{"id":152233,"date":"2015-10-14T17:36:23","date_gmt":"2015-10-14T12:06:23","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=152233"},"modified":"2015-10-21T14:17:16","modified_gmt":"2015-10-21T08:47:16","slug":"sri-lanka-the-politics-of-justice","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/sri-lanka-the-politics-of-justice\/","title":{"rendered":"Sri Lanka & The Politics Of Justice"},"content":{"rendered":"

By Mark Salter<\/span><\/a> –<\/strong><\/p>\n

\"Mark<\/a>

Mark Salter<\/p><\/div>\n

Truth and reconciliation is a project that inevitably needs to balance short-term politics against long-term justice. There are signs that Sri Lanka’s new government understands the challenges involved.<\/strong><\/p>\n

For Sri Lanka it\u2019s been something of a roller-coaster start to the autumn. First, mid-August parliamentary elections handed former president Mahinda Rajapaksa his second defeat of the year at the polls, confirming that the new political era heralded by Maithripala Sirisena\u2019s surprise victory in January presidential polls really was the genuine article. Then almost before the country had time to draw breath it was catapulted into the international arena, in the shape of the UN Human Rights Council (UNHRC)\u2019s 30th session that opened in Geneva in mid-September.<\/p>\n

Ever since Sri Lanka\u2019s 26 year long civil war reached its bloody, tumultuous climax in May 2009 the question of what really happened during the conflict, and in particular who was responsible for the atrocities committed during its final stages has been a constant bone of contention on the international, no less than domestic plane. As a result, up to now the HRC has been a, if not the forum where these issues have been publicly \u2013 and often fiercely \u2013 debated.<\/p>\n

Their patience finally worn down by the Rajapaksa government\u2019s intransigent refusal to engage seriously with the international community over war crimes allegations, in March 2014 a (narrow) majority of the HRC\u2019s 47 member states voted to set up an investigation by the main UN human rights body (OHCHR).<\/p>\n

Specifically it was tasked with looking into a period stretching from early 2002 \u2013 when the Sri Lankan government and rebel Liberation Tigers of Tamil Eelam (LTTE<\/span><\/a>) signed the Norwegian-brokered Ceasefire Agreement (CFA) \u2013 up to 2011. In other words the same period covered by the Lessons Learnt and Reconciliation Commission (LLRC<\/span><\/a>), a body established by Rajapaksa in 2012 as a domestic alternative to an international investigation.<\/p>\n

The UN \u2018Office Investigation on Sri Lanka\u2019 (OISL) as it\u2019s known, was duly set up in late 2014, and despite a barrage of criticism from Colombo \u2013 backed up by a refusal to allow its investigators into the country \u2013 soon got down to the serious work of investigation.<\/p>\n

UNHRC Geneva session opens<\/strong><\/p>\n

By the time the HRC\u2019s 30th Session opened in Geneva two things were clear. First, that OISL\u2019s final report would be presented as promised by High Commissioner Zeid al-Hussein in March, when he agreed to the newly-installed Sirisena administration\u2019s request for a six-month deferral to give it time to begin getting its domestic house in order. Second that the US, with support from the UK among others, would be tabling a resolution outlining a series of practical recommendations for advancing the twin causes of accountability and reconciliation in Sri Lanka.<\/p>\n

Although Zeid devoted some of his opening remarks to the HRC Session to the OISL report, the first real act in Sri Lanka\u2019s Geneva drama was an opening statement by Foreign Minister Mangala Samareweera. Underscoring the country\u2019s profoundly changed political circumstances \u2013 in particular what he called the \u2018return of centrists to power\u2019 and \u2018resounding defeat of extremists on both sides\u2019 at the polls \u2013 Samaraweera called for sceptics to be \u2018patient\u2019 with the new administration\u2019s assertions that it was genuinely different from the previous dispensation, and in particular not to judge it by the \u2018mistakes and distortions of the past\u2019.<\/p>\n

