Transitional Justice in the Asia-Pacific (10 page)

In
May 2009, the brutal 26-year conflict in Sri Lanka between the government and the Liberation Tigers of Tamil Eelam (LTTE) was brought to a close. Estimates of casualties during the conflict vary, but may be as high as 100,000, and during the final government offensive from January to May 2009, the UN expert report estimates that as many as 40,000 civilians may have been killed.
¹
During the course of the conflict, widespread human rights violations were committed by forces of the government and the LTTE alike. The LTTE engaged in acts of terrorism, including suicide bombing, and also attacked civilians and recruited child soldiers. Government forces, both the army and other security forces, engaged in attacks including shelling on civilians and hospitals and other humanitarian installations, involuntary disappearance, torture, arbitrary arrests, killings of noncombatants and combatants attempting to surrender, and denial of food and medical supplies to civilians.

The
International Crisis Group (ICG) and a range of other international human rights NGOs have thoroughly documented abuses on both sides and highlighted what they deem widespread acts tantamount to war crimes committed by government forces during their final offensive. However, the only proposed response to abuses during the conflict is a commission of inquiry created by the government, designed to examine only crimes alleged to have been committed by the LTTE. The government has been resistant to external scrutiny of its activities and loudly condemned both NGO and UN reports regarding alleged war crimes.

A close examination of the situation in Sri Lanka is merited in any comparative study of transitional justice in Asia, even though accountability measures that address violations committed by both the LTTE and the government throughout the conflict and during the brutal final months of the conflict seem unlikely at this time.
Despite the limited prospects for accountability at this time, closer examination is merited because Sri Lanka has in fact utilized accountability measures for past abuses previously (largely during the 1990s), the country is and has almost continuously been a democracy since independence, and until recently a vibrant civil society has issued frequent calls for accountability.

The resistance of the government to discussions of accountability seems peculiar, in the context of developing scholarship suggesting that past transitional justice measures help engender better human rights and democracy records given that the country has experienced a range of such measures, yet the quality of democracy, human rights, and rule of law appear to have been progressively degraded.
²
Thus, Sri Lanka's experience is important per se, but also because it seems to run counter to predictions from recent large-N studies.

This chapter will discuss the conflict in Sri Lanka, its earlier experiments with accountability, and the concomitant decline of rule of law
there. It will then turn to the end of the conflict, alleged abuses, and the failure to address them, and posit that perhaps the prior accountability measures served as cover, intentional or not, for the broader undermining of rule of law. It will, finally, consider options for accountability outside of Sri Lanka, and whether they have any prospect of affecting the domestic landscape.

At independence, Sri Lanka was a functioning democracy with universal suffrage. However, colonial practices providing preferential treatment to the Tamil minority in education and other areas were resented by the Sinhalese majority, and post-independence governments developed increasingly restrictive and discriminatory laws with regard to Tamils, pushing some to define themselves ethnically and increasingly stridently, eventually leading to a call for an independent Tamil homeland. In particular, Tamil access to higher education was progressively restricted, and debates over textbooks intensified controversies over language. Thus in 1977 the Tamil
United Liberation Front (TULF) called for a separate
eelam
or homeland for Tamils.
³
In the same year, J.R. Jayewardene came into power, promising a Buddhist revival with little concern for the status of the Tamil minority.
⁴
Meanwhile, the Liberation Tigers of Tamil Eelam – formed in 1972 as the student wing of the TULF – grew in strength, eventually breaking off from the TULF. Following
anti-Tamil riots in 1977, the LTTE escalated military activity, and, in 1978, the LTTE was officially banned and centralization of power increased with a new constitution enshrining an executive presidency.
⁵
This was followed by
the Prevention of Terrorism Act in 1979 and emergency regulations and a constitutional amendment in 1983 which further limited freedom of speech and rights of those under arrest.
⁶

These actions set the stage for the anti-Tamil riots in Colombo in 1983. The immediate cause of the riots was ostensibly the killing of thirteen Sinhalese soldiers by the LTTE near Jaffna in July 1983. The bodies were brought to the capital by fellow soldiers, sparking violence against Tamils by both local civilians and the soldiers themselves. The result was widespread and systematic destruction of Tamil-owned homes, businesses, and factories. Accurate estimates of fatalities are difficult to obtain: the government ultimately offered reparations to 937 persons, whereas others place the number at 2,000 to 3,000.
⁷
At least 80,000 to 100,000 Tamils were displaced to refugee camps in the Colombo area alone; other estimates place the number of Tamils made homeless at 150,000.
⁸
At the same time there was a rise in Sinhalese extremist
Janatha Vikmuthi Peramuna (JVP)-perpetrated violence in the south, as the group accused the government of being India's pawn and failing to deal firmly enough with Tamils.
⁹
Not only did the military and police
fail to restrain the riots; in some cases they actively encouraged them. Civilians and members of the military also rioted in the east, near Trincomalee Harbor. On 25 and 27 July, some fifty-three Tamil ‘terrorists’ were killed in a Colombo jail, presumably with at least the collusion of their jailers.
¹⁰
Following the riots, the LTTE's military activities, and the conflict, escalated
.

The conflict's intensity varied over the decades, with a reduction in violence following a ceasefire and the creation of the Sri Lankan Monitoring Mission in 2002. However, peace negotiations failed, and fighting escalated in 2006, with the ceasefire ending formally and the mission closing in 2008; the conflict escalated and ended with military victory by the state in 2009.

