By Dr.Dayan Jayatilleka
It was gratifying that the argument I consistently made three years ago at the UN Human Rights Council and in every space available to me, namely that Sri Lanka’s war met the criteria of a Just War, has been made at the LLRC. There were extensive references to Hugo Grotius, but no acknowledgement that Just War doctrine definitively originated many centuries before Grotius (AD 1583-1645), with St Ambrose (c. AD 339-397), St Augustine (AD 354-430), and St Thomas Aquinas (AD 1225-1274).
There was a more important omission. Just War theory has developed in three stages or ‘moves’, two of which were mentioned at the LLRC: the criteria by which a war has a just cause (‘jus ad bellum’) and those by which a war is judged to have been waged by just means and methods (‘jus in bello’). A just war must demonstrably meet both these criteria and ours (demonstrably) did. Just war doctrine has, for some time now, developed a third ‘movement’ (or ‘leg’ as in a tripod): the category of a Just Peace; ‘jus post-bellum’. Whether or not its outcome is a just peace is increasingly deployed as a criterion of whether a war was just or unjust.
Early in 2007 I had made the case for Sri Lanka in Just War terms to the Archbishop of Canterbury, Dr Rowan Williams when he called on President Rajapaksa. His tacit concurrence was manifested in his remarks at a press conference at the conclusion of his visit in which he stated that the state’s response to the Tigers must perforce have a military component. Dr Williams, known for his refined intellect, was not known as a supporter of wars, still less wars of aggression, and had distinguished himself by his open, ethical opposition to the invasion of Iraq. His Colombo press briefing made the Tamil Diaspora activists and their Sinhala fellow travellers such as Dr. Brian Seneviratne howl in outrage.
In the presence of President Rajapakse, several Ministers, officials and ranking members of the Christian clergy including Bishop Duleep de Chickera, the Archbishop of Canterbury challenged me with a counter question. He had been wrestling with just war theory for about fifteen years and was concerned about a ‘just outcome’. Why did I think a just outcome would result from Lanka’s war and what were the chances, he queried. I replied that the wresting of territory from the Tigers would be accompanied by the legitimising, automatic re-enfranchisement of the Tamil people; the re-opening, however rudimentary, of democratic space and revival of a political process in those areas would enable the criteria of a just outcome to be met to some degree while further advance towards that goal was possible by negotiation between the state and the elected Tamil representatives.
A roadmap for the transition to a sustainable peace was sketched by Prof GL Peiris in a recent keynote lecture at a symposium organized by the Centre for Security Analysis, Chennai, and the Regional Centre for Strategic Studies, Colombo:
“It is a multifaceted strategy... the humanitarian considerations ... are reinforced by the economic and political initiatives that would complete the strategy...We propose to hold elections to the other local government bodies in the North and then, as we did successfully in the East, in due course, sooner rather than later, to hold the Provincial Council elections in the Northern Province”. (October 26, 2010)
Speaking ten days earlier at Pandit Nehru’s residence Prof Peiris demonstrated a sure conceptual grasp of the core issue:
“In multicultural, multiethnic societies, what are the economic, political and social structures that you need to create in order to make it possible for everybody living in the country to feel at home, to feel a sense of genuine belonging without any sense of inferiority or exclusion? Devolution of power falls into place within that overall setting.
The Thirteenth Amendment to the Constitution of Sri Lanka, which was a sequel to the Indo-Sri Lanka Accord of 1987, established for the first time in Sri Lanka’s constitutional history a line of demarcation between central government and provincial functions...However, recent experience has shown that the Thirteenth Amendment is incomplete in a basic respect.
In a country like Sri Lanka, where the minority communities do not live exclusively in a particular geographical area, but are scattered throughout the country, there is a need for a power sharing mechanism in the Centre as well...There are many ways of achieving that objective, one of which is a bicameral legislature...” (RK Mishra Memorial Lecture, Oct 15th 2010).
In their presentations to the LLRC, Cardinal Malcolm Ranjith, preceded by Anglican Bishop Duleep de Chickera put forward critical ideas which they doubtless intend as guidance and guidelines for jus post bellum; a Just Peace. While a just war does not guarantee a just peace, a just peace cannot issue from an unjust war.
Therefore, the necessary call for a just and lasting peace is best situated on a continuum with and reinforced by embedding within an acknowledgement of the basically just character of the war from Oct 1987 on (when the Tigers bloodily turned on a third party mediated and enforced reform option), and at the least in 2007-9.
It is a complex, challenging transition from just war to just peace.