Accountability in transition to nowhere

In Sri Lanka, historical acts of commission and omission by successive governments have led the Tamil population to believe there is little possibility they will be treated as equal citizens and included as full members of a multi-ethnic polity. Here, a poverty-stricken young mother in Jaffna rocks her baby in a makeshift swinging cradle as a young child looks on – Pic by Shehan Gunasekara

The old/new F word: accountability 

Accountability is a word that is being widely used in discussions about the on-going United Nations Human Rights Council sessions. It is however not a word that is commonly used in Sri Lanka, except by human rights advocates, and is hence largely associated only with war time human rights violations. 

In Sri Lanka, a patronage-driven society with a feudal hangover, political leaders are not held to account but are instead treated deferentially as demi-gods. In such a culture, demands for accountability are not regarded as a check on elected representatives but are viewed with disbelief and outrage. The outrage is heightened when the demands are made by numerically minority communities, and that too for violations related to the 30-year internal armed conflict. 

One of the arguments commonly used to criticise and challenge those that demand accountability for war-time violations is that the international community has denied the LTTE committed human rights violations. This is patently false as the United Nations has consistently documented LTTE violations. Moreover, countries such as the United States and Germany have convicted and charged persons for participating in violations committed by the LTTE.

The second argument is that the LTTE was not held accountable for its violations. Since the LTTE no longer exists, the only means of holding the LTTE leadership accountable is to initiate legal action against persons such as Karuna Amman and Pillayan, members of the current Government, who are accused of gross violations, such as the massacre of 600 policemen who surrendered in 1990. The Rajapaksa Government refuses to do so on the basis that these persons assisted them in defeating the LTTE. 

The Yahapalanaya Government too failed to take legal action against persons such as Karuna Amman, and at times even portrayed accountability as a threat to the country and the armed forces, from which it claimed it had ‘saved’ them. 

The then Minister Mangala Samaraweera for example said that he was confident they would be able to ‘save the armed forces’ by obtaining ‘international technical assistance’, and that the UN had halted an international investigation on the ‘Government’s promise’, while the then Minister Ravi Karunanayake vowed the Government would ‘protect’ war heroes who had saved the country. 

The question that is rarely ever posed is, if the armed forces did not commit any human rights violations, why do they need to be saved? Why should they fear an investigation? 

Justice as retribution 

In 2010, the then Minister of External Affairs G.L. Pieris set out his Government’s approach to dealing with past violations, which he called a ‘homegrown, homespun mechanism’ that has the capacity to bring ‘people together, accentuating, not the things that divide them, but the whole reservoir of values which all the people of Sri Lanka share’. 

Scholars, such as Sri Lankan anthropologist Michael Roberts, have argued in similar vein that the ‘bitterness wrought by the ethnic conflict’ could be fuelling the need for retribution, which in turn they fear might lead to the fabrication of allegations of war crimes by Tamils. Raising the issue of war-time violations is therefore perceived as an act that divides the country. Quests for truth and justice are presented as detrimental to a peaceful Sri Lanka, while forgetting, forgiving and leaving the past behind are regarded as integral to peace and reconciliation in post-war Sri Lanka.

More recently, in January 2021, when the memorial at Jaffna University dedicated to those that were killed in the war was demolished, the Chairman of the University Grants Commission justified the demolition on the basis that it is a memorial related to war, which would be a hindrance to north-south unity. 

The Chairman’s attitude reflects the belief of the Government and even sections of the southern public that the conflict was not an ethnic conflict but a terrorist problem, which was resolved when the LTTE was defeated. Hence, they believe there is nothing left to resolve, nor a need to remember. When there is a denial that the ethnic conflict existed, there is little hope of accountability for the violations committed during the armed conflict. 

Why are Tamils demanding justice via international mechanisms? 

In Sri Lanka, historical acts of commission and omission by successive governments have led the Tamil population to believe there is little possibility they will be treated as equal citizens and included as full members of a multi-ethnic polity. Instead, as the victor of the war, the government of the day, i.e. also the current Government, attempted to impose its will on the war-affected community and force them to adopt a Sri Lankan identity that was overwhelmingly Sinhala Buddhist. 

The Government thus seemed determined to quash what the people view as their distinct language, culture, heritage, and history. This was done through militarisation of the conflict-affected areas, military acquisition of private land in these areas, ineffectual implementation of Tamil as an official language and intimidation of the local population with the aim of restricting their right to dissent and challenge the State. 

Instead of subjugating them, these acts only served to generate anger, resentment and a sense of disenfranchisement amongst the Tamil people, especially those in the conflict-affected areas. In the short-term, these actions have made reconciliation challenging at best, and in the long-term might form the catalyst for another conflict. Instead of effecting social reconciliation, it will, in the words of Judith Butler, only produce an ‘outraged and humiliated and furious people’.

