Manikkalingam’s article touches two recurring debates within Transitional Justice, both of them as old as the discipline itself: first, the peace versus justice debate, and second, the question of sequencing reconciliation related measures. The article suggests that because a political solution is more important than war crimes trials, the sequence in which they are unveiled should privilege a political solution with war crimes trials coming later. In this response to his article, I claim that Manikkalingam’s dichotomization of a political solution to the national question and accountability for atrocity crimes is false, but also that in sequencing reconciliation measures, it is strategically better to establish the legal architecture to try atrocity crimes earlier rather than later.
The argument that a political solution to Sri Lanka’s national question overshadows the importance of prosecuting few perpetrators has a certain intuitive appeal. Yet, this analysis does not account for the role of unpunished atrocities in fuelling the ethnic conflict, and is therefore superficial. The Tamil political mobilization for equality in Sri Lanka predated independence and at least since independence has been consistently visited with unpunished violence in escalating degrees. Each unpunished episode of violence – what we would now call mass atrocity crimes – added fresh fuel to ethnic tensions and eventually to unhinged violence from both sides. The 1983 ethnic pogrom – indubitably the largest such attack against civilians of any ethnicity in post-independence Sri Lanka – quickly transformed a bothersome youth revolt into a full-fledged war of devastating proportions. Impunity and resulting violence, and the fear borne out of impunity, that this violence may be triggered at any time is thus at the heart of demand for autonomy. This is why Tamil politicians have insisted on the right to powers over police over and above fiscal and economic powers – control over physical security is, rightly or wrongly, perceived to be a more urgent and important concern. Thus, there can be no genuine settlement of the national question without ending impunity. The assumption that devolution alone – without accountability – is the panacea to the ethnic question ignores the reality that impunity for mass atrocities is inextricably linked to demands for autonomy, and that the political fallout of another mass atrocity cannot be controlled, and may permanently jeopardize any prospect for co-existence.
Manikkalingam’s article also ignore a central dynamic at play in Sri Lanka’s ethnic problem. A narrative of broken promises by national leaders lies at the heart of Tamil political consciousness. In this context, yet another failure to honour Sri Lanka’s recent promises on accountability would inevitably contribute to ethnic mistrust. The unilateral abrogation of the Banda-Chelva pact and the Dudley-Chelva pact by successive Sri Lankan governments, as well as other broken promised down the road figure extensively in any unbiased account of Sri Lanka’s ethnic troubles. Likewise, Sri Lanka’s commitments on accountability, now encapsulated in the latest United Nations Human Rights Council resolution of October 2015, form the basis of a political consensus between state and Tamil political leaders on how to deal with a past in which unspeakable atrocities were committed by both sides. Despite the vocal opposition of fringe elements within the Tamil polity, the leadership of the Tamil National Alliance negotiated with stakeholders on the fine print of the text and endorsed the resolution adopted by consensus in Geneva. Indeed, it has since claimed that the resolution is not merely a pact between the international community and Sri Lanka, but equally importantly as one between the State and the Tamil people. On that basis, it has called for the full implementation of its terms. If this pact is to be abrogated now, the abandoning of the Geneva resolution may one day come to be remembered with the same bitterness as the abrogation of the Banda-Chelva and Dudley-Chelva agreements.
Thus, treating the devolution question as distinct from that of accountability is analytically problematic, particularly given the specificities of the conflict in Sri Lanka. Any meaningful attempt to address the historical problems at the heart of the national question must ensure that impunity for mass atrocities is arrested, and negotiated agreements honoured. This requires some form of meaningful accountability for atrocity crimes on the lines suggested by the UNHRC resolution co-sponsored by Sri Lanka.
Even if one disagrees with Manikkalingam and asserts, as I do, that a political solution and accountability are inextricably linked, his prescription that accountability must be sequenced to follow constitutional reform nevertheless deserves attention. Sequencing Transitional Justice processes are a legitimate and widely used stratagem towards a variety of Transitional Justice goals. In the Latin American context of Transitional Justice in the 1980’s and 90’s, where right wing dictators either left a legacy of amnesty laws or enforced such laws on new governments through the threat of force, truth commissions helped uncover evidence of crimes and discredit former regimes, leading eventually to trials. More recently however, many countries have opted for trials and truth-commissions in tandem.
In Sri Lanka, there are no amnesty laws to overcome as in Chile and no imminent coup d’état as in the case of Argentina. Instead, a government with a two-thirds majority – albeit tenuous – holds the reigns, having promised in the Manifesto by which it came into power that the issue of justice for war crimes will be handled by national independent judicial mechanisms. The strategic question for Sri Lanka is what ordering of processes and mechanisms would optimize outcomes, rather than a question of which process has greater importance. With this in mind, I contend that the strategic considerations favour the establishment of a legal framework sooner – in mid-2016, as proposed by the Prime Minister – rather than later, after a new constitution is passed.
First, a new constitution dealing with devolution is by no means a foregone conclusion, and judging by the wrangling and delay over relatively tame issues of procedure in establishing a constitutional assembly, parking accountability till the constitution is established means a high likelihood it will never be addressed at all. Transitional Justice does take a long time, but the tough decisions are easiest taken at the ‘transitional moment’ when a government’s political capital is high and its detractors at their weakest. Unlike constitutional amendments, new laws for accountability do not require a two-thirds majority or a referendum. In this context, the wisdom of banking victories when you can makes good sense. Thirteen months down the line after a historic regime change, the window for Transitional Justice is beginning to close, and the political difficulty of establishing justice mechanisms will continue to rise. A year from now, if Sri Lanka has made no progress on accountability or on constitutional reform, the tone and timbre of Tamil politics would have shifted dramatically towards sharper rhetoric and increased frustration. If Tamil moderates are pushed out of the way, Tamil ultra-nationalists will provide their Sinhala counterparts ample fuel to end Sinhala moderates’ grip on power as well.
But critics may ask, would not the effort to pass contentious laws to enable war crimes trials reduce the available political capital for a political solution? I would claim that the government’s lack of clarity and messaging on the justice mechanisms it envisages is in any event extracting a political cost, as right-wing demagogues are provided the space to control the messaging about a future court and whip up unjustified fears of a witch-hunt against the military. This will continue, and may well intensify, even if the government parks the question of accountability for later as Manikkalingam suggests it does. One available antidote to this syndrome is for the government to be absolutely clear about what it intends to do, and establish the necessary mechanisms without delay. A sensible prosecutor could help allay fears by laying out a prosecutorial policy that makes clear to those not implicated in certain types of egregious crimes that they will not be harmed. In failing to act and projecting passivity, the government risks losing the narrative and losing support. A strategy of parking the issue for the future will only compound the problem and magnify fears.
Third, even if set up now, judicial processes including a special counsel for prosecutions will only lead to trials long after the deadline for constitution making has passed. Prosecutions of complex crimes take years to prepare, and if legislation is passed in 2016, the chances of controversial indictments and trials within the year or even early next year are vanishingly small.
For these reasons, I contend that strategic considerations demand the government move quickly to create the necessary legal framework for the trials of international crimes. This requires decisive action on its part. In this regard, the President and Prime Minister should take comfort in the fact that they have looked their political best when acting decisively. Instead, if they project weakness and timorous apprehension, the appeal of yesterday’s strong men will continue to grow.