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.