In countries that have experienced protracted internal conflict, people may be aware that human rights abuses took place, but many may be ignorant of the nature and extent of the violations. Due to a repressive environment and the resultant fear of challenging the government narrative, a culture of secrecy and denial may develop within society about rights violations. Such denial can result in collective amnesia which can have dangerous consequences, from creating a culture of suspicion and impunity, to self-blame on the part of the victims. For example, even violations that took place in the South, such as the Sooriyakanda/Embilipitiya massacre of school children during the second JVP uprising, seem to have been forgotten.

In this context, there is default mutual mistrust between communities, particularly the Tamils and Sinhalese, which has been exacerbated by the abuse of political power and lack of respect for the rule of law, which in turn have led to the erosion of political trust. This makes the political institutions established by the majoritarian State lack legitimacy in the eyes of the Tamils. 

For instance, a number of Tamils called for the boycott of the Northern Provincial Council elections in 2013 as they considered these structures inadequate to address the political demands of the Tamil community. Moreover, the Tamils regard the State as the perpetrator of the violations and hence, not surprisingly, have no faith it has either the will or the capacity to hold perpetrators to account. 

In seeking international justice for alleged human rights and humanitarian law violations committed by successive governments of Sri Lanka, the Tamil community is not only demanding justice for violations committed during the course of the war. They also seek to compel the Government to acknowledge historical grievances and violations, and achieve a political solution to the ethnic conflict.

Depoliticising transitional justice

The term reconciliation has been employed by different governments to dilute or deflect political demands. The Mahinda Rajapaksa Government appropriated the term ‘reconciliation’ to construct a narrative of a postwar Sri Lanka in which the rights of numerical minorities were being protected and their concerns addressed. 

During Yahapalanaya, the term reconciliation was used extensively to depoliticise the transitional justice process. For instance, the transitional justice process was referred to by the Government, as well as by certain civil society members and even the international community, as the “reconciliation process’ to make it more palatable and less threatening to the southern public. 

Hence, reconciliation was not viewed as the natural outcome of a successful transitional justice process. Instead, the purpose of the process seemed to be effect reconciliation without paying due attention to the steps that were required to achieve reconciliation. This reconciliation process also sought to construct a Sri Lankan identity, which while appearing to make an effort to recognise the plural and diverse nature of Sri Lanka, did not adequately address deep-seated structural and social prejudice and bigotry.

Political scientist Andrew Schaap points out that reconciliation can perpetuate ‘assimilation to the extent that it takes for granted one nation that needs to be healed rather than recognising two (or more) distinct political communities.’ 

We have to understand the reason for the refusal of war-affected Tamils to articulate political claims in terms of reconciliation in line with the State process during Yahapalanaya. The reason is that they wish to be recognised as a distinct political community, and were afraid their political demands would be diluted or even dismissed by a process that seemed afraid to address the root causes of the conflict. 

Half a step forward, three steps back

The failure to deal with past violations during the Yahapalanaya regime can be attributed to many factors. The main reason is that, like previous governments, Yahapalanaya did not acknowledge and address the majoritarian nature of the Sri Lankan state, which is driven by Sinhala Buddhist nationalism, and normalises the discrimination of minorities. Even a relatively progressive government, such as Yahapalanaya, was reluctant to challenge the majoritarian nature of the state for fear of losing its support base, being seen as ‘too accommodating’ of the ‘demands’ of minorities and the resultant backlash from the southern public. This only served to further entrench impunity in Sri Lanka.  

The current Government however makes no effort to even portray an inclusive approach to public policy making and governance. Instead, it re-affirms the majoritarian nature of the State at the macro and micro levels at every opportunity. 

For example, President Gotabaya Rajapaksa’s oath-taking ceremony was held at Ruwanwelisaya, a Buddhist sacred site that was built by King Dutugemunu, who according to legend defeated a Tamil prince to rule over the whole country. Recently, Secretary, Ministry of Public Security Sarath Weerasekera stated that, “Our culture of governance was centred with the ruling king. It has not fundamentally changed. Raja Bhavatu Dhammiko is the theme of governance by a virtuous ruler that we recognise, respect and expect.”

Majoritarianism is further demonstrated by the Government’s refusal to ban the Bodu Bala Sena as per the recommendation of the Presidential Commission to inquire into the Easter attacks, because, according to Minister G.L. Pieris, banning the Bodu Bala Sena is ‘difficult’ and ‘would not do any good’. 

The Government however shows no hesitation in rapidly introducing various controls – both formal and informal – to monitor and take legal action against what it deems extremism within the Muslim community, for instance, by requiring imported books on Islam to be released only after the approval of the Ministry of Defence. 

Crafting a transitional justice process that satisfies all stakeholders and protects the rights and well-being of all affected persons is a complex task riddled with a number of challenges and risks, not least the prevention of further victimisation of the conflict-affected.

The lesson to be learnt from the Yahapalanaya Government is that the complexity of this task will be compounded if the Government, civil society and the international community refuse to acknowledge the fundamental factors, such as the majoritarian State, that prevent and undermine meaningful and substantive action with regard to accountability.