Sri Lanka’s civil war, which had divided the country and taken a huge human toll since its outbreak in 1983, came to a bloody end in May 2009 as the state’s military forces took control of the last redoubts of the Liberation Tigers of Tamil Eelam (Tamil Tigers / LTTE). The charge that the military protagonists in the conflict had committed grave violations of international humanitarian and human-rights law, not least in its brutal final stages, led the United Nations secretary-general to appoint a three-person panel of independent experts to advise him on the issues of legal accountability involved.

The panel’s report, published on 26 April 2011, finds “credible” many allegations of violations by both sides, some of which could amount to war crimes and crimes against humanity; it also concludes that Sri Lanka lacks a political and legal environment conducive to the transparent investigation and prosecution of these violations. The substance of the report is as systematic and as rigorous as can be expected within the panel’s terms of reference, and the absence of cooperation by the Sri Lankan government. Within those circumstances, the report has historic significance as an independent account of what happened at the denouement of the war that directly and plausibly challenges the government’s version of events.  

The panel has been careful to frame its recommendations for credible accountability measures as the responsibility of the Sri Lankan government in the first instance, and to envisage international action only upon the failure of the government to do so. It is also clear, however, that the panel has little confidence in the government’s preparedness to act on its recommendations in a manner that satisfies international best practice. Beyond the recommendations addressed to the Sri Lankan government, therefore, the panel also advised the secretary-general that an “international independent mechanism” impartially to investigate and record the facts of these allegations should immediately be established.  

This particular recommendation has emotive implications for notions of national sovereignty and independence, as reflected in the response by Sri Lanka’s state representatives to the report. Thus it is important to note that the recommendation refers not to the establishment of an international tribunal empowered to try and punish individuals but rather essentially a fact-finding body. Ban Ki-moon’s statement accompanying the publication of the report says that the establishment of such a mechanism would require the consent of Sri Lanka or “a decision from Member States though an appropriate intergovernmental forum” (i.e., the UN Security Council or the Human Rights Council).  

The early reception of the report suggests that there is little chance of it receiving a dispassionate reading. Several predictable, dogmatic responses were already in circulation before its official publication: Sri Lanka’s government, for example, rejected it out of hand, and Tamil diaspora groups welcomed it. It is fair to say that the present Sri Lankan regime and the Tamil diaspora (or at least its more vocal sections) are representative of the more extreme nationalist stances within the Sinhala and Tamil communities.

Those who by contrast seek to elaborate a principled and decent approach to Sri Lanka’s post-war future must for their part resolve a number of moral dilemmas. In relation to post-war reconciliation, and especially the question of criminal accountability as an element of it, these dilemmas are located at the interstices between the legal and the political, and the international and the domestic.

The legal background

In this regard, two key assumptions underpinning the panel’s report are particularly important.

The first is that the international rule of law on humanitarian rules and human rights has an objective reality; the implication is that leaving credible allegations of violations unaddressed in the Sri Lankan case would constitute an assault on the entire regime of international law.

While in recent decades there has been increasing clarity of international humanitarian and human-rights norms (in terms both of substantive rules as well as procedures and institutions for their enforcement), it nevertheless remains the case that the international system of law and politics continues to be essentially wedded to the classical Westphalian model, together with its doctrinal elements such as national sovereignty, non-interference, territorial integrity and the sovereign equality of states.

As a general proposition, therefore, the observance and enforcement of international law remains an obligation of the state as a subject of international law, notwithstanding progressive developments in relation to human rights and duties, legal personality, and international enforcement mechanisms.  

This is not to reify the Westphalian nation-state, nor to accept the hyperbolic claims of sovereignty made by states having things to hide, but merely to acknowledge the reality of the resilience of the state in the existing international order. Consequently, illegal behaviour is addressed rather differently from the way in which it would be within a domestic legal system; and there is therefore a discernibly political element to the pursuit of international legality (as evident in many examples in the recent past, from the international use of force to international individual criminal liability).

If this were not the case, after all, all member-states of the UN would be signatories to the Rome statute of the International Criminal Court. There is also a critical domestic political element, in that the democratic wishes of the people within a state are also relevant to the pursuit of international legality.  

