A question of justice for all

by Kishali Pinto Jayawardene

(August 29, Colombo, Sri Lanka Guardian) Some months ago, a grizzled and soft spoken gentleman somewhere around in his mid sixties told me bluntly in Batticoloa that the people in his area did not 'believe' in the National Human Rights Commission and the National Police Commission.

These, he said in perfect schoolmaster's English, were 'constructs' of the Sinhalese government. 'We do not believe in them, we do not think that there is any point in having them or talking about them.'

'We are only against the government'

When informed that the rejection of these 'constructs' is shared by, for example, the parents and friends of a hapless university student in the deep South who had died at the hands of his police attackers, his response was deliberate. 'We are not against the Sinhalese people' he said quietly 'we are only against the government.'

And therein, in those softly spoken words, hangs a tale which is far more profound than any of the elaborate discussions conducted in Colombo with egos battling egos over tea and cakes.

The fundamental issue in this country is not so much of the majority vis a vis the minority. Nor is it merely of the alleged atrocities committed by a section of the government troops against civilians or against enemy combatants who had surrendered during the last phrase of the war between the government and the Liberation Tigers of Tamil Eelam. Instead it is first and foremost of the Rule of Law and of the brutality of the State, against Sinhalese, Tamils and Muslims alike. It is this brutality which should be confronted head on.

Diametrically contradictory emotions

To bring a somewhat distasteful analogy into the picture, focusing attention only on these issues is akin to what happened in relation to Sri Lanka's judiciary in the early part of this decade. Then, a degree of unwholesome attention in regard to the personal peccadilloes of the former Chief Justice diverted attention away from the core issue which was purely and simply, abuse of his power for political gain while in office. The many examples in this regard beggared the imagination of those left with a conscience in regard to a once highly respected institution. But by the time that the country woke up to the reality of the extreme subversion of the country's judicial process, it was far too late for any appreciable reversal of the tide.

Equally, to focus attention only on the atrocities that had allegedly occurred during the last stages of the conflict is counterproductive in the best sense of that word. To do so is to immediately range diametrically contradictory emotions against one another.

On the one hand, there are those who would contend that the options left to the government were limited in the face of the LTTE's despicable use of human shields. These opinions would undoubtedly be cheered by the reported (and yet un-contradicted) assertion by a former United Nations senior diplomats this week before the lamentably ill named Lessons Learnt and Reconciliation Commission (LLRC - what lessons? what reconciliation?), that international humanitarian law should not be applied to conflicts between States and terrorist groups.

The application of humanitarian law to internal conflicts

This assertion, of course, runs counter to basic principles of international humanitarian law as embodied in Common Article 3 of the Geneva Convention (IV) relevant to the protection of civilian persons in times of war, August 1949, which Sri Lanka ratified in 1959 even though the Protocols to these Conventions are yet to be ratified. What Common Article 3 distills is a set of simple protections premised on basic humanity. Codified, these protections prescribe that in the case of armed conflict not of an international character, each party to the conflict is bound without adverse distinction, to humanely treat persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.

Further, murder and torture, taking of hostages, humiliating and degrading treatment and extra judicial executions are totally prohibited in whatever circumstances. The wounded and sick shall be collected and cared for.

These are not startlingly new propositions. Much of the same prohibitions are contained in our constitutional guarantees. The right to freedom against torture, for example, is absolute. This right cannot be overridden in any circumstances, even in times of emergency or in war. As a state party, Sri Lanka has verbally and in written statements before international bodies, affirmed the unacceptability of the use of weapons that fail to discriminate between military and civilian personnel, the prohibition of indiscriminate killing and the clear distinguishing between combatants and non-combatants. And to that end, those who hold fast to the belief that these principles are absolute and that the Sri Lankan State ought to be held accountable to that standard, are undoubtedly correct.

Common problems of justice

But the application of this belief to Sri Lanka, in its post war stage, is what constitutes the problem। There are many who believe that a single focus on war atrocities will suffice to bring about accountability Yet, (returning to the theme of this column), this is not, by far, the approach best calculated to bring results.

Such an approach casually brushes aside the common problems of justice that are faced both by a Tamil schoolboy in the North and East and a Sinhalese university student (for example) in the South or indeed for that matter, a former Army Commander when he incurs the wrath of an unforgiving regime.

When they become victims of injustice, all are defined by a uniquely similar disillusionment regarding justice institutions in Sri Lanka as well as the oversight bodies that are supposed to monitor and correct rights violations. In that regard, as much as the executioners of the seventeen aid workers of Contra L'Faim (August 2006) or of the murdered schoolboys in Trincomalee (January 2006) have yet not been identified, the torturers of an innocent victim, Gerald Perera (tortured in 2002, killed in 2004) have been allowed to go free in the country's criminal justice system under a special law designed ostensibly to catch torturers.

This is an issue of justice that should equally concern the Sinhalese, Muslims and the Tamils, particularly those who confront these problems on a day to day basis, certainly not the elite in each community to whom, at best, these questions are relevant only in the abstract. Limiting ourselves to the cry that war atrocities should be investigated and that those responsible should be held accountable, is to ignore this most inescapable reality.