by Niran Anketell
(This piece contains material extracted from a longer article by the author titled “Selling Justice Short: Sri Lankan Civil Society and Individual Criminal Liability for Atrocity Crimes” presented at “Ethical Futures: Dialogues on State, Society and Ethical Existence”, a conference hosted by the International Centre for Ethnic Studies in May 2013. Final publication forthcoming)
As the dust settles on the Commonwealth Heads of Government meeting in Colombo, the press has reported that Sri Lanka may be considering the establishment of a South Africa style Truth and Reconciliation Commission with the assistance of the Commonwealth and South African government.
The South African TRC (SA TRC) continues to possess an enduring appeal for Colombo-based, as opposed to North and East based, civil society NGOs. Very few, if any, conversations on reconciliation and transitional justice within Colombo civil society networks conclude without references to the SA TRC as the paradigmatic case of the ideal transitional justice model. The Sri Lankan government has also sought to draw parallels between its own attitude to post-conflict justice, reflected in the Lessons Learnt and Reconciliation Commission, and the SA TRC.
As a preliminary observation, however, it is useful to note that contemporary Sri Lanka and post-apartheid South Africa are vastly different political and social contexts. The SA TRC model and amnesties were worked out after a formal transfer of power from the regime responsible for the vast majority of crimes under apartheid to the leaders of the liberation struggle. Moreover, the dominant religious belief system in South Africa—where Christian rituals of repentance and forgiveness have significant theological resonance—is fundamentally different to the religious beliefs of the majority of Tamil, Sinhala and Muslim victims.
The SA TRC is widely known as providing amnesty from prosecution to perpetrators who came before the SA TRC and made full disclosure of all the relevant facts relating to their crimes. As such, it is perceived in Sri Lanka—wrongly—as the triumph of a spirit of reconciliation and restorative justice and a rejection of criminal accountability. Thus, the way in which the SA TRC experience has been understood in Sri Lanka is deeply flawed. In supporting my claim, I highlight the absence in Sri Lanka of three specific conditions for the functioning of the SA TRC, that would inevitably render any attempt to transplant that process in contemporary Sri Lanka harmful in the extreme.
First, contrary to the way in which the SA TRC has been understood in Sri Lanka, the model as envisaged by its framers was not designed to exclude prosecutions. Instead, the conduct of prosecutions in respect of perpetrators who did not apply or did not qualify for amnesty was central to the working of the SA TRCs design. Institutionally, the success of the SA TRC depended on perpetrators confessing to their crimes. The threat of prosecution was precisely the tool necessary to push perpetrators to make full disclosure.
In fact, empirical studies on SA TRC data demonstrate that applications for amnesty were low among state security groups whose members were not subject to investigation and prosecution. Conversely, groups that had members prosecuted or were under investigation—such as the ‘elite’ police task forces—had greater numbers of amnesty applicants. Thus, the threat and conduct of prosecutions enhanced the prospects of truth seeking, because information such as the location and nature of death of victims, which only perpetrators had access to, was made available to the SA TRC in applications by perpetrators for amnesty. This emphasizes the complementary nature of truth and justice and is an important reminder that the Sri Lankan government’s attempted dichotomization of ‘punitive justice’ and ‘restorative justice’ is flawed in practice.
The SA TRC Report itself acknowledged that the appeal to the self-interest of prospective applications was well conceived. Moreover, the SA TRC’s final report recommended “a bold prosecution policy” in respect of those who did not apply or did not qualify for amnesty, “in order to avoid any suggestion of impunity or of contravening its obligations in terms of international law.” In fact, the South African government’s failure to follow up on the recommendations of its own commission by instituting a meaningful policy of prosecutions has been sharply criticized by many South Africans, including Bishop Tutu and other members of the commission.
In Sri Lanka, the government itself has explicitly stated that it has no interest in pursuing what it deems ‘punitive’ justice and has ruled out a policy of prosecution in respect of crimes committed during and after the war. Thus, any attempt to institute a SA TRC style process would be flawed for the reason that there would be no incentive for perpetrators to make full disclosure. To be clear, conditional amnesty for full disclosure is not a sine qua non for every truth commission. Commissions in Argentina, Chile, Peru, Sierra Leone and Bahrain among many others focused on eliciting the truth through witness testimony and investigation, including through the use of forensic science. However, if the government opts to take the investigative route, it will have to demonstrate a change of heart and a willingness to investigate alleged crimes by its own leaders. Another sham commission in a long line of cover-ups will only serve to highlight impunity in Sri Lanka.
Second, the SA TRC represented a political compromise of interests between the ANC and the National Party—the two main political parties representing the Black and Afrikaner communities respectively. While the SA TRC was bitterly criticized by many parties, including the ANC which attempted to block the release of the final report, the underlying political compromise securing the end of apartheid into which the TRC was locked—which all parties had come to accept as irreversible—permitted the TRC to function with at least a minimally sufficient degree of political legitimacy.
