Action on justice facilitates political solutions to conflict

Recently, Ram Manikkalingam argued that Sri Lanka must not prioritize accountability for mass atrocity crimes until a new constitution addressing Tamil autonomy is formulated. He also argued that international human rights advocates must stop giving precedence to war crimes trials over other forms of reconciliation. Yet with these very arguments, Manikkalingam is at risk of mimicking the patronizing error of those he critiques. He fails to recognize that the intellectual and moral leadership in respect to the demand for accountability has long shifted from those outside to those who live and work in Sri Lanka.

Manikkalingam’s article touches two recurring debates within Transitional Justice, first, the peace versus justice debate, and second, the question of sequencing reconciliation related measures. He suggests that because a political solution is more important than war crimes trials, the sequence in which they are unveiled should privilege a political solution. Yet not only is this dichotomy false, it is also strategically better to establish the legal architecture to try atrocity crimes earlier rather than later.

Of course, the argument that a political solution to Sri Lanka’s national question overshadows the importance of prosecuting a few perpetrators has a certain intuitive appeal. Yet this analysis does not account for the role of unpunished atrocities in fuelling the ethnic conflict. The Tamil political mobilization for equality in Sri Lanka predated independence and has since been consistently visited with unpunished violence in escalating degrees. Each unpunished episode of violence—what we would now call mass atrocity crimes—added fresh fuel to ethnic tensions and eventually to unhinged violence from both sides. The 1983 ethnic pogrom—indubitably the largest such attack against civilians of any ethnicity in post-independence Sri Lanka—quickly transformed a bothersome youth revolt into a full-fledged war of devastating proportions. Impunity and resulting violence, and the fear borne out of impunity, is at the heart of demands for autonomy. This is why Tamil politicians have insisted on the right to powers over police above fiscal and economic powers—control over physical security is, rightly or wrongly, perceived to be a more urgent and important concern.

Manikkalingam also ignores a central dynamic at play in Sri Lanka’s ethnic problem. A narrative of broken promises by national leaders lies at the heart of Tamil political consciousness. Sri Lanka’s commitments on accountability, now encapsulated in the latest United Nations Human Rights Council resolution of October 2015, form the basis of a political consensus between state and Tamil political leaders on how to deal with a past in which unspeakable atrocities were committed by both sides. Despite the vocal opposition of fringe elements within the Tamil polity, the leadership of the Tamil National Alliance negotiated with stakeholders on the fine print of the text and endorsed the resolution adopted by consensus in Geneva. Indeed, it has since claimed that the resolution is not merely a pact between the international community and Sri Lanka, but equally importantly as one between the state and the Tamil people. If this pact is to be abrogated now, the abandoning of the Geneva resolution may one day come to be remembered with the same bitterness as the nullification of other past agreements.

Shutterstock/Viva Tamils (Some rights reserved)

Mr. R Sampanthan, Leader of the Tamil National Alliance.

Even if one disagrees with Manikkalingam and asserts, as I do, that a political solution and accountability are inextricably linked, his prescription that accountability must be sequenced to follow constitutional reform nevertheless deserves attention. Sequencing Transitional Justice processes are a legitimate and widely used stratagem towards a variety of Transitional Justice goals. In the Latin American context of Transitional Justice in the 1980s and 90s, where right-wing dictators either left a legacy of amnesty laws or enforced such laws on new governments through the threat of force, truth commissions helped uncover evidence of crimes and discredit former regimes. More recently, however, many countries have opted for trials and truth commissions in tandem.

Strategic considerations favour the establishment of a legal framework sooner, rather than later, after a new constitution is passed.

The strategic question for Sri Lanka is what ordering of processes and mechanisms would optimize outcomes, rather than a question of which process has greater importance. In Sri Lanka, there are no amnesty laws to overcome as in Chile and no imminent coup d’état as in the case of Argentina. Instead, a government with a two-thirds majority (albeit tenuous) holds the reigns, having promised in the manifesto by which it came into power that justice for war crimes will be handled by national independent judicial mechanisms. Strategic considerations favour the establishment of a legal framework sooner—in mid-2016, as proposed by the Prime Minister—rather than later, after a new constitution is passed.

First, a new constitution dealing with devolution is by no means a foregone conclusion, and parking accountability until the constitution is established makes it highly likely that it will never be addressed at all. Thirteen months down the line after a historic regime change, the window for Transitional Justice is beginning to close, and the political difficulty of establishing justice mechanisms will continue to rise. A year from now, if Sri Lanka has made no progress on accountability or on constitutional reform, the tone and timbre of Tamil politics will have shifted dramatically towards sharper rhetoric and increased frustration. If Tamil moderates are pushed out of the way, Tamil ultra-nationalists will provide their Sinhala counterparts ample fuel to end Sinhala moderates’ grip on power as well.

But critics may ask, would not the effort to pass contentious laws reduce the available political capital for a political solution? Arguably, the government’s lack of clarity and messaging on the justice mechanisms it envisages is extracting a political cost, as right-wing demagogues are controlling the messaging about a future court and whipping up unjustified fears of a witch-hunt against the military. This will continue, and may well intensify, even if the government parks the question of accountability for later. In this case, the government must be absolutely clear about what it intends to do and establish the necessary mechanisms without delay.

Second, even if set up now, judicial processes including a special counsel for prosecutions will only lead to trials long after the deadline for constitution making has passed. Prosecutions of complex crimes take years to prepare, and if legislation is passed in 2016, the chances of controversial indictments and trials within the year or even early next year are vanishingly small.

The government must move quickly to create the necessary legal framework for the trials of international crimes. This requires decisive action, but the President and Prime Minister have looked their political best when acting decisively. Instead, if they project weakness and timorous apprehension, the appeal of yesterday’s strong men will continue to grow.

A longer version of this article first appeared on Groundviews.