He went to outline a proposed four-tiered domestic accountability mechanism: a Commission for Truth, Justice and Reconciliation, to be established in consultation with South Africa; an Office of Missing Persons, set up by statute and in line with \u2018internationally-accepted standards\u2019; what he termed a \u2018Judicial Mechanism with a Special Counsel\u2019; and an \u2018Office of Reparations\u2019 \u2013 both also placed on a statutory footing. A couple of days later Samaraweera also explained that Colombo envisaged an 18-month timeframe for getting the new set of institutions up and running, starting with three months of consultations lasting from mid-October until the end of January 2016.<\/p>\n

Overall many observers concurred that the Foreign Minister had made a good stab at navigating his way over an indubitably tricky set of obstacles. Keeping both international sceptics and Tamil critics happy while simultaneously managing to hold at bay Sinhalese nationalists wary of the slightest hint of \u2018sovereignty sell out\u2019 was indeed no small feat. Like other aspects of the Geneva HRC sessions, however, for the Sri Lankan authorities pleasant surprise was pretty much the order of the day.<\/p>\n

OISL report goes public<\/strong><\/p>\n

On 16 September the High Commissioner went public with the OISL Report<\/span><\/a>. Zeid noted that based on investigation of the nine year period in focus, the report concluded that crimes \u2018amounting to war crimes\u2019 had been committed during the final phase of the war \u2013 and most likely in earlier stages as well. In response to this finding, moreover, the report calls for the establishment of a special \u2018hybrid\u2019 court to investigate individuals with alleged responsibility for the worst atrocities.<\/p>\n

There is of course plenty more than the headlines to this carefully-researched 250 page report. Its account of the war\u2019s final stages is as detailed as it is grim. And while there is perhaps little in it that\u2019s new to seasoned Sri Lanka watchers, the report is nonetheless the most sustained and comprehensive account to date of the war\u2019s bloody finale. What\u2019s really new, however, is the report\u2019s provenance. OISL\u2019s investigation was originally mandated, and its report now accepted, by the 47-member UNHRC. In this sense it is, as one commentator argued, the culmination of six years of intense international scrutiny of Sri Lanka.<\/p>\n

\"A<\/a>That said there were some important limitations on the enterprise, notably Colombo\u2019s refusal to allow in the UN investigating team \u2013 a response from the Rajapaksa regime that was continued by the Sirisena administration. Thus the UN team was forced to rely chiefly on the testimony of witnesses outside the country \u2013 of whom there are many, notably in the Tamil diaspora \u2013 along with previous reports such as that produced by a 2011 UN Panel of Experts. In addition \u2013 a first for the UN \u2013 the investigation was assisted by the Sri Lanka Monitoring Mission (SLMM), a Nordic body established in the wake of the 2002 CFA to oversee both sides\u2019 compliance with its provisions.<\/p>\n

Liaison with SLMM members helps to explain the OISL report\u2019s detailed account of a range of abuses committed by the LTTE. For example the Nordic monitors\u2019 documentation of the Tiger\u2019s systematic forced child soldier recruitment practices in the North and East, as well as its determined efforts to eliminate Tamil opposition in areas under its control provided the basis for the report\u2019s treatment of these issues.<\/p>\n

Interestingly, OISL have put the \u2018naming and shaming\u2019 limitations constraining many UN investigations to good use. Their report stops short of naming or otherwise directly accusing individuals of having committed war crimes. At the same time it provides a detailed overview of, for example, the location of specific Sri Lankan Army divisions at the time atrocities are alleged to have been committed. In this sense OISL appear to be leaving the path open to follow-up criminal investigation and eventually charges to be brought against those in wartime leadership positions – should there be the political will to do so.<\/p>\n

An example of the way the report indirectly points the finger by \u2018locating\u2019 Army commanders and units concerns the notorious \u2018White Flag<\/span><\/a>\u2019 incident at the war\u2019s end, when a group of over 40 top LTTE leaders surrendered to Army forces on 18 May 2009 following protracted negotiations with the government, much of it via intermediaries.<\/p>\n

Some hours later it was confirmed that the entire group were dead \u2013 murdered by the security forces in cold blood following their surrender, it is alleged. All in all, by (correctly) stressing that it is a human rights-based, not a criminal, investigation of war crimes charges, OISL may be seeking to clear the way precisely for the latter.<\/p>\n