Thus, even though studies show Black victims feeling betrayed by the TRC, the process had sufficient legitimacy to forestall political campaigns to undo compromises already made. Unlike in Latin America where political movements forced unilateral amnesties to be retrospectively withdrawn, the South African conditional amnesty compromise has withstood attempts to retrospectively invalidate it for the very reason that it was a compromise. The negotiations around the conditional amnesty deal evidence this political bargaining.
By 1992, the findings of the Goldstone Commission, which inquired into human rights abuses committed by the government, together with the increasingly inevitable reality of impending change, drove the NP government to demand that indemnity offered previously to ANC functionaries must also be offered to state functionaries. However, the ANC maintained that apartheid era crimes must be prosecuted. Approaching 1994, the ANC’s position on amnesty softened. While the party remained doggedly opposed to blanket amnesty, they made critical concessions and appeared willing to consider conditional amnesties predicated on full disclosure. Indeed, the ANC’s position was driven by a deep realism. For one, the NP government began exerting tremendous pressure on the ANC to concede to its demand for amnesty by threatening to prosecute the ANC’s leadership for human rights abuses committed by the ANC in refugee camps overseas. More critically, as Louise Mallinder notes, “the ANC became convinced that peaceful elections would be impossible without the support of the security forces and the security services made it clear that the price of their loyalty was an amnesty.” As Dullah Omar—then ANC negotiator and later Justice Minister—acknowledged: “without an amnesty agreement there would have been no elections.”
In Sri Lanka, the contrast could not be starker. Negotiations between the government and the TNA have been stalled with little indication from the government that it has any interest in pursuing a negotiated and permanent settlement of Sri Lanka’s lingering ethnic problem through direct negotiations with the TNA. Thus, unlike in South Africa, where the SA TRC model represented and was a key feature of a permanent political bargain between the two major political forces on either side of the ethnic divide, a Sri Lankan effort to mimic the SA TRC process will merely represent the government’s unilateral attempt to manage its international pressures. As a result, a Sri Lankan TRC will not persuade the Tamil community that it is a genuine mechanism, and will alienate victims from the inception. In fact, it will likely exacerbate the tension and lack of trust between the Tamil and Sinhala communities and impede genuine reconciliation.
Finally, the SA TRC was conceived and devised in the 1990’s, before the crystallization of the international legal principle deeming impunity laws illegal. The law, as it stands today, requires the pursuit of investigations and prosecutions for grave violations of IHL and IHRL amounting to international crimes. A number of multi-lateral treaties, resolutions of United Nations (UN) bodies, codifications of customary international law, best practices recognized by the UN and decisions of international courts have all unequivocally recognized that there is a legal duty to prosecute serious international crimes. Thus, domestic and international judicial decision makers alike have retrospectively declared amnesty provisions illegal. In Prosecutor vs. Gbao, the Appeals Chamber of the Special Court for Sierra Leone – of which Sri Lankan Judge Raja Fernando was a member – held that there is support for the claim that there is a “crystallized international norm to the effect that a government cannot grant amnesty for serious crimes under international law.”
Given the illegality and the shift away from granting amnesty for serious international crimes, it is unlikely that the international demand for accountability in Sri Lanka will recede; even in the event the Sri Lankan government attempts to deal with the issue of accountability issues through the provision of amnesty. Further, any amnesties granted in domestic courts will not bind foreign or international courts from prosecuting the beneficiaries of local amnesty laws. More critically, the provision of illegal amnesties by Sri Lankan law will only confirm the prevalence of impunity in Sri Lanka, and will result in redoubled efforts for the internationalization of investigations and prosecutions. Thus, any unilateral attempt by the Sri Lankan government to grant amnesties to its own in an effort to stave off accountability is very likely to be counterproductive.
For these reasons, any attempt to mimic a SA TRC process in Sri Lanka will not succeed. The Sri Lankan government’s unwillingness to consider—indeed the regime’s own self-interest to prevent—criminal investigation and prosecutions of those responsible for atrocities committed during and after the war forecloses the prospect of hidden truths being unearthed through a TRC. Further, in the absence of a permanent political deal on constitutional issues, a TRC that offers any amnesty—conditional or otherwise—to perpetrators will be perceived as illegitimate by Tamils and will exacerbate divisions between the state and the Tamil minority.
Finally, even viewed from a narrow strategic lens, any attempt by the government’s leaders to clothe themselves with the protective shield of a local amnesty provision will likely be counterproductive and inspire greater internationalization of the pursuit of justice in respect of serious crimes. For these reasons, Sri Lankan civil society groups, Tamil political formations and the international community must unequivocally reject any attempt by the government to constitute a SL TRC, and communicate this message clearly to the government and to the Commonwealth. courtesy: Open Democracy