Peace versus justice

Peace and justice, we are told, are mortal enemies. If you want peace, you need to be prepared to sacrifice the demands of justice. And if you insist on justice, you cannot have peace. Hence, after violent civil conflicts, questions of accountability, truth-finding and reconciliation have often been subsumed to a demand for the victims to forget their grievances in the wider interests of peace.

It is argued that a society cannot move on if it is transfixed by the traumas and sins of its past. But the experience of conflict over the past century proves the opposite: the past imprisons the future. For this, it might be enough to see one’s country or cause destroyed, to see loved ones dead or injured, and to see one’s home and heritage in cinders. It is even more so if such all-encompassing suffering is, in addition, denied recognition by a false truth imposed by perpetrators who write the official histories.

Even now, almost a century after the Armenian genocide, ethnic Armenians the world over clamour for recognition of the fate of their ancestors. The mothers on the Plaza de Mayo in Buenos Aires kept marching every Thursday for a decade, until a reformed Argentina was willing to acknowledge the truth about the horrible killings committed by the military government in the “dirty war” (1976-85) against suspected leftist youths.

Accounting for the past is therefore not only a moral right of victims and relatives, but it is also a necessity for a society to come to rest after a period of violent confrontation, marked by systematic abuses of human rights and human dignity. This finding has led to the development of a comprehensive toolbox for transitional justice in places as diverse as Central America, South Africa and Canada. It includes establishing the truth through official commissions and allowing victims and their relatives to air their story and share their grief with the nation. The process involves offering official acknowledgement of suffering, and compensation for it, along with guarantees against repetition of the kind of atrocities suffered. And ultimately it may include establishing criminal responsibility for those at the top who ordered atrocities, or those who carried them out on the ground.

The government of Sri Lanka under President Mahinda Rajapaksa, in elected office since 2005, seems some distance removed from recognising the utility of such mechanisms. The violent confrontation between Tamil Tigers and the government ended in 2009, after decades of vicious strife. Despite the government’s decisive victory, the battle over the truth of the final phase of the conflict continues.

In the government’s view, the Tamil Tigers are a terrorist movement that imposed untold suffering on Sri Lanka. They were wiped out by a heroic struggle of the armed forces, who suffered great casualties. But many Tamils, mainly in the northeast, along with a vocal expatriate community around the world, have been confronted with the collapse of their dream of self-determination, as well as suffering many deaths, physical and mental trauma and damage to property. To them, these are losses imposed by a brutal government campaign that violated all standards of humanity.

The government launched its campaign to defeat the Tamil Tigers (also known as LTTE) in their remaining northern stronghold in September 2007. The fighting intensified as government forces increasingly hemmed in the LTTE forces on the Jaffna peninsula, where previously they had maintained a virtual state. The final phase of the already brutal conflict commenced in September 2008 and lasted until May 2009.

According to evidence collected by major international human rights organisations, including Amnesty International and Human Rights Watch, and most recently supported by two United Nations reports of March 2011 and November 2012, the government used artillery to attack areas where large numbers of civilians were mixed in with small numbers of Tamil tigers. (Authorities deny this charge.) In fact, the government had unilaterally declared these areas “no fire zones” (NFZs) and urged civilians to congregate in them. According to these reports, the government hindered or denied humanitarian assistance necessary for the survival of some 300,000 trapped civilians and later targeted or detained them as they sought to flee the scene. Government troops also allegedly murdered large numbers of captured opposition fighters who had finally surrendered. A video purportedly confirming this fact caused outrage in western states where it was screened. The authorities are also said to have allowed rape and torture to take place as part of their armed campaign.

On the other hand, according to the same reports, the Tamil Tigers themselves face allegations of severe and widespread mistreatment of individuals in areas under their control. They are said to have prevented the terrified civilian population from leaving the conflict area and instead used them as human shields. The LTTE is reported to have fired weapons from the immediate vicinity of these civilian concentrations.

Such conduct on both sides offends against the most fundamental rules of human rights and humanitarian law, which preclude systematic attacks on a civilian population through killings, torture, sexual violence, forced displacement and other acts. They apply to governments and armed opposition movements alike, in times of both peace and war. Their application can never be suspended, whatever emergency a government may invoke.

In the past, a code of silence on atrocities of this kind might have prevailed. Governments triumphing in internal conflicts would seek shelter behind the doctrine that other countries should not interfere in their internal affairs. But the 1990s changed this. The UN Security Council set up a process to investigate the violations of humanitarian law by Saddam Hussein’s troops in occupied Kuwait. Then came the Rwandan genocide in 1994 and the Srebrenica massacre in Bosnia in 1995. It became clear that the suffering of entire populations does not take place within an iron box of state sovereignty; the outside world can insist on an objective determination of facts and on the establishment of responsibility when universal core values have been systematically violated. But it needs to muster widespread agreement to activate the mechanisms now available.