On a related tack the report points to \u2018good evidence\u2019 for what it calls \u2018system crimes\u2019. It proceeds to enumerate a list of crimes \u2013 committed on both sides \u2013 it considers as falling into this category, ranging from \u2018unlawful killings\u2019, enforced disappearances, torture and gender-based violence to abduction, \u2018use of children in hostilities\u2019 and denial of humanitarian assistance.<\/p>\n

The horrific detail of many of these crimes apart, their description as \u2018system crimes\u2019 is, as Zeid underlined, intended to point to the fact that the alleged atrocities were committed not simply on the whim of individual commanding officers, but in response to top-level directives. These, then, are precisely the OISL findings that ought to be worrying Mahinda Rajapaksa, his brother and ex-Defence Secretary Gotabaya Rajapaksa, General Sarath Fonseka, Army Commander-in-Chief during the war\u2019s final years along with a number of other senior military figures. The picture is different on the other side simply because there\u2019s hardly anyone to point the finger at: all but a tiny group of senior LTTE figures were wiped out during the war\u2019s final stages.<\/p>\n

Addressing a long-running debate regarding the appropriate means of addressing wartime accountability in Sri Lanka, the report\u2019s chief argument is that the structural weaknesses of the country\u2019s legal system following decades of perversion and subversion, notably under Rajapaksa, prevailing distrust \u2013 notably among Tamils \u2013 of its capacity to act impartially, combined with clear evidence of its inability to act on, for example, the findings of a succession of official commissions of enquiry, mean that it is simply not fit for the purpose.<\/p>\n

Hence the report\u2019s proposal for a hybrid court combining international and domestic judges \u2013 a proposal known to be favoured strongly by sections of the international community as well as key Tamil political forces inside and outside the country, but viewed with extreme caution by Colombo authorities chary of any suggestion that the country\u2019s judicial sovereignty might be undermined.
\nGeneva resolution drafting<\/p>\n

Following the report\u2019s release next up was the arduous process of negotiating agreement on a related UNHRC resolution. A draft tabled on 18 September by the US \u2013 which had committed itself in advance to achieving a consensus text with Colombo \u2013 proposed a hybrid court in terms that were functionally identical to OISL\u2019s. Reports of the reaction in Colombo were mixed. While some commentators suggested that Samaraweera and colleagues were pleasantly surprised by the overall tone and substance of the lengthy draft resolution, others suggested they were seriously concerned by the references to a hybrid court.<\/p>\n

A week of high-profile diplomatic horse-trading ensued, with the Sri Lankan side playing hardball in negotiations over the text in Geneva while reportedly adopting a more conciliatory tone in closed-door discussions. The outcome was negotiations that went right down to the wire, and a final draft including an outline of the new accountability court\u2019s composition that made significant concessions to Colombo\u2019s vocally-stated preferences.<\/p>\n

Gone was the reference to a hybrid court, replaced by a Sri Lankan \u2018Judicial Mechanism with a Special Counsel\u2019 that would encompass \u2018Commonwealth and other foreign judges\u2019 \u2013 the draft referred to \u2018international\u2019 judges \u2013 defence lawyers and authorized prosecutors and investigators\u2019. The Sri Lankan side also managed to secure inclusion of several paragraphs pointing to progress on reconciliation achieved in the country since January 2015, as well as a reference to LTTE crimes detailed in the report.<\/p>\n

Beyond the hybrid\/domestic court issue the resolution includes some fairly hard-hitting paragraphs on, for example, the need to address allegations of torture and sexual violence by the military as well as initiate security sector reform. In addition, it welcomes Colombo\u2019s \u2018positive engagement\u2019 with Zeid\u2019s office since assuming office, and expresses support for the four-tiered accountability mechanism earlier outlined by Samaraweera.<\/p>\n

There are also important references to the need to strengthen witness protection, follow through on stated intentions to repeal the Prevention of Terrorism Act (PTA) and continue down the path of seeking a final political settlement to the conflict that encompasses \u2018devolution of political authority\u2019.<\/p>\n

