Alleged war crimes: Restorative justice with truth and reconciliation

By Ameen Izzadeen
For how long can Sri Lanka play hide and seek with the Western powers which, for reasons political or otherwise, seek to hold the country’s leadership and the security forces accountable for war crimes alleged to have been committed during the last stages of the separatist war in 2009?
How many times can we ask for more time from the United Nations Human Rights Council to address this issue? The respite the present Government managed to win on the strength of its ‘good governance’ promises is not indefinite. Before the September sessions of the UNHRC, we are told there should be a credible domestic mechanism to deal with the charges. Rather than confronting the international community or the West, the new Government is engaging it. The courage is encouraging.
The earlier a solution is found, the better it is for the country. We should not go after temporary solutions or resort to various stratagems, assuming that with time, the issue will be off the international agenda. This was the strategy the previous regime adopted. Relying heavily on the support of China, a United Nations Security Council member, without whose consent the West cannot punish Sri Lanka, the previous regime dared to court the wrath of the Western powers.
But China’s political and economic support came at a huge price. Sri Lanka became a virtual satellite state of China, so much so that the regime had no qualms over compromising the territorial integrity of the country. As the country plunged deeper into a debt trap made in China, the regime was forced to offer a section of the strategic Hambantota harbour and a large area from the now suspended port city project in Colombo, disregarding concerns over the damage such moves could cause to Sri Lanka’s foreign relations with India and the West.
If only the previous regime had displayed political courage to probe the war crimes allegations by setting up a credible domestic process, Sri Lanka would not have descended to a pitiful level where it could not find enough friends at the UNHRC to deter or defeat a resolution that virtually labelled Sri Lanka as a pariah state in the community of civilized nations.
Now that the country has obtained six more months, this domestic process should be started immediately or after the general election, notwithstanding the fallout from such a move. By initiating a war crimes probe, a ruling party will be committing political hara-kiri as it will make it unpopular among the Sinhalese. Such a move will be seen as betraying the war heroes who sacrificed their lives for the territorial integrity of the country.
But at the same time, the Government cannot be seen as dragging its feet or trying to take the international community for a ride. If the sponsors of the anti-Sri Lanka resolution at the UNHRC lose confidence in Sri Lanka’s will to probe the war crimes allegations, the Government would only be fast tracking the ongoing international process which can lead to economic sanctions or an international tribunal similar to the ones set up to probe war crimes in the former Yugoslavia and Rwanda.
The way out is to make the domestic probe one aimed at restorative justice rather than retributory justice. Let truth and reconciliation be the focus of the domestic process with the victims being compensated adequately. It is inevitable that such a domestic process will expose a few bad eggs and may sully the image of Sri Lanka’s security forces. But if the Government, for these reasons, fights shy of setting up a credible domestic process, then it has to be also worried about the long-term economic and political loss to the country and the country’s international image.
A domestic probe will restore the country’s international image while it will also help attract big time international investors capable of giving a much-needed fillip to Sri Lanka’s foreign-loan-dependent economy.
As a first step, the Government should take up the cases which Sri Lanka’s own Lessons Learnt and Reconciliation Commission (LLRC) believed warranted serious investigations. The moral compunction for a domestic inquiry lies in the fact that ours was an internal war, where Sri Lankans died at the hands of Sri Lankans. The probe should essentially be an internal matter. But the Government has to be mindful that an international probe derives its legitimacy on two premises – the absence of a credible domestic process and the universal jurisdiction over crimes against humanity.
This is why liberal democracies are quick to adopt domestic processes to probe excesses committed by their armed forces. If the Sri Lanka Government is determined to protect the armed forces and their dignity, then it must look at investigations that the Western nations undertake and justifications they cite to clear them of charges of war crimes. Take for instance, the Lord Chilcot inquiry on Britain’s involvement in the Iraq war. The British government has adopted a policy of not sharing sensitive information with the investigators and thereby is able to avert serious damage being caused to Britain’s relations with the United States.
We may also learn a lesson from Britain’s Bloody Sunday investigations into the killing of 26 unarmed civilians by British troops in 1972 in Northern Ireland. It took some 38 years and two probes for the survivors of that massacre to hear the verdict that the action of the British troops was “unjustified and unjustifiable”. Claims for compensation and the demand for the arrest of the soldiers responsible for the killing still continue.
It is also noteworthy to mention that countries like the United States when accused of killing civilians describe the loss of civilian deaths as unavoidable collateral damage. This is because they know that international humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. Killing of civilians becomes a war crime only when the principle of proportionality is violated.
Thus there are many damage control measures the Government can adopt during a domestic probe without resorting to deception.
The Government would do well to remember that in the international cry for a war crimes inquiry on Sri Lanka, there is more politics than concern for the alleged victims. The new government or the national government to come after the next general election should devise a suitable domestic process to put to rest, once and for all, the war crimes issue without causing much damage to the security forces but meting out restorative justice to the victims and bringing about the much-needed reconciliation.
(This article first appeared in the Daily Mirror, Sri Lanka)