Disclaimer: Please note that the views expressed below represent the opinions of the article’s author. The following work does not necessarily represent the views of the Synergy: Journal of Contemporary Asian Studies.
Over the past few decades, the concepts of transitional justice and individual accountability have become central to the liberal world order. Previously, state officials were largely immune to prosecution over war crimes and human rights violations in domestic and foreign courts. However, recent trends have shown that even political/military leaders – Omar Al Bashir from Sudan, General Augusto Pinochet from Chile, to name a few – can now be subjected to trial and punishment for past human rights violations. Kathryn Sikkink, a scholar of international relations, termed this trend ‘the justice cascade’.[1] The concept of such transitional justice recognizes the dignity of victims as citizens by acknowledging the violations committed and legitimately addressing the perpetrators of mass atrocities and systematic abuses in post-war regions.
The path towards transitional justice has not been smooth in post-war Sri Lanka. The Sri Lankan Civil War (1983-2009) – fought on the grounds of heightened ethno-religious tensions between the majority Sinhala community and the minority Tamil community – has left a devastating legacy of human rights violations, arbitrary detentions, forced disappearances and disenfranchised citizens in the nation.[2] In 2015, the Sri Lankan government promised the international community that it would fulfill a number of measures and reforms to strengthen the transitional justice program. However, a majority of these promises remain unfulfilled to date. Despite continued pressure from the international community and the Tamilian minority, the Sinhalese majority has been opposed to the conviction of military leaders and politicians involved in the war. Two obstacles that prevent constructive transitional justice from materializing in Sri Lanka are the persistence of majoritarian politics and the opposition to international involvement in the reconciliation process in Sri Lanka.
According to a prominent Sri Lankan historian, K.M. De Silva, the island’s Civil War could be considered a war between “a [Sinhalese] majority with a minority complex, and a [Tamil] minority with a … majority complex.”[3] Such divisive mindset is rooted in Sri-Lanka’s history under the British colonial rule, which had a starkly polarizing effect on the Sri Lankan population. The Tamilian minority was placed in higher administrative positions under the colonial rule, while the Sinhalese community was deprived of educational benefits. The Tamilian minority had superior education and higher employability, which alienated and disempowered the Sinhalese majority. Post-independence, the Sinhalese majority imposed a number of anti-Tamil laws (for example, the “Sinhala Only Language Act” of 1956) in order to reaffirm their racial superiority and reinstall their power as the majority community of Sri Lanka. The rising tensions between the two communities culminated in the violent civil war, which lasted for three decades – resulting in widespread human rights violations, casualties and forced disappearances throughout the country. In 2009, the war saw an extremely violent end with alleged war crimes committed by both sides. The military defeat of the Liberal Tigers of Tamil Eelam (LTTE) – the Tamil militant separatist group, declared a “terrorist” organization by the Sri Lankan government – was celebrated by the Sinhalese population and the government. According to estimates made by the United Nations, “about 40,000 Tamil civilians were killed in the last few weeks of the war, most of them by the Sri Lankan army.”[4] The Sri Lankan government has refused to cooperate with these investigations. In 2010, President Rajapaksa openly denied these allegations by saying: “Our troops carried a gun in one hand and a copy of the human rights charter in the other.”[5]
His statements have been proven inconsistent through the findings of the United Nations, which estimated that around 7,000 ethnic Tamil civilians were killed right before the government declared its final victory over the LTTE.[6] President Rajapaksa and other Sinhalese political groups were staunchly opposed to Western intervention in the reconciliation process of Sri Lanka. The ineffectiveness of the peace negotiations under the third-party supervision of Norway in 2002, which took place in the backdrop of the military warfare in Sri Lanka, served as a strong precedent for the inadequacy of “liberal peacebuilding” practices in the Sri Lankan context.[7] In many cases, foreign intervention in the transitional justice process was considered a violation of Sri Lankan sovereignty.[8] However, the deeply entrenched majoritarian nature of Sri Lankan institutions continues to present a significant threat to the effectiveness of any domestic mechanisms. Ranil Wickremesinghe, the main opposition leader in favour of Tamilian reconciliation advocated for Western involvement in the process.[9]
