The rule of law and war crimes

| by Kishali Pinto Jayawardene

( April 08, 2012, Colombo, Sri Lanka Guardian) In the months following the March 2012 rebuke administered to the Sri Lankan government by the United Nations Human Rights Council, critical self introspection is necessary as to some of the basic assumptions which drive the post Geneva discussions.

And as tempting as it is, this questioning cannot be directed solely at an increasingly impossible Government and those Ministers (few and far in between as they are) who still retain the ability to think critically. This would be the easy option.

Yet forsaking that superficial approach, the ambit of such introspection needs to be wider, encompassing not only other political parties but also general opinion makers from the government and non-governmental sector, including the media, academics, professionals and activists

Demonstrably little understanding as to what the Rule of law means

First and foremost, it has become increasingly evident in the post March 2012 debates that the Rule of Law occupies a somewhat unfortunately ambiguous role, being all things to some people and none at all to others. This fundamental lack of unanimity in thinking has made effective collective interventions in a way that actually changes government policy, difficult if not impossible. Let us see what some of these differences are.

On the one hand, there appears to be the assumption that talking of the Rule of Law is the 'easy way out' which avoids confronting 'hard' questions such as the fate of the thousands of Tamil civilians who were caught up between the Liberation Tigers of Tamil Eelam (LTTE) and government troops during the last stages of the fighting in 2009. Political parties who come with a mandate from the Tamil people are marked in their reluctance to focus on the Rule of Law, preferring instead to talk of the historic grievances of the Tamil people. From this point of view, the Rule of Law appears to be seen as a problem affecting the majority in Sri Lanka with which the minorities have little empathy.

On the opposite side of the spectrum, the political parties which constitute this Government have demonstrably little understanding of what the Rule of Law means in its most basic sense and each day, engages in myriad actions which drives this country down an increasingly precipitous path towards anarchy.

Misapplication of the term 'accountability'

These different perceptions of what the Rule of Law meant naturally enough that initial opinions to the report of the Lessons Learnt and Reconciliation Commission (LLRC) were mixed. Those who wished the LLRC to enter into strong findings against the government in respect of the events that occurred in May 2009 were disappointed in its refusal to go further than calling for investigation into individual incidents of alleged violations.

Increasingly the term 'accountability' came to be used as a term relevant only in regard to war time abuses. This misapplication of what 'accountability' means, which is no more and no less than insisting on the democratic accountability of an elected government towards all its citizens in fulfillment of the social contract, pervaded almost every aspect of discussion. It was most evident in the responses and reactions of the foreign media and by international non-governmental organizations. From this point of view, the significance of the LLRC's findings as to basic violations of the Rule of Law affecting minorities as well as the majority and the necessary steps that must be taken by the Government in this regard, was of little account.

On its own part, the Government has reacted defensively to that segment of the LLRC report pertaining to the Rule of Law, claiming that the LLRC had exceeded its mandate. This is however far from the case which is evident to any objective analyst taking pains to read the Report carefully. Perhaps with more than an ounce of shrewdness, the LLRC had justified its emphasis on the Rule of Law by simply making the obvious connection that to talk of reconciliation between the majority and the minorities in Sri Lanka would be quite impossible without centering the Rule of Law as the necessary focus.

It was from this essential recognition that the Report's severe strictures on the Government's non-observance of the Rule of Law became manifest. Before much time had passed, it also became quite evident that this was indeed the Government's weakest and most vulnerable point, from a strategic minimum.

Non-implementation of recommendations of past Commissions

And as was immediately observed in these column spaces the very week that the LLRC Report was published, this was a rare instance when a Commission had used unequivocally stringent language when asked to comment on and report on the actions of an incumbent administration. One or two other past Commissions had also looked into events occurring during the time of that appointing Presidency itself, one recent example being the Bindunuwewa Commission of Inquiry in 2001 appointed by former President Chandrika Kumaratunga.

But this was a Commission appointed to look into one specific incident, namely the killing of Tamil youths by the villagers of Bindunuwewa while they were undergoing rehabilitation in a camp. In contrast, the LLRC had been asked to look into and examine events of a widespread and particularly contentious nature occurring between a particular time period. The tasks were therefore very different and undoubtedly in the latter case, far more onerous.

This is however quite a different observation from saying, (as some opposition politicians have done), that the LLRC Report was the only instance where a fact finding body had presented good recommendations aimed at reversing Sri Lanka's slide down the democratic precipice. The contrary is actually the case. More than eleven Commissions had engaged in many of these same tasks during the past more than fifty years with the one common consequence being that these recommendations had been uniformly disregarded by all governments, ranging from the blue to the green.

The responsibility for this collective failure has therefore to be taken by all political parties in this country. In some instances, as was the case in the Bindunuwewa Commission, the Commission came to well derserved findings of responsibility on the part of senior police officers who stood by when Tamil inmates of the rehabilitation camp was being irrationally massacred, which were confirmed in a criminal trial process by the High Court.

However, these findings were reversed thereafter by the Supreme Court (2005) when the accused police officers appealed. This is one of the many examples of the unpalatable gap that one finds between findings of a Commission of Inquiry (even when confirmed by a judicial trial at a lower court) and the appellate process in which technicalities of law predominate at the expense of the victims. Again, this is precisely why Sri Lanka's criminal law and legal procedure needs to be radically reformed to meet extraordinary circumstances of the responsibility of superior officers (the so-called Command Responsibility theory) when human rights abuses occur.

Presently, prosecutors need to fit them into the straitjackets of narrowly defined penal offences which were not meant to cater to such special situations. It is a first step that the LLRC has asked for an offence of enforced disappearances but this is just the first step. This doctrine of Command Responsibility has anyway been interpreted and decided on by the Supreme Court in the context of constitutional protections as vicarious responsibility of superior officers so taking this further into the sphere of criminal law is imperative.

More unanimity needed in our approach to the Rule of Law

In sum, it needs to be emphasized that the reform of Sri Lanka's legal systems and its actual practice within the confines of the Rule of Law cannot and should not be a matter for the majority alone. Accountability is not a matter for the minorities alone.

This cannot be perceived as such and to continue to do so only plays into the hands of a Government which is demonstrably callous in its disregard of each and every such concern. It is time that far more unanimity is seen in our approach to such matters on which the very democratic survival of this country rests.