Immediately after the Sri Lanka conflict ended, in May 2009, UN secretary general Ban Ki-Moon visited the country in the wake of initial reports of the atrocities. President Rajapaksa reiterated his commitment to international human rights and promised an accountability process to address grievances. But he wasted the opportunity to cooperate with the UN and other bodies in mounting a credible truth and reconciliation process. Instead, in 2010 the government established its own “Lessons Learnt and Reconciliation Commission,” which lacked the mandate and willingness to mount a full, independent investigation.

Since then, the government has worked hard diplomatically to block a formal international investigation into its compliance with these rules during the final phases of the conflict, skilfully exploiting broader divisions among the permanent members of the UN Security Council. Russia dislikes international action it sees as inspired by western liberalism. China often sides with less developed states that claim to suffer from western interventionism. As a result, the council is not in a position to establish an ad hoc tribunal, as it did for Yugoslavia and Rwanda.

It also cannot refer the matter to the International Criminal Court in the Hague, as it did on Sudan and Libya. Sri Lanka is not a member of the ICC Statute, precluding the court from mounting a prosecution at its own initiative. And given the attitude of its government, it is unlikely that a mixed or hybrid court based in Sri Lanka but containing international elements could be established, as was the case in Cambodia, Sierra Leone or Lebanon.

Sri Lanka’s international campaign to own the truth is rooted in the government’s conviction that the conflict was prolonged by meddling western governments who generated pressure for recognition of a separate Tamil identity. It argues that “the west” has been preaching the need for counter-terrorism action against threats to New York or London, but pleaded with the government to give only a “moderate” response to the violent movement of the Tigers. Members of the government consider, too, that international mediators rewarded the fighters with peace plans offering self-governance bordering on independence.

There is some truth to this last point. In the months leading up to the defeat of the Tigers, there was widespread confidence among diplomats and experts that a Norwegian-sponsored settlement offering broad autonomy to the northeast would be signed any day. This, the government argues with some justification, would have handed control over a large part of Sri Lanka’s territory to an unaccountable and dictatorial cadre movement tainted by charges of terrorism.

As diplomatic deadlock on the question of accountability persisted, the UN secretary general himself took action. Building on the commitment the Sri Lankan president made to him in the immediate aftermath of the conflict, he appointed in June 2010 a three-member expert panel to advise him on steps towards accountability. This was a courageous and risky move, given the dependence of the UN Secretariat on the support of the wide range of UN member states.

The panel issued its Report on Accountability in Sri Lanka in March 2011. The experts had not been mandated to make findings on the substance of the case but they confirmed the very serious allegations of systematic misconduct. Moreover, the committee sharply criticised the government’s failure to deal with the violations. It found that the government’s Lessons Learnt commission was “deeply flawed” while no other domestic remedies are available to victims through local courts. It proposed steps to address this gap.

The diplomatic battle then transferred to Geneva, the seat of the UN human rights machinery. Western governments had been pressing for the Human Rights Council to institute its own investigation or demand that Sri Lanka take more effective action. However, the council is not an independent court or body composed of human rights experts. It too is a diplomatic arena, where governments fight tooth and nail to avoid criticism of their conduct or that of their allies. In this instance, highly unusually, the office of the UN high commissioner on human rights felt constrained to censure the Sri Lankan government for attempting to intimidate its own nationals, including journalists reporting on the proceedings and Tamils who had come to Geneva to campaign for a resolution from the council.

In March of last year, almost three years after the conflict concluded, the Human Rights Council managed to adopt a resolution. The text was approved by 24 votes in favour, with 23 votes against or abstaining. Russia and China opposed it. The resolution had to be largely defanged to allow its passage; it meekly calls upon the government to launch a more credible national process to ensure justice, accountability and reconciliation.

Hence it seems that the matter will, for now, remain with the government of Sri Lanka, which is unlikely to be swayed by international pressure; indeed, it may believe that its prime task is to resist unjustified international pressure, rather than to move the nation ahead in its own interest. The government will need to come to realise that its victory in the northeast will be a pyrrhic one, unless it manages to reunite the country in a more profound way. The Tamil population will continue to demand acknowledgement of its past suffering and of its identity within the state.

For the government, taking full account of the past need not be an exercise in unqualified self-flagellation. There is also much to be critically investigated about the armed Tamil movement—a movement that is unlikely to accept the status of a beaten enemy forever. In Sri Lanka, as in most places, it is unlikely that a genuinely lasting peace can be established unless of the visible administration of justice heralds a new beginning.