Nadeshda Jayakody

To Prosecute or Not to Prosecute: The Need for Justice in Post-Conflict Sri Lanka

Articles & Opinions | December 13, 2017 | ,

UN Photo/Eskinder Debebe

At the close of his visit to Sri Lanka in late October 2017, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr Pablo de Greiff concluded that Sri Lanka “continues to deprive itself of the benefits of transitional justice.” In 2015, the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka. By virtue of its co-sponsorship, the government agreed to, inter alia, establish a judicial mechanism to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. This mechanism would include involvement of international experts, including foreign judges. The government’s commitment was welcomed by the international community, but more importantly by Sri Lankan rights groups representing victims who had suffered immensely because of the conflict. It also reflected a noticeable policy change between the current government and the former government led by President Rajapaksa that had rejected allegations of violations by the government and its forces, let alone calls for their prosecution.

The current government led by President Sirisena has kept some of its promises by, for example, establishing an Office of Missing Persons (OMP) mandated with several powers, including to investigate disappearances; order relevant authorities to grant reparations to missing persons and/or their families; and refer matters to prosecuting authorities. Yet, no progress has been made to fulfill the criminal accountability element of transitional justice by establishing a special court to investigate and prosecute alleged perpetrators. In order to ascertain the reasons for this lack of progress, and whether prosecutions are a necessary component of a holistic approach to transitional justice in Sri Lanka, it is important to first explore the country’s war context.

Contextual background

For nearly three decades Sri Lanka experienced a civil war between the government and the Liberation Tigers of Tamil Eelam (LTTE), with other groups intermittently involved. The LTTE was a militant group fighting for an independent state for the Tamil people in the north and east of the country. According to Shanna Kirschner in her book, Trust and Fear in Civil Wars: Ending Intrastate Conflicts, the war was fueled by a number of factors, including Tamil discrimination experienced at the hands of a Sinhalese-majority State, and experiences of unpunished violence against Tamils. The LTTE waged a terror campaign, killing thousands of civilians and forcibly recruiting adults and children. In 2009, the conflict came to an end militarily when the government forces captured and killed the leader of the LTTE and reclaimed territory controlled by the group. Many LTTE fighters were killed during the war or continue to be prosecuted under the Prevention of Terrorism Act (1978) in its aftermath. The events that occurred during the final days of the war are highly contested, but a 2015 report to the UN Human Rights Council (UN report) found abuses by the LTTE as well as by the former government and the military. Further, civilian deaths during the last phase are estimated at 40,000. The State is allegedly responsible for attacks on civilians and civilian objects; arbitrary arrests and detention; torture; enforced disappearances; and extrajudicial killings in the period between February 2002 and November 2011. The former Rajapaksa government that oversaw the final stages of the conflict, and many Sinhalese nationalists (many of whom supported Rajapaksa), vehemently rejected the report’s findings. In fact, a truth commission set up by Rajapaksa in 2010, the Lessons Learnt and Reconciliation Commission (LLRC), concluded that the military’s strategy during the last phase was satisfactory and protected civilians. The LLRC’s composition and findings were criticized for not being independent.

Why the hesitation to set up a special court?

It is against this backdrop that Sirisena’s government came to power in 2015, committing to foster reconciliation between the different ethnic communities through concurrent constitutional and economic reforms, and a transitional justice agenda that includes setting up a special court with international participation. Since then, the government has gradually backtracked on the latter commitment by first asserting there would be no international participation in prosecutions and then that no “war heroes”- military personnel who fought the LTTE – will be touched.

There are two main reasons for this new position. First, the social and political climate is not wholly conducive to prosecuting alleged perpetrators within the former government and its forces. Many in the majority ethnic Sinhalese community are opposed to prosecuting members of the military, grateful for their role in ending what seemed like an eternal and unwinnable war against the LTTE. Second, Sinhalese nationalists are both shaping and exacerbating the narrative that action against the military is anti-Sinhalese and a bow to international pressure. For instance, the establishment of the OMP was characterized by Rajapaksa as a betrayal of the armed forces and the country as a whole.

Even certain proponents of transitional justice measures worry that prosecutions would be used by Sinhalese nationalists and the former leader to gain political relevance and undermine reconciliation efforts by the government, including Tamil autonomy.  They argue against immediate prosecutions, instead advocating for reparations and the setting up of a truth commission first with prosecutions to follow. Those adhering to this view suggest that by establishing the truth first, the Sinhalese majority will realize that violations by the military and former government affected not only Tamils but all Sri Lankans. This will then engender greater buy-in for prosecutions, particularly from the Sinhalese. However, there are problems with this ‘truth today, justice tomorrow’ approach.