With an eye to prospective indictments of wartime military personnel, moreover, an important opening paragraph, whose wording bears all the marks of hard-nosed diplomatic bargaining, states that a \u2018credible accountability process\u2019 will \u2018safeguard the reputations of those, including within the military, who conducted themselves . . . with honor and professionalism\u2019.<\/p>\n

While this is hardly the sort of language calculated to endear the resolution to human rights activists who have documented the torture and systematic abuse of civilians they allege still continues in the Tamil-dominated North, for the government it may help to bolster the case for setting up a domestic accountability mechanism. This is true not least amongst the island\u2019s majority Sinhalese population, who have long been accustomed to viewing the Army leadership as heroic liberators of the nation from the scourge of terrorists intent on dividing the island rather than prospective war criminals.<\/p>\n

Finally, the resolution calls for an \u2018oral update\u2019 by Zeid in June 2016, and a comprehensive report to the UNHRC in March 2017. Many see this as a critical provision, since it ensures that Colombo\u2019s performance in implementing reforms doesn\u2019t disappear off the international radar screen. From the government\u2019s perspective, moreover, freed from facing further potentially hostile Geneva resolutions in the near future, it will be in a position to channel its energies into implementing wide-ranging commitments on accountability and reconciliation.<\/p>\n

Resolution responses<\/strong><\/p>\n

Responses to the resolution, which was eventually passed without recourse to a vote in Geneva on 2 October, varied. Unsurprisingly US Secretary of State John Kerry, who made a high-profile official visit to Sri Lanka in May \u2013 the first in over 20 years by such a high-level US official \u2013 and who has since made consistently positive noises about the reform process initiated by the Sirisena administration<\/span><\/a>, welcomed the resolution, in particular Sri Lanka\u2019s decision to co-sponsor it<\/span><\/a>.<\/p>\n

This latter fact, announced by Colombo in tandem with the release of the revised resolution, surprised some. Not only because this was not a formal requirement on Sri Lanka but also because by doing so Colombo bound itself more tightly to the need to demonstrate clear results from its verbal commitments to furthering reconciliation and accountability.<\/p>\n

Responding to the resolution Foreign Minister Samaraweera stressed \u2018openness\u2019<\/span><\/a> to different ideas of how to implement its most important provisions. Concerning the precise nature of the judicial mechanism to be established, for example, in a (Sri Lanka) Sunday Times interview he suggested that it \u2018must be a credible mechanism which is acceptable to all concerned.\u2019 \u2018Within those parameters\u2019, he continued, however, \u2018we leave our options open for discussion\u2019.<\/p>\n

In clear contrast, to date Prime Minister Wickremesinghe\u2019s account<\/span><\/a> of the HRC resolution\u2019s implications to local audiences has strongly emphasized the domestic character of the proposed judicial mechanisms, with foreign help to be sought purely to ensure their \u2018efficient functioning\u2019. And in perhaps his most revealing comment in this context Wickremesinghe maintained that \u2018everyone agrees we should find out the truth.\u2019 At the same time, he argued, \u2018finding out that truth means reconciliation [must not] suffer\u2019.<\/p>\n

The Tamil National Alliance (TNA), the largest Tamil party in the newly-elected parliament, gave the OISL report a guarded welcome<\/span><\/a> \u2013 the \u2018best possible\u2019 outcome that could be achieved on the \u2018basis of a consensus\u2019 as party leader R. Sampanthan put it. In a significant shift the TNA also announced that it would be leading Tamils in some soul-searching regarding \u2018our own community\u2019s failures and the unspeakable crimes committed in our name\u2019 \u2013 a clear reference to the LTTE\u2019s behaviour during the conflict.<\/p>\n

In particular its treatment of Tamil civilians \u2013 precisely the people it was supposedly defending \u2013 in the war\u2019s final stages, including forced child recruitment, placing their forces among the civilian population and thus inviting attacks on them, violently preventing civilians from escaping the war zone and so on.<\/p>\n