The conflict in Sri Lanka took a heavy toll on civilians, through everyday restrictions on liberties, particularly those of the Tamil population, and through violence and abuses. The repeated invocation of states of emergency by various presidents limited freedom of association and movement, and Tamils in particular were subjected to detention and harassment at government checkpoints.

Abuses were committed by the government and the LTTE, as well as splinter groups of the LTTE, throughout the conflict. The LTTE engaged in extensive recruitment of child soldiers, as did the government and the splinter wing of the LTTE, led by Colonel Karuna and collaborating with the government. The LTTE also engaged in extensive use of suicide bombers. The government and the LTTE engaged in forced disappearances, torture, and extrajudicial executions. Throughout the conflict, internal displacement was rife, with more than half a million persons displaced in all, some 75,000 to 90,000 by the LTTE in 1990 alone.
¹¹

Since the end of the conflict, the lives of civilians in the north and east have remained grim. Rather than withdrawing, the military has increased its presence and control over the north and east of the country. It retains control over many administrative decisions, is the body which approves or rejects plans for religious ceremonies and private gatherings, and often attends private functions for intelligence-gathering. The military has prevented public grieving over losses at the end of the conflict and similarly prevented local dialogue. Further, at least 3,000 Tamils continued to be detained in 2012, some 3 years after the end of the conflict as suspected LTTE, and the authorities first restricted and then eliminated ICRC access to these prisoners. Some 2,000 individuals detained and awaiting trial under the Prevention of Terrorism Act are being held for extended periods in ‘rehabilitation’ centres, and many Tamils are regularly detained and harassed, released, and re-arrested without charge.
¹²
Attacks on Tamils, including sexual assaults on Tamil women by members of the military, have been frequent. Although the majority of civilians displaced at the end of the conflict have returned home, they often lack the most basic services.
¹³
Outside the north and east, opposition politicians, critical media outlets, and local and international NGOs are subject to harassment and attack
.
¹⁴

It bears remembering that Sri Lanka has conducted numerous inquiries into abuses and disappearances and even prosecuted a small number of perpetrators, even as the war raged during the 1990s. This is not to
overstate the success or impact of previous efforts, and these earlier commissions have been criticized for limited mandates and the absence of a clear connection between their work and judicial proceedings.
¹⁵
Nonetheless a brief review of these activities is in order, lest excessive credence be given either to claims that Sri Lanka is not capable of accountability, or that it would necessarily undermine stability or reconciliation.

In 2000,
the Batalanda Commission issued a report on allegations regarding torture and abuse at the Batalanda housing estate which implicated a senior superintendent of police and leading politicians, but its recommendations were not implemented. Similarly, in 2002, a
Presidential truth commission on Ethnic Violence covering 1981 to 1984 examined the causes and consequences of ethnic violence in the country. Although some analysts consider it a useful historical document, its recommendations were also not taken up, and it appears to have had little public impact.
¹⁶
When
President Kumaratunga was elected in 1994, she sought to follow through on electoral promises to address past abuses, creating a number of new mechanisms to investigate disappearances and political assassinations, including that of her own husband. She created small regional commissions, which encountered resistance from the military and police, who denied knowledge of abuses.
¹⁷
Other steps towards protection of human rights included plans to have senior military officers investigate claims of disappearances in the north and east, and the creation of a
Human Rights Commission under the president's direct supervision to monitor complaints of human rights violations by the
military, police, and other state bodies.
¹⁸
In September 1997, the final reports of the three regional commissions of inquiry were handed over to the president, and it was announced that their contents would be made public. In September 1997, the government publicly acknowledged that 16,000 to 17,000 people had disappeared during the crackdown on the JVP and promised to prosecute the perpetrators. One military commander in Jaffna made an unusual public promise to guard against future abuses
.
¹⁹

The reports covered political violence by both parties to the conflict around the country dating back to 1988. The commissions apparently inherited some 5,000 complaints from an earlier (1991) commission to inquiry into ‘involuntary removal’ of persons.
²⁰
A key concern of human rights advocates was that they did not inquire into violence before 1988 or after the Kumaratunga administration came into power.
²¹
The reports
were extensive, although the degree of investigation varied significantly by region.
²²
Although the mandates were the same, some named names, but others did not. Thus, for example, the commission investigating disappearances in the north and east had considerably less information, largely due to the security situation at the time it began its work. In particular, in Jaffna, the LTTE stronghold, the situation was such that the commission could not go to the region and investigate complaints, but instead invited Tamils residing outside the region to come to the capital and file with the commission at the ministry of justice.
²³
There was no consistency among reports regarding identification of perpetrators. Although the report for the northern and eastern provinces provided a list of victims and individuals alleged to be perpetrators, the other two commissions did not; the
report for the western and southern region explicitly ruled out such a list, citing the need for confidentiality pending further investigations.
²⁴

Finally, the commissions did not all address the same period of time. Although the mandates for all referred to the investigation of disappearances ‘at any time after January 1, 1988’,
²⁵
one report addressed disappearances through 1991, another through 1996, and one was less clear about its cut-off.
²⁶
Nonetheless, the initial accusations by human rights advocates that the commissions would be loath to examine any abuses under the Kumaratunga administration appear to have been somewhat excessive, although the record after 1994 is spotty.