Why are prosecutions an important part of Sri Lanka’s transitional justice agenda and necessary now?

Transitional justice is unique to each context and there is no one size fits all approach. While having a truth commission first with a judicial mechanism to follow may have been successful in some countries, such as Peru and Argentina, it is unlikely to work in Sri Lanka for three main reasons. First, pushing prosecutions to the back burner fails to recognize that the Tamil fight for autonomy not only stems from discrimination but also from unpunished violence that occurred against Tamils for decades by various actors.

While a truth commission and reparations are central elements for people to commence the healing process, so too is criminal accountability, especially given one of the root causes of the conflict in Sri Lanka: non-accountability for past crimes.  As Special Rapporteur, Pablo de Greiff noted, a comprehensive approach to transitional justice is important for reconciliation and preventing the recurrence of violations. Without addressing all aspects of transitional justice, the government risks the possible reemergence of instability and violence in the future.

Second, as a result of the LLRC, which lacked independence and credibility, truth commissions are viewed with caution by many in the Tamil minority. Thus, if the government were to establish a truth commission before a court as certain people advise, or step back from delivering a special court altogether, this will likely reduce the small level of trust that victims, especially Tamils have in State institutions.

Third, a delay in setting up a judicial mechanism could be exploited by hardliners seeking to intensify concerns about prosecutions within the Sinhalese majority. For example, when the government was slow to set up the OMP, the former President used that time to promulgate the idea that the Office will lead to prosecutions, betraying the armed forces and the country.

Avoiding the horns of the dilemma

So how can prosecutions occur now, concurrently with a truth commission despite the apparently hostile social and political climate?

First, the government could be clear about the kinds of crimes that a court will address, and a prosecutor could establish a prosecutorial strategy that takes into account social and political realities. By enunciating a well-defined approach, the government could dispel some of the myths about criminal accountability put forward by nationalists, discussed above. As one report outlines, if a prosecutorial strategy communicated that military personnel who conducted themselves correctly will not be indicted, this would likely alleviate some of the concerns that the public may have and increase social and political buy-in. So too would a strategy that initially focused on prosecuting war crimes affecting all ethnic communities, like enforced disappearances. Second, the government and local NGOs should start or continue to educate the public on why prosecutions, along with other measures, are important for healing and reducing the likelihood of future violence. In short, these measures are beneficial to Sri Lankans from all backgrounds.

What could a special court look like?

As mentioned before, President Sirisena has backpedaled on his commitment to contemplate international involvement in prosecutions, stating that international actors should not interfere with internal matters. It is evident, however, that international involvement is necessary, both for practical reasons and for ensuring the trust of victims. According to a 2017 report by the International Commission of Jurists, Sri Lanka’s judicial system suffers from significant delays in the administration of justice, and a loss of trust, particularly due to the former government’s encroachment on the judiciary in previous years. The report also highlights that there is minimal expertise in international criminal law in the country, and egregious crimes of an international nature are not criminalized in the domestic legal framework, creating a vacuum. Prosecuting systematic crimes that occurred during an armed conflict requires a body with the capacity to investigate complex and large-scale violations and handle vast amounts of evidence. It is clear that Sri Lankan courts do not have this capacity. If the Sirisena government is genuine about fulfilling the commitments made in UN Human Rights Council Resolution 30/1, some level of international involvement and the setting up of a special court, rather than the use of existing structures, is needed.

Having said that, rights advocates and the government should ensure that any court that is set up in Sri Lanka is done so after proper consultations with victims, and is accessible to local people. For example, the hybrid tribunal in East-Timor was critiqued for being inaccessible due to language barriers and cultural insensitivities. It is important to get the balance right between having international involvement to increase credibility, while at the same time establishing a body that is owned by and accessible to Sri Lankans, particularly those victims who are women and girls, or who live in rural areas. The Extraordinary Chambers in the Courts of Cambodia provides a relevant example in this regard. It is a hybrid judicial mechanism with national and international judges and actors, that provides for greater victim participation than the model in East Timor, though improvements are still required.

If the government is serious about reconciliation and preventing conflict in the future, the promise to investigate and prosecute alleged war criminals by way of a special court should be fulfilled without delay. Prosecutions as part of a holistic transitional justice effort will go towards promoting a peaceful future for all Sri Lankans.

Nadeshda Jayakody was formerly a consultant with the United Nations University in New York.

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