Sri Lanka: after war, justice

Sri Lankan army soldiers are seen patrolling along the war zone in Vellamullivaikal on May 15The 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.

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

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.

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
, 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
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
. 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.

Luther Uthayakumaran is a Sri Lankan Australian writer. This
article has been reproduced from


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