Sri Lanka’s disdain for international involvement in the reconciliation process is apparent in the Sri Lankan government’s refusal to implement hybrid courts (consisting of both domestic and international judges) for the trial of war criminals; arguing that the domestic judicial system is more than capable of handling national issues without international assistance.[10] In 2010, the Lessons Learnt and Reconciliation Commission (LLRC) was launched to investigate the past violations of the civil war. However, an inquiry into the committee’s findings revealed that it did not adequately address the serious allegations of international law violations in Sri Lanka. The LLRC has been heavily criticized by international human rights groups such as Human Rights Watch, Amnesty International and others.[11]
Despite President Rajapaksa’s adamant refusal to cooperate with international institutions, President Sirisena’s government acquiesced to the demands of the UN and nations such as the United States and EU to implement transitional justice and individual accountability measures in 2015.[12] However, the strong ethno-religious orientation of Sri Lankan politics continues to prevent the prosecution of many perpetrators of human rights violations. The 2009 victory against the LTTE “terrorist” group turned war criminals into “war heroes” for the Sinhalese population. President Sirisena made statements suggesting that members of the security forces – whom he has described as “war heroes” – will be protected from prosecution for any conflict-related crimes.[13] In January 2019, President Sirisena appointed a general accused by the United Nations of war crimes to the country’s second-highest army ranking.[14] These are a few instances which imply the relative impunity, and in some cases, privilege offered to Sinhalese war criminals in Sri Lanka despite international pressure to prosecute them.
In post-war Sri Lanka, reconciliation and transitional justice remain a distant dream due to many institutional challenges inspired by majoritarianism. In March 2019, Sri Lanka co-sponsored a resolution in the UN which gives the country a two-year deadline to establish a credible judicial mechanism in order to assess issues of international humanitarian law from the civil war. The world is yet to witness a tangible victory in the process of transitional justice and reconciliation for Tamils in Sri Lanka.
Sri Lanka’s avoidance of international involvement in the reconciliation process and the continued persistence of majoritarianism in politics, make the legitimacy of some norms of international law questionable. Widely accepted principles of liberal peace-keeping such as jus cogens[15] and R2P (responsibility to protect)[16] are underscored by the idea that in matters of war crimes, genocide and crimes against humanity, the international community is under a legal obligation to intervene and respond to a nation’s domestic issues. However, a nation’s right to sovereignty, which is one of the key pillars of international law, is directly at odds with these ideas. International law scholars offer divergent opinions on this issue.[17] In the case of Sri Lanka, should national sovereignty take precedence over the implementation of transitional justice and individual accountability through international assistance? The case of Sri Lanka is a ripple of inconsistency in the ‘justice cascade’[18], one that could possibly be combated with the reduced influence of domestic majoritarian politics, and not necessarily by the means of direct interference, but through increased oversight by the international community.
Shamshir Malik is a fourth-year student pursuing a double-major in Political Science and Diaspora & Transnational Studies. Her research interests include international relations, migration, and South-to-South cooperation. As a Contributor to the South Asian section, she hopes to discuss the involvement of South Asian countries in multilateral organizations and international relations, as well as issues related to identity and migration in the sub-continent.
Bibliography
“Sri Lanka furious as UN names war crimes panel.” Gulf Times. 2010. https://web.archive.org/web/20110608232003/http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=369568&version=1&template_id=44
“Sri Lanka: Reports Fail to Advance Accountability.” Human Rights Watch. 2011. https://www.hrw.org/news/2011/12/16/sri-lanka-report-fails-advance-accountability
“Sri Lanka says ‘no’ to foreign judges in war crimes probe.” The Hindu. 2017. https://www.thehindu.com/news/international/sri-lanka-says-no-to-foreign-judges-in-war-crimes-probe/article17413166.ece
“Sri Lankan general accused of war abuses appointed army chief.” Al Jazeera. 2019. https://www.aljazeera.com/news/2019/08/sri-lankan-general-accused-war-abuses-appointed-army-chief-190819170119306.html
“What Is R2P? – Global Centre For The Responsibility To Protect”. Global Centre For The Responsibility To Protect, 2020. https://www.globalr2p.org/what-is-r2p/.
