A Path To Peace: Building A Domestic Mechanism For Criminal Accountability In Sri Lanka

By Damintha Gunasekera –

Sri Lanka’s history of ethnic conflict and insurgencies since gaining independence in 1948 has left a long-lasting impact on the nation, particularly with the Sinhalese and Tamil ethnic groups. After a brutal insurgency lasting from 1983 to 2009, the Sri Lankan government has been under immense pressure from the United Nations and western countries to pursue criminal accountability against the military and former government officials to achieve justice and reconciliation. 

The Sri Lankan military has been accused of deliberately attacking civilian infrastructure, including makeshift hospitals, as well as civilians in the government proclaimed “No Fire Zone.” International observers and organizations claim that at least forty thousand civilians are alleged to have been killed by the military during the last phase of the war. Thereafter, the ‘White Van Culture,’ which entailed arbitrary arrests, forced disappearances, torture, and extrajudicial killings conducted by men arriving in white vans, targeted human rights activists, journalists, government dissidents, and Tamil youth. Investigations and allegations point out that this violence was conducted primarily by paramilitaries and military intelligence services working under the directive of a former powerful government official.

However, the pursuit of criminal accountability faces numerous constraints and challenges, including the use of ‘Victor’s Justice’ by the former Rajapaksa governments, overwhelming support for the military from the majority of the population, and socio-cultural issues preventing criminal accountability, particularly among Sinhalese chauvinist politicians, extremist groups, and clergy.

The Yahapalanya government (2015-2019) made significant strides towards justice and reconciliation, including the implementