Sri Lanka: after war, justice

Luther Uthayakumaran
21 May 2009

The long war in Sri Lanka is, it seems, finally at an end. But for many Sri Lankans, even those who have longed for this day - and for whom the last few weeks have been especially intense - it has not ended in the way that we would have wanted. The prolonged siege in the northeast pocket, the shelling, the further loss of life, the vanquishing of the enemy - all this means that the conclusion of this twenty-six-year war is likely to be defined in terms of military victory alone, with no reference to a political solution and the return of democracy. This too is a tragedy.

Luther Uthayakumaran is a Sri Lankan Australian writer. An earlier version of this article was published in Lines magazine

There is a great responsibility now to make sure that Sri Lanka's future is not defined by the way the war has ended - and that the questions of democracy, justice and accountability are addressed fully in its aftermath. This article is a modest first contribution to that agenda.

The post-war search

There are many ways to view the terrible conflict that has sundered the island since 1983. When the war turned in the 1990s-2000s into a binary battle between the Sri Lankan state and the Liberation Tigers of Tamil Eelam (LTTE / Tamil Tigers), it was ever clearer that for both sides thought and acted solely in terms of the aspirations of states, nationalisms and counter-nationalisms; and that in consequence they regarded the lives of civilians were becoming less and less important. Some of us responded by seeking to establish a position that placed the rights of the individual citizen at the centre of concern.

This outlook had but one result: to see the war as a series of horrendous injustices committed against the citizens of Sri Lanka. This perspective is highly relevant to the war's end: for it suggests that the country and its people cannot - and must not attempt to - recover from the collective trauma without addressing and (where possible) redressing these injustices.

However, there is a good chance that this is precisely what will happen. Soon, the focus will shift to matters of administration, reconstruction, and political "normalisation". The thrust - aided, no doubt, by the decline in international media attention - is the need to "move on", with the implication that progress beyond conflict requires forgetting the past.

Also in openDemocracy on Sri Lanka's war and politics:

Alan Keenan, "Sri Lanka's election choice" (17 November 2005)

Alan Keenan, "Sri Lanka: between peace and war" (14 May 2006)

Nira Wickramasinghe, "Sri Lanka: the politics of purity" (17 November 2006)

Nira Wickramasinghe, "Multiculturalism: a view from Sri Lanka" (30 May 2007)

Sumantra Bose, "Sri Lanka's stalemated conflict" (12 June 2007)

Meenakshi Ganguly, "Sri Lanka under siege" (30 January 2009)

Meenakshi Ganguly, "Sri Lanka's displaced: the political vice" (8 April 2009)

Nirmala Rajasingam, "The Tamil diaspora: solidarities and realities" (17 April 2009)

This pragmatic view has the merit of warning against imprisonment in the past, which itself is a prime source of conflict. But it is also the case that confronting the past - as seen from the examples of Germany and South Africa, among others - is also an essential part of "moving on", and ensuring that the worst experiences will never again recur. In any event, there is a moral imperative in facing what has been perpetrated and experienced; is it right that (for example) a father who saw his 2-year old daughter blown apart by an army shell, or a mother who saw her infant hacked by the LTTE, be told that what happened to them should now be forgotten as the nation needs to "move on"? And could such an attitude, if institutionalised, create the foundation for a peaceful future?

There are thus compelling moral and practical reasons why Sri Lanka should frame what has happened in terms of the wholesale injustices done to its people, and to face them openly in a shared, collective process.

Here, however, a problem arises. Where to look for redress: international war-crime tribunals, local post-war mechanisms, truth commissions...? The fact that the war has ended via the military defeat of the LTTE, it is likely that the primary focus now will be on the crimes of this group. There must proper legal process in this respect: everyone, including the leaders of the LTTE, is entitled to a fair trial (indeed, fair trials are a crucial mechanism of recognition and redress). But the military conclusion to the war means that it is the government side that will pose the greater problem. The members of victorious armies are hardly ever prosecuted for war crimes. This makes it likely that the crimes committed by the Sri Lankan state will now be forgotten, and necessary that a process is established to ensure that they are not.

Two paths to justice

In order to create a sound starting-point for such a process, it may be worth learning from two developments elsewhere in the world.

The first is the attempt by the International Criminal Court (ICC) to prosecute Omar al-Bashir, the president of Sudan, for alleged war crimes and crimes against humanity committed by Sudanese government forces in Darfur (see Martin Shaw, "Sudan, the ICC and genocide: a fateful decision", 11 March 2009).

The fact that Omar al-Bashir is the first sitting president to be charged by the ICC makes the case interesting and relevant. Yet he remains free, and able with impunity to travel to selected countries (such as other member-states of the African Union). In his own way he is presenting a defence - but in the international media rather than in court (see Zeinab Badawi, Hardtalk/BBC interview, 14 May 2009).

The arguments of Sudan's president are not dissimilar to those put forth by the Sri Lankan government when it too is accused by western governments of human-rights violations and war crimes. Colombo's response focuses on the issue of sovereignty (the state has a right to territorial control and to defend itself from internal rebellion) and seeks to shift the blame (it is the rebels who have used terrorist tactics, used civilians as human shields, and employed child-soldiers). Yet the very fact that an effort to prosecute al-Bashir exists and that he feels the need to justify himself are positive trends in the evolution of international justice.

The second international development is the decision of Barack Obama's administration to release the memos written by officials within the United States department of justice during George W Bush's period in office, providing brutal interrogation techniques (that is, torture) with legal sanction. The publication of the "torture memos" was immediately followed by calls for prosecutions of their authors - which President Obama initially resisted, only to relent under pressure. There are legal and other hurdles still to be overcome, but an acknowledgement has been made that prosecutions are at least a possibility.

The US's overall relationship with international law (particularly the ICC) has in recent years been ambiguous at best and abrasive at worst. It is plausible to see the pressure being exerted on the Obama administration as coming lessfrom any reverence for international law and more from a particular democratic tradition within the US. The principle argument seems to be (in Philip Gourevitch's words) "...what all this [the use of torture] has done to who we are?" Amy Davidson echoes the point in outlining the "one defense...against the charge that we are a nation of torturers", namely "our common, native outrage at these crimes."

The next journey

If it is difficult to see how these two processes will unfold in the weeks and months ahead, it is easier to recognise the different traditions that seem to be driving them. The momentum of the first - from the Nuremberg trials to the Rome statute which set up the ICC - is the desire to extend the scope of international justice, to refine international responses to war crimes, and to establish international jurisdictions. The momentum of the second is more an appeal to a particular internal tradition of right conduct appropriate to American ideals.

These parallel processes offer an interesting sidelight on how Sri Lanka might deal with the painful injustices of its long war. On one side, appeals are already being made for international investigations into war crimes in the country; on the other,  the question arises as to whether the society as a whole can summon a collective sense of "native outrage" over the crimes of the last three decades.

Can Sri Lankans now find something within ourselves - a shared set of internal resources and traditions - as a basis for examining the crimes committed by Sri Lankans against Sri Lankans in Sri Lanka? Or has the effect of this devastating and divisive war been to destroy even the possibility of a single, collective moral voice? The answer to these questions will help to shape Sri Lanka's post-war journey.

Also in openDemocracy on conflict and international justice:

Eóin Murray, "'Tear down that wall!' The world court and Israel" (29 July 2004)

Anthony Dworkin, "The Hague tribunal after Milosevic" (14 March 2006)

William Schabas, "The enigma of the International Criminal Court's success" (17 February 2006)

Nick Grono & David Mozersky, "Sudan and the ICC: a question of accountability" (31 January 2007)

Anthony Dworkin, "The law and genocide: Bosnia, Serbia, and justice" (2 March 2007)

Ben Kiernan, "Blood and soil: the global history of genocide" (11 October 2007)

Nick Grono, "The International Criminal Court: success or failure?" (9 June 2008)

Gérard Prunier, "Sudan in a fix" (26 June 2008)

Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy" (14 July 2008)

Victor Peskin, "The Omar al-Bashir indictment: the ICC and the Darfur crisis" (15 July 2008)

Marlies Glasius, "What is global justice and who is it for? The ICC's first five years" (21 July 2008)

Gérard Prunier, "Sudan's Omar al-Bashir: a useful war criminal" (15 October 2008)

Conor Gearty, "Israel, Gaza, and international law", 21 January 2009)

Eyal Weizman, "Lawfare in Gaza: legislative attack" (1 March 2009)

Martin Shaw, "Sudan, the ICC and genocide: a fateful decision" (11 March 2009)

Marlies Glasius, "The ICC and the Gaza war: legal limits, symbolic politics" (25 March 2009)  

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