In this light, the panel report’s assumption that the absence of genuine and immediate redress in the form of criminal liability for violators in the Sri Lankan war erodes the credibility and authority of international law seems, at best, idealistic. It could even be seen as a distinctively liberal interventionist (or “cosmopolitanist”) ideological approach in which international norms are accorded a primacy over domestic sovereignty, inviting opposition thereby in ideological and political terms.

This is apparent in the Sri Lankan government’s initial responses in which it was alleged that the acceptance of the report would imply a repudiation of the entire UN system, meaning the established order of sovereign states, and its appeals to states such as China, Russia and India in resisting the purported undermining of those principles.  

The second assumption is the notion that immediate criminal accountability is indispensable to post-war reconciliation. In any context, reconciliation after a protracted conflict is a complex and multifaceted process involving delicate questions of sequence, timing, and trade-offs that may be regarded as unpalatable by some. The report asserts that choosing between models of retributive and restorative justice is a false dichotomy, arguing that both elements are necessary to a legitimate process of reconciliation.

It might be asked, however, whether the insistence on immediate retributive measures as a sine qua non of reconciliation is not itself a false dichotomy. After all, criminal accountability in processes of post-conflict reconciliation cannot be regarded as an absolute concept in law or morality, but rather one that has often been treated as a political variable subject to negotiation. (To cite a familiar example, it would have been very unfortunate if Martin McGuinness had been unable to play the constructive role in the Northern Ireland peace process and now as deputy first minister in the power-sharing executive by a doctrinaire attitude to his terrorist past).      

Admittedly, the basis for the panel’s scepticism arises from the recalcitrant behaviour of the Sri Lankan regime, which refuses to countenance anything other than resources in terms of international engagement with its post-war programme, its militaristic nationalism and ethnic triumphalism, and its intolerance of critique and dissent. Neither its petulance abroad nor its authoritarianism at home gives ground for much confidence that it will display sensitivity to Tamil grievances and aspirations in social reconciliation or in a political settlement.

But in conceiving a reconciliation process, it is necessary to think beyond the regime to the broader social and political values that animate a south Asian society. The fact that the regime is the champion of restorative justice is certainly unhelpful, but that should not blind us to the deeper issues of context. In this regard, the dominant religio-cultural values and sensibilities shared between Sinhala Buddhists and Tamil Hindus do not attach the same premium, at least not temporally, to redemption through responsibility and answerability as in the Judeo-Christian tradition. At least to some extent, this resonant social sensibility explains why the regime is able to command wide support for its resistance to criminal accountability.  

Perhaps unsurprisingly, the hostility to any accountability initiative is clear among the majority Sinhalese, even among those who would not otherwise support the regime. While the panel report is a clear acknowledgment of the suffering they underwent, it is difficult to discern precise contours of opinion about international criminal accountability among those who were at the receiving end of the wartime abuses - the Tamils living in the north of the island (although the Tamil National Alliance, their main vehicle of parliamentary representation, has welcomed the report).

It is also fair to say the Tamils have more pressing problems to worry about in the post-war environment. It is now disconcertingly apparent that the militarisation of all spheres of life in the north is becoming increasingly institutionalised, and moreover, that this is the deliberate policy of the government. The regime is able to implement its policy with regard to the north, and more generally the continuation in force of disproportionate and repressive wartime national-security measures, with virtually no meaningful democratic opposition.  

The political context

It is also unsurprising that the accountability demand is strongest among the Tamil diaspora, especially among those whose Tamil nationalism is synonymous with a commitment to a separate state. The defeat of the LTTE and the death of its leaders mean they have nothing lose by the panel’s adverse observations on the LTTE, and the report thereby becomes an instrument for the settling of scores with the victorious regime in Colombo.

In view of the credible accounts of abuses that have emerged - listed and evaluated according to an expressly stated methodology by the panel - it would be crass and unconscionable to deny the genuine moral outrage that animates many, if not all, of those who are seeking criminal accountability from the alleged perpetrators. But a principled moral approach must also acknowledge the many other political factors that will affect the future of post-war Sri Lanka. Among these is the ineluctable truth that no process of reconciliation can have any hope of success without broad democratic support. It is obvious that there is no such support in Sri Lanka at this time for any initiative involving criminal prosecution and punishment; in fact public opinion is very hostile to any such approach.