In their own way both pronouncements were firsts for the Tamil community, opening up new possibilities of inter-ethnic dialogue. They were also remarkably restrained in view of what commentator Jude Fernando<\/span><\/a> describes as Tamil\u2019s \u2018bitter experiences\u2019 with no less than 18 official government commissions established between 1963 and 2013 to investigate violence and injustice against the community, whose actual impact has by and large ranged minimal to non-existent.<\/p>\n

Across the ethnic divide, Rajapaksa and a few other prominent nationalists apart<\/span><\/a>, to date the Sinhala response to the OISL report has been markedly restrained. One potential line of attack has, however, opened up in the form of a constitutional challenge to the proposed new court. But in response President Sirisena has stressed that all provisions of the UNHRC resolution are firmly in line with the country\u2019s Constitution.<\/p>\n

Whatever the formal legal determinations, and despite the cautious way in which the resolution frames external involvement, giving foreign judges and legal personnel any sort of role is in the proposed court looks set to provide a future rallying point for forces opposed to such alleged infringements of national sovereignty \u2013 Rajapaksa included.<\/p>\n

Sinhalese challenges<\/strong><\/p>\n

A key question now is whether the majority Sinhalese community proves itself able and willing to go down a path of critical self-examination comparable to that proposed by the TNA for the island\u2019s Tamil population. For its part the government is understandably anxious to avoid setting in motion anything that might provoke a backlash among the majority community. Moreover, as a New York Times leader recently opined, the government\u2019s rejection of the hybrid court proposal potentially places it in a \u2018stronger position to \u2018sell the OHCHR report\u2019s other recommendations to the Sinhalese population\u2019 \u2013 an important step forward if it happens.<\/p>\n

At the same time it seems clear that nudging the majority population towards acceptance of the need for an honest examination of the wartime past requires leadership. Moreover, this isn\u2019t going to happen either overnight, or by itself. It will need time. Encouragingly, however, there\u2019s a historical precedent. In the mid-1990s, on the back of strenuous official attempts to conclude a peace deal with the LTTE President Chandrika Kumaratunga initiated the Sudu Nelum (\u2018White Lotus\u2019) movement, whose main goal was to persuade the majority Sinhala Buddhist population of the overarching imperative of achieving peace with the Tamils. The movement proved a real success: as Kumaratunga proudly told me in the course of an interview, over a two year period Sudu Nelum\u2019s efforts resulted in an increase in popular support for peace moves from 20 to almost 70 per cent.<\/p>\n

And the leading figure in Sudu Nelum? Step forward Mangala Samaraweera, then a junior minister in the Kumaratunga administration. What\u2019s more, if he and the Sirisena administration should decide to go down the path of leading from the front in bringing the Sinhalese community to accept the notion of confronting the past, warts and all, they will supported by a bedrock of civil society organizations able and willing to assist in the task.<\/p>\n

Encouragingly in this context Jehan Perera<\/span><\/a>, Director of the National Peace Council and a long-time proponent of reconciliation between the majority and minority communities \u2013 the latter including Muslims and well as Tamils \u2013 recently suggested that early signs point to the fact that Wickremesinghe seems to have learned from his earlier failure, following the 2002 cease fire agreement, to engage civil society in helping to \u2018sell\u2019 the peace process to the majority population.<\/p>\n

Even as negotiations over the UNHRC resolution were continuing in earnest, the Prime Minister chaired meetings with the heads of media organizations and civil society activists to review developments and discuss how best both to defeat \u2018communal groups and religious extremists\u2019 and communicate the outcomes of the Geneva deliberations.<\/p>\n

It is of course true that when it comes to enacting legislation to deal with charges of war crimes and crimes against humanity, in common with other countries Sri Lanka\u2019s penal code is simply not designed to address such charges. Moreover, domestic legal experts are divided on whether the penal code can be adapted to accommodate the kind of crimes detailed in the OISL report.<\/p>\n

At the same time, even if the hybrid court recommended by OISL has been ruled out \u2013 at least in name \u2013 by the recent UNHRC resolution, in practice there\u2019s plenty Sri Lanka can learn from experience with hybrid courts elsewhere: Cambodia and Sierra Leone, for example, where UN-mandated hybrid legal entities were set up in the aftermath of devastating conflicts.<\/p>\n

Transitional justice in question<\/strong><\/p>\n

All in all it is important to bear in mind the fact that by its very definition, transitional justice implies compromises and as such the delivery of less than perfect justice. In transitional contexts, in other words, no one, neither victors nor victims, gets everything they want, and quite possibly deserve. On the one hand there is clearly a fundamental need to avoid the pursuit of what is perceived as purely \u2018victors justice\u2019. But at the same time \u2013 and here\u2019s the rub \u2013 if national reconciliation is considered an overriding objective, it may be that some of victim\u2019s legitimate demands for justice have to be deferred until satisfying them becomes politically practicable.<\/p>\n

In this context, too, there\u2019s a need to bear in mind the real political risks potentially involved in pursuing justice. An instructive example in this regard is the Croatian General Ante Gotovina. Following a 2001 announcement that the ex-Yugoslavia War Tribunal (ICTY) had issued sealed indictments against him, Gotovina rapidly assumed the status of nationalist symbol and rallying point for all who rejected criticism of Croatian forces\u2019 conduct in the Balkan wars. In a similar vein, it doesn\u2019t take too much imagination to conjure up the kind of reaction that the indictment or arrest of wartime Sri Lankan military leaders such as Sarath Fonseka might still provoke among the Sinhalese population.<\/p>\n

The implication, and lesson learned from other experiences here is that when framing a country\u2019s transitional justice and reconciliation agenda, some key aspects of justice may have to wait until such time as the country\u2019s judicial institutions \u2013 and in particular its civil-military relations \u2013 have undergone the thorough-going transformation needed to allow them to deal adequately (and safely) with them. In many ways it is not pleasant to say this: but it may be true nonetheless. And there is hope, too. For the victims of General Pinochet in Chile, Hiss\u00e8ne Habr\u00e9 in Chad, Charles Taylor in Liberia and Sierra Leone, and Radko Mladic in Bosnia, the wait for justice has been a long one. At the wait\u2019s end, however, has come real justice in visible, tangible form.<\/p>\n

This is not, however, to advocate a wait-and-see attitude to delivering justice. There are concrete things the Colombo government can do now, for example to bolster low levels of confidence \u2013 notably among Tamils \u2013 in its commitment to go beyond words to deeds. A good start would be over consultation. In his keynote speech to the UNHRC Samaraweera announced a three-month period of national consultation on the set of accountability mechanisms he outlined. (By contrast, Sirisena and Wickremesinghe were both solicitous in consulting the country\u2019s military leadership in advance of the Geneva UNHRC session.)<\/p>\n

The question now is whether these consultations will prove to be a cosmetic, Colombo-based exercise in public image management, or whether there will be a real effort to listen to the views of the North East\u2019s Tamil population, which bore the brunt of brutalities in the civil war\u2019s final phase \u2013 and some of whom complain that they have remained under de facto military occupation by Sri Lankan security forces to this day.<\/p>\n

In the overall scheme of things such consultations may well constitute a small part of the jigsaw. At the same time they could represent a necessary, and symbolically critical, effort to involve victims, no less than victors, in the process of addressing the painful legacy of the country\u2019s civil war.<\/p>\n

*Mark Salter –\u00a0A teacher and BBC journalist by training, over the last 25 years he has worked in a wide range of professional settings including international NGOs, research institutes and intergovernmental organizations. His work has focused on issues of democracy, conflict, reconciliation and diversity management. From 2000 to 2010 he was a senior staff member of International IDEA, an intergovernmental organization supporting democratic consolidation around the world. Since then he has been an independent consultant focusing on the same areas of professional concern.\u00a0\u2018He blogs at www.marksalter.org<\/a>\u2019 \u00a0Mark Salter\u2019s new book, To End A Civil War: Norway\u2019s Peace Engagement in Sri Lanka (Hurst) will be launched at SOAS, London on 28 October.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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