Adriana, Viziru Mirela. 2014. “The Sri Lankan Civil War: From Conflict To Peace Building”. University Of Chicago Press. Global Journal Of Human Social Science Volume 14 (Issue 2).
De Silva, Kingsley M. 2005. A History Of Sri Lanka. Colombo, Sri Lanka: Vijitha Yapa Publications.
Ganguly, Meenakshi. 2018. “Transitional Justice Efforts In Sri Lanka Fall Short”. Ft.Lk. http://www.ft.lk/opinion/Transitional-justice-efforts–in-Sri-Lanka-fall-short/14-663159.
Goodhand, Jonathan, Jonathan Spencer, and Benedikt Korf. 2011. Conflict And Peacebuilding In Sri Lanka. Abingdon, Oxon: Routledge.
Mahr, Krista. 2019. “Sri Lanka To Start Tally Of Civil War Dead”. TIME.Com. http://world.time.com/category/asia/sri-lanka-asia/.
Mik, Cezary. 2014. “Jus Cogens In Contemporary International Law”. SSRN Electronic Journal. doi:10.2139/ssrn.2473061.
Polletta, Francesca, Margaret E. Keck, and Kathryn Sikkink. 1999. “Activists Beyond Borders: Advocacy Networks In International Politics”. Contemporary Sociology 28 (1): 96. doi:10.2307/2653901.
Root, Joshua, and Winstin Nagan. 2013. “The Emerging Restrictions On Sovereign Immunity: Peremptory Norms Of International Law, The U.N. Charter, And The Application Of Modern Communications Theory”. University Of Florida Levin College Of Law.
Footnotes
[1]Margaret Keck and Kathryn Sikkink, “Activists Beyond Borders,” Cornell University Press (2008): pp. 1-32
[2]Viziru Mirela Adriana, “The Sri Lankan Civil War: From Conflict to Peace Building,” University of Chicago Press, Global Journal of HUMAN-SOCIAL SCIENCE: F Political Science Volume 14 Issue 2 (2014).
[3]K.M De Silva, “A History of Sri Lanka,” University of California Press (1981).
[4]Krista Mahr, “Sri Lanka to Start Tally of Civil War Dead,” Time USA, 2019.
[5]“Sri Lanka furious as UN names war crimes panel.” Gulf Times. 2010.
[6]Ibid.
[7]Jonathan Goodhand, “Conflict and Peacebuilding in Sri Lanka”, New York: Routledge, 2010.
[8]Ibid.
[9]Ibid.
[10]“Sri Lanka says ‘no’ to foreign judges in war crimes probe,” The Hindu, 2017.
[11]“Sri Lanka: Reports Fail to Advance Accountability,” Human Rights Watch, 2011.
[12]Meenakshi Ganguly, “Transitional Justice efforts in Sri Lanka Fall Short,” Human Rights Watch, September 2018.
[13]Ganguly, Meenakshi. “Transitional Justice efforts in Sri Lanka Fall Short.” Human Rights Watch. September 2018.
[14]“Sri Lankan general accused of war abuses appointed army chief.” Al Jazeera. 2019.
[15]Hossain, Kamrul. “The Concept of Jus Cogens and the Obligation Under The U.N. Charter” Santa Clara Journal of International Law. 2005.
[16]“What Is R2P? – Global Centre For The Responsibility To Protect”, Global Centre For The Responsibility To Protect, 2020, https://www.globalr2p.org/what-is-r2p/.
[17]Nagan, Winstin. Root, Joshua. “The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory.” University of Florida Levin College of Law. 2013.
[18]Keck, Margaret and Sikkink, Kathryn. “Activists Beyond Borders.” Cornell University Press. 2008. pp. 1-32
Leave a Reply