By Dinesh D. Dodamgoda –

“We may never forget, but we must forgive”

The above words came from former President of South Africa Nelson Rolihlahla Mandela, when he was encouraging Miriam Makeba, a South African singer nicknamed Mama Africa, to return to South Africa from exile.^[1]

When rebuilding South Africa, ‘forgiveness’ was the ethos of Nelson Mandela. In Long Walk to Freedom, he wrote, “To make peace with an enemy, one must work with that enemy and that enemy becomes your partner”.^[2]

The principle of forgiveness became the foundation of the South African reconciliation process. In order to initiate the reconciliation process, the South African Truth and Reconciliation Commission (TRC) was establish as a part of the Promotion of National Unity and Reconciliation Act passed in 1995. The Act was passed after debated the bill in the parliament for 200 hours.

The Promotion of National Unity and Reconciliation Act was based on the principle that ‘reconciliation depends on forgiveness and that forgiveness can only take place if gross violations of human rights are fully disclosed’, offered amnesty to the perpetrators of ‘acts associated with a ‘political objective’.^[3] Therefore, the TRC which helped in healing the wounded South African society had no power of prosecution, or any judicial function. Archbishop Desmond Tutu, later appointed to Chair the TRC, hoped that the TRC would open wounds in order to clean them. As Professor Andre du Toid, an Emeritus Professor in Politics at the University of Cape Town, observed, ‘The South African Commission will be unlike the Nuremburg trials in that it will be concerned with truth not justice.’[4]

No TRC for SL!

An inquiry is being demanded by the Global Tamil Forum (GTF) led Tamil diaspora and human rights groups in urging the United Nations (UN) to investigate alleged incidents of gross human rights violations during the ‘final phase’ of the War against the LTTE in Sri Lanka. Although a mechanism has not been finalised yet, the groups that demand an inquiry are not ready to accept a mechanism similar to the South African TRC model.

The GTF wants perpetrators to be punished. Commenting on former President Mahinda Rajapaksa’s decision to hold snap elections in January 2015, Suren Surendiran, the GTF Spokesperson said; “It is Rajapaksa, as the head of state and commander in chief of the military, who stands accused of committing war crimes and crimes against humanity. Some people even accuse him of committing genocidal crimes against the Tamil community.  As head of state he has immunity against international law. The day he is beaten in an election and is not head of state. Just has what happened to Charles Taylor or Milosevic who committed genocidal crimes and breached international law, Rajapaksa will be taken by the International Criminal Court and will be charged with committing war crimes.”[5]

Human rights groups also take a similar stance. For example, Amnesty International Chief Executive in India G. Ananthapadmanabhan said in an interview; “There should be punishment based on the findings of the (UN) investigation. Officially, Amnesty is not welcome to Sri Lanka at this time … but we have our own ways to find out what is going on there.”[6]

Therefore, it is evident that the GTF and human rights groups demand a mechanism based on a ‘punitive justice model’ which aims at ‘justice’ by punishing convicts after a trial. It is surprising to note that even the Government of Sri Lanka (GOSL) does not consider the South African TRC as an appropriate model for Sri Lanka. As quoted by the Tamil National Alliance (TNA) Parliamentarian Mr. M. A. Sumanthiran, the reason for inappropriateness according to the Foreign Minister Mangala Samaraweera is that ‘amnesty for disclosure will not work in SL, and that perpetrators will be prosecuted, since confession and forgiveness is not part of the SL culture.’[7]

In addition, two different approaches are proposed in the draft of the National Policy on Reconciliation^[8] which was prepared by Professor Rajiva Wijesinha, Mr. Eran Wickramaratne, Mr. M.A. Sumanthiran, Mr. Javid Yusuf and Mr. Jeevan Thiagarajah in prosecuting perpetrators of alleged war-crimes. The said policy document noted under the sub section Justice and Truth and Reconciliation that,

‘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.’

Accordingly, the policy 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.’

Therefore, the approach in the final draft of National Policy on Reconciliation proposes a ‘restorative justice’ model to the LTTE fighters and a ‘punitive justice’ model to the government forces, setting up two moral status for the LTTE and the government forces.

Concerns raised against a TRC

As such, at least five points were raised by the GTF, Amnesty International, the GOSL and the authors of the draft of the National Policy on Reconciliation in arguing the case against Sri Lanka in adopting a mechanism similar to the South African TRC model. Accordingly,

1. An inquiry should be based on the principle of punishment but not forgiveness
2. An inquiry should set up two moral status for the LTTE and the government forces
3. An inquiry should consider only the final phase of the War against the LTTE
4. An inquiry should be based on a trial, a conviction and punishment
5. An inquiry is to punish perpetrators as confession and forgiveness is not part of the Sri Lankan culture

The Experience in SA

When evaluating arguments raised against Sri Lanka in adopting a TRC style mechanism, it is worth inquiring the South African experience with regard to the five points noted above.

