide financial compensation to those who were affected, especially, Tamil civilians and Muslim civilians who were affected by the crimes committed by GOSL and LTTE. Such financial compensation would at least, in some form, act as a type of closure to the abuse faced by victim…The concept of a TRC and amnesty is still unknown to many living in Sri Lanka, so some civilians will legally and unsuccessfully try to oppose the TRC and confessions from taking place, but I believe many will realize given the circumstance that this is the most feasible method towards gaining accountability and justice.

      6) I actually think a TRC would help bridge the ethnic divide between Tamils and Sinhalese. By not having a TRC, I think the ethnic divide would get worse. The TRC provides a forum for accountability, healing, expressing remorse, where all victims–Sinhalese, Tamils, Muslims, Christians, Burghers, can come together speak out about the abuses they have faced, take responsibility for the crimes they have committed, and ask for forgiveness. Decades of war have isolated ethnic groups from one another, dispossessed people from their lands, and animosity has filled the air. In order to address this, significant financial reparations and economic incentives must be provided to those who were affected by decades of war. For example, under the current Sirisena government, Tamil widows of LTTE soldiers do not receive pensions and receive very minimal government assistance. This is the wrong approach and there must be a reversal of this policy, which I believe must be advocated under the findings of a TRC. In general, Tamils and Sinhalese for decades were intermarrying, similar customs, traditions and had cordial relations with one another. The TRC, through the inclusion of all ethnic/religious/linguistic groups, I believe will help build the bridge towards reconciliation and it will also provide further-needed discussion towards constitutional reforms that will protect, represent, and provide rights to the pluralistic society in Sri Lanka.

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        Pitasanna “I think somebody with the caliber of DBS Jeyaraj, who has been cited in works by both Tamils and Sinhalese and has been critical of both the LTTE and GOSL and does not have any allegiance to any nationalist party or entity, would prove to be trustworthy to chair the TRC……”

        DBS J on par with Tutu?

        Scraping the barrel bottom! The only attribute needed to lead the PS version of Lankan TRC seems to be someone critical of LTTE. How about Carlos Fonseka who theorises that the 1981 Jaffna Library fire was orchestrated by LTTE?

        Pitasanna your suggestion is new but stupid.

        Is the earth flat Pitasanna?

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          Where did I suggest DBS Jeyaraj was on par with Tutu? I also said someone with his calibre, not necessarily him. DBS Jeyaraj though is someone who has strong credibility, he was not only critical of GOSL and the LTTE but also the IPKF during many of their atrocities against Tamils. I think if we want to bring fairness to the TRC, someone with DBS Jeyaraj’s credibility, favorability by both Tamils and Sinhalese and reputability is needed.

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          An individual with similar calibre is Navi Pillay who was the former UN High Commissioner for Human Rights and actually worked in South African and fought against apartheid and was also involved in the legal team during the Rwanda genocide, she was also critical of both the GOSL and LTTE but she is deeply mistrusted by the Sinhalese but someone like her is deeply capable and competent

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        This additional pieces shows that the writer lives in cloud cuckoo land.

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    When hostilities ended in SA, the oppressed (black) took control of their country which in itself was the ultimate victory, T&R was the healing balm on their wounds.
    To initiate a war tribunal or T&R commission in SL is putting the cart before the horse as though the military arm of the struggle for separatism was annihilated, the political and ideological quest to self-determination of the NE Tamils are still a deep rooted aspiration which needs to be negotiated within a unitary via the amendment of the constitution.
    Tamil politicians will have to decide soon if they are going to be realistic in working with the current government that is more inclusive towards Tamil issues or risk the opportunity by making unrealistic demands in a constitutional amendment and run the risk of returning a MR style dictator that will return the country to the post war dark ages.

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      JayGee “……the political and ideological quest to self-determination of the NE Tamils are still a deep rooted aspiration ….”

      Since 1948, the deep rooted aspiration of NE Tamils is justice.

      Tamil leadership have eschewed “separate state”. Up to the present successive GoSL have not offered anything to look at.

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        K.Pillai,
        To eschew a “separate state” is a great first step, but I’m not sure this has been clearly communicated to the media / GOSL along with the burning issues that would resolve the Tamil issue.
        I’m aware the NE merger is now a thorny issues as well, is there any recent statement made by the Tamil politicians to the GOSL as to what they consider burning issues and the desired outcome…appreciate if you could append links to same.
        Best Wishes.

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    I find your statement more dangerous than MR returning.

    “Tamil politicians will have to decide soon if they are going to be realistic in working with the current government that is more inclusive towards Tamil issues or risk the opportunity by making unrealistic demands in a constitutional amendment and run the risk of returning a MR style dictator that will return the country to the post war dark ages.”

    going by this logic, if there were someone worse than MR, tamil people should work with MR because he is less ‘dangerous’. in other words, should tamil people be bound by whatever is realistic as set by whichever sinhala regime that is ruling in the south?

    if you look back, neither of the major sinhala parties wanted to share power, rather consolidate more power for the center. any constitutional amendments should be seen that light. negotiating justice for little its and bits must be seen in this regard. what guaratee can the TNA give that even these little its and bits that assuming they may get with this gov’t will not be reversed by the next gov’t in the south. this is why i say tamil people should wake up to another round of deception before its too late.

    reconciliation can only happen with two equals, not between victor and conquered.

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    Sri Lanka is failed and a rogue nation under successive Sinhala Buddhist leaders and resulted in shedding blood and mass human rights abuses.

    Unless a foreign intervention including military intervention, Sri Lanka will become a corrupt and criminal nation like India. Sri Lanka has been deteriorating in rule of law, justice, law enforcement and highly politicized nation than about 50 years ago and it is unlikely to change course unless war criminals are punished mercilessly. No reconciliation will take place if war criminals and abusers are brought to face ICC and punished.

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