MORE THAN JUDGING WAR CRIMES
Dr. Jehan Perera mulls over the demands of transitional justice
In the past, resolutions passed by the United Nations Human Rights Council (UNHRC) on Sri Lanka have generated much political controversy. Beginning with the first in 2009, a few weeks following the end of the conflict, they were directed against the former government for having fought the war in the way it did with high civilian casualties and alleged human rights violations.
These resolutions were strenuously resisted by the government, which also used them as yet another opportunity to mobilise popular sentiment in its favour.
Prior to 2015, every session of the UNHRC in Geneva was an occasion for whipping up a sense of national crisis and accompanying nationalism. But on this occasion, the sessions in Geneva progressed better than expected for the government, which did not encounter any overwhelming criticism.
There was an implied recognition in the UNHRC that Sri Lanka is relatively advanced in terms of post-war normalisation compared to other countries that have recently experienced conflict.
The continuing progress towards normalcy was the main reason why the international community was prepared to offer the Sri Lankan government another two years in which to implement the promises it made in October 2015 to the UNHRC. It appears that the international community is willing to give the benefit of the doubt to the government. It knows it cannot take on to itself what our government must do.
By providing Sri Lanka the two years requested by its administration, the international community has recognised that it is only the Sri Lankan government that can deliver on these commitments – not the international community, which at best can play a supportive role.
Although the government received this extension, its problems are not over. It still has to deliver on the promises it made 18 month ago. The issue of missing persons, return of land, demilitarisation, and amending the Prevention of Terrorism Act (PTA) to reflect human rights standards among others are difficult to resolve.
Any government that wishes to win the next election needs to be mindful of the Sinhalese ethnic majority for whom economic development matters more than transitional justice. When prosecuting war crimes is made the centrepiece of transitional justice – as demanded by sections of the international community and Tamil polity – it is even more difficult to gain popular support for it.
The opposition focusses on matters of national sovereignty and security, and the government will be hard-pressed to cope with this challenge when it comes to the realm of public debate. In the minds of most people, national security tends to receive more deference and priority than any other issue. To deal with issues of the past, the basic challenge for Sri Lanka today is for the government to break free of the shackles that are being imposed on it by those who oppose the reconciliation process.
The present government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe is not anti-Tamil. In an ethnically divided society, it is rare to have such leaders who have long track records of non-racist behaviour. But they are also politicians who assess the pulse of the people.
In a post-war setting like Sri Lanka’s, those who have fought and won the war, and continue to be in positions of authority, will very likely be held in high esteem by much of the population.
Ensuring accountability for war crimes that might also have been committed will be a major political problem. In Sri Lanka, it is a problem that has the potential to even unseat the government if not properly handled. Unhinging the concept of transitional justice from its present pivot of accountability for war crimes is key to moving forward to a lasting political solution and reconciliation.
The demand for international tribunals and hybrid courts to ensure accountability strengthens the hands of those who oppose the transitional justice process. They claim that ascertaining the fate of missing persons, and providing reparations for loss of life and property, are part of a package aimed at providing hard evidence that will be used in war crimes prosecutions and to punish war heroes.