1. An inquiry should be based on the principle of punishment but not forgiveness

There is no need to emphasise that the South African mechanism was based on the principle of forgiveness but not the principle of punishment. The TRC in SA had no power of prosecution, or any judicial function. However, it could summon witnesses and had search powers and access to all documents. According to the process that was adopted by the TRC, a perpetrator could apply for seeking amnesty and after a detailed confession about crimes he/she committed in achieving political objectives, his/her name would be published in the Government Gazette with acts for which the amnesty apply. It was a public hearing, yet the Committee could decide on a private hearing.

2. An inquiry should set up two moral status for the LTTE and the government forces

Only a single moral status was set up in the South African context. The National Party (NP) negotiator, a member of the last white cabinet, Danie Schutte cautioned that ‘any instance on separate moral status for apartheid soldiers and guerrillas of the African National Congress’ (ANC’s) armed wing could undermine reconciliation.[9] A South African reporter noted that the Commission should focus not just on the apartheid regime but also on crimes committed by the liberation movement such as the ANC atrocities in Angolan detention camps.[10]

3. An inquiry should consider only the final phase of the War against the LTTE

The South African Commission had a mandate to cover crimes committed with a political objectives from 1 March 1960 to May 1994. This was to cover almost all the possible politically motivated gross human rights violations during the apartheid in SA. However, only the final phase of the War against the LTTE is to be considered in the Sri Lankan case and it would be the period from 1 January 2009 to May 2009.

4. An inquiry should be based on a trial, a conviction and punishment

Human Rights organisations are the main propagators of the above argument. Even in the South African context, Amnesty International itself had suggested that pardon be granted only after trial and conviction.[11] However, arguing against human rights organisations, Professor Kader Asmal, a Professor of human rights at the University of the Western Cape and a politician, stated in a speech prepared for the TRC in SA that, ‘The Nuremburg approach would probably enjoy the support of most human rights organisations’ but this would not be conducive to reconciliation ‘and could be considered as a witch hunt’.[12]

5. An inquiry is to punish perpetrators as confession and forgiveness is not part of the Sri Lankan culture

Even in the South African context, some people argued that the culture and the moral code of the South African society is to punish perpetrators. For example, the very first interviewee, a Professor, who applied to become a TRC Commissioner said in the interview that he believed in retribution as part of the process, because ‘it is part and parcel of our moral code, our legal system and our theological belief, and I feel that the public embarrassment that would come with revelation to the Commission is a form of punishment.’[13] Even the families of Steve Biko also disagreed with the TRC and tested the Legality of the Commission in the Constitutional Court, saying they want ‘justice’. Yet, the confessed perpetrators who admitted to killing Biko were not prosecuted.

Archbishop Desmond Tutu believed that reconciliation is not cheap and was based ultimately on forgiveness and repentance, which depend on confession.[14] Archbishop Tutu favoured as broad a process of forgiveness as possible, provided those who perpetrated murders or torture could prove they acted politically.[15] Therefore, the SA government refused the argument raised against the TRC on the basis of cultural and moral codes of the society and went ahead with the TRC mechanism.

TRC for SL?

As we noted above, there were concerns even in the South African context against the TRC. However, the President Mandela and the Archbishop Tutu had the courage and the political will to go beyond human limitations to uphold the principle of forgiveness. Eventually, the TRC became a successful mechanism in encompassing a new vision for South Africa, the country that had torn apart by the wrongs of apartheid. Therefore, the concerns raised against the idea of adopting a TRC mechanism in Sri Lanka can be challenged.

The argument that raised against the TRC by the Foreign Minister Mangala Samaraweera on the basis of the idea that confession and forgiveness is not part of the Sri Lankan culture is incorrect. In fact, the Sinhalese and the Tamils have a culture of forgiveness. For example, the foundation of their traditional New Year Festival (Sinhalese and Tamil/Hindu New Year) which they celebrate together on the same day is about having a fresh start and forgiving others. According to Buddhism, the religion of the majority Sinhalese, “Hatred is, indeed, never appeased by hatred in this world. It is appeased only by loving-kindness. This is an ancient law”. I would like to state that when playing a major role in re-admitting Japan to the world community at the San Francisco Conference, the representative of SL, former President J.R.Jayawardene then as the Finance Minister stood by this noble Buddhist principle. Furthermore, for the Tamils, even the Holi festival is also about forgiveness by meeting and making up with ruptured relationships. Therefore, it is incorrect to argue that ‘the idea that confession and forgiveness is not part of the Sri Lankan culture’.