This does not necessarily mean that the question of accountability is closed forever. It is possible that over time the accountability issue may be revisited, with greater prospects for success than in the emotionally charged atmosphere of the aftermath of the war. This is borne out by similar experiences elsewhere, such as Germany and Cambodia, in which a moratorium on reopening particularly egregious or traumatic events has in fact ensured that they were more effectively addressed by a succeeding generation more secure in the stability and capacity of their society to resolve major differences.

Yet the nature of the Sri Lankan regime, and especially its post-war conduct, still raises anxieties. The regime’s majoritarian ideological foundations result in a populist and authoritarian approach to government, which is incapable or unwilling to regard as legitimate Tamil (and other minorities’) political aspirations to autonomy, recognition and representation. The regime also uses the autocratic powers of the executive presidency and its comprehensive grip on parliament to tamper with Sri Lanka’s constitutional heritage as Asia’s oldest democracy.

In the state’s relations with the rest of the world, it seems incapable of nuance; it persists in the crude calculation that those who are not uncritically with it must be against it. Moreover, one of the more chilling aspects of its post-war conduct has been the construction of a triumphalist historical narrative enmeshed with Sinhala-Buddhist nationalism, together with the suppression of the space for alternative accounts. The regime’s intemperate response to the secretary-general’s panel is a function of this outlook.  

But it is critical to note that all this is done by a regime enjoying widespread political legitimacy - albeit largely among the majority community, but a democratic majority nonetheless - which stems from successive democratic mandates. The regime’s repeated electoral triumphs are in turn the result of its accomplishment in reshaping the entire political discourse in Sri Lanka according to an “us v them” or “patriot v traitor” dynamic.

During the war, the LTTE represented the obvious, and suitably diabolical, enemy. Now it is the west, the Tamil diaspora, and human-rights groups that are fitted into the role of the “other”, which is fundamental to the regime’s discursive logic. It is from the perspective of these domestic political implications that the uses to which the panel’s report is put must be considered.

The national imperative

It would seem that any further international action on the report would depend on the political vagaries within the councils of the United Nations - and this in the context of “a new cold war of ideas” on human rights. If the international community were able and willing to act on the panel report, the Sri Lankan regime would have to deal with that in the appropriate intergovernmental forums.

Although the Colombo government has so far been successful in repelling international action, notably in the Human Rights Council in 2009, it should also realise that the surest way of sustaining adverse international attention is to continue on the bellicose path it has taken so far. Its reliance on China, Russia, the non-aligned movement, and especially India, is not a reliable insurance policy in all circumstances. 

On the domestic political front, those desiring a more liberal future for Sri Lanka must develop a more sophisticated response. By projecting the panel report and the proposed international mechanism as a form of persecution of Sri Lanka, the regime can mobilise popular support; inflame populist paranoia; portray the opposition, Tamil parties, and civil society as treasonable forces intent on undermining the sovereignty, independence and self-esteem of the Sri Lankan (Sinhala) people; and thus further entrench itself.

So while keeping the “international factor” alive on the domestic political agenda might look like a good way of keeping the regime in check, the state of domestic politics and public opinion mean that this approach also risks eroding the legitimacy of human rights and accountability advocates in the eyes of the majority.

It follows that a better route for the democratic opposition, Tamil political parties and civil society in Sri Lanka to regain lost legitimacy among the populace might be to draw the line at international intervention as well as immediate criminal accountability. This approach entails neither an abdication of Sri Lanka’s international obligations nor a renunciation of the possibility that accountability might be revisited when it is politically feasible; rather, a strategy aimed at depriving the regime of its absolutist patriotic pretensions is also a principled one based on democracy, human rights, popular sovereignty, and constitutional patriotism.

A firm commitment to a Sri Lankan process could create a basis of legitimacy for the regime to be held to account on issues of reconciliation, governance, democracy and pluralism. This in turn would hold out the hope for a constitutional settlement that would better serve all the peoples of Sri Lanka.