As stated by Professor Kader Asmal, a Professor of human rights at the University of the Western Cape and a politician, arguing against human rights organisations, the Nuremburg approach proposed by human rights organisations would not be conducive to reconciliation and should be considered as a witch hunt even in the Sri Lankan context. 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 Sinhala-Buddhist 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?

Furthermore, the proposal to set up two moral status for the LTTE and the government forces in the proposed inquiry is also incorrect. Only a single moral status should be set up as it was in the South African context and any discrimination in applying two moral status could undermine reconciliation.

Moreover, if we want to adopt the principle in SA, an inquiry should consider not only the final phase of the War against the LTTE and at least the period from 1975 (the year Mayor of Jaffna Alfred Duraiappah was assassinated) to May 2010 should be considered. This would assist in finding probably the absolute truth that the seekers want.

Attempts were there

In fact, there were attempts to implement a TRC style model or at least to use its principles in Sri Lanka. For example, addressing the Global Tamil Federation’s 3^rd Anniversary Conference in 2013 held at the British Parliament in London, the Tamil national Alliance Parliamentarian Mr. M. A. Sumanthiran, for example, said; “It is said that Truth is the first casualty of war. I want to say today that Truth is also the first step in reconciliation. It is in recognition of this principle that after the struggle to end Apartheid in South Africa, the process that united the country was called the “Truth and Reconciliation Commission”.[16]

Furthermore, giving an interview to a newspaper, the GTF Spokesperson Suren Surendiran in 2013 expressed his hopes in implementing a South African government mediated accountability process in Sri Lanka[17] and the proposed basis for the accountability process was the South African TRC experience.

Therefore, people who argue against the applicability of the South African TRC principles in Sri Lanka now want to achieve nothing, but to kill President Mandela in Sri Lanka by destroying the trust he placed on universally accepted principle of forgiveness.

War-Crimes Vs Reconciliation

In my opinion, however, 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. Proposing the issue of ‘Reconciliation’ with the issue of ‘Accountability’ is a mistake when evaluating it against the post-war context in Sri Lanka.

The reason is that such an approach generates counterproductive effects on initiating a process of sustainable reconciliation, because bringing the war-crime accountability issue forward ignites the flare of the Sinhalese anger over international actors, human rights groups and the Tamil diaspora as the majority of Sinhalese hail the military victory over LTTE and see contributors to the victory as ‘heroes’.

However, if the United Nations Human Rights Council (UNHRC) wants to initiate a domestic inquiry in SL as proposed by the USA this time, a mechanism similar to the South African TRC should be adopted and ‘forgiveness’ should be used as the principle of the process. If not, President Mandela would be killed in Sri Lanka.

Reference

[1]Miriam Makeba, interviewed on the South Bank Show, ITV London, 9, April 1995.

[2]Nelson Mandela, Long Walk to Freedom, Little, Brown and Co, 1994, p. 604.

[3]Brian Frost, Struggle to Forgive, London, Harper Collins, 1998, p. 140.

[4] Professor Andre du Toit, (ed) Alex Boraine, Janet Lavy, The Healing of the Nation? Justice in Transition 1995, p. 98

 [5] [http://www.tamilguardian.com/article.asp?articleid=12937]

[6][https://www.colombotelegraph.com/index.php/amnesty-wants-u-n-probe-into-sri-lanka-war-crimes/]

[7] https://www.ceylontoday.lk/51-95570-news-detail-sumanthiran-admits-backdoor-meeting-in-london.html

[8]http://reconciliationandrightssrilanka.wordpress.com/2012/03/10/national-policy-on-reconciliation-working-document-draft-one/

[9] South African Times, 5 July 1995, p. 1

[10] Phillip van Niekerk, The Observer, 24 December 1995, p. 6

[11] South African Times, 3 August 1994, p. 2

[12] Ibid. 2 November 1994

[13] Professor Hendrik van der Merwe, The Argus, 13 November 1995

[14] See, Brian Frost, Struggle to Forgive, London, Harper Collins, 1998, p. 144

[15] Ibid. pp. 144-145

[16] [http://www.eyesrilanka.com/2013/03/01/1002/]

[17] [http://www.globaltamilforum.org/media/news/we-remain-hopeful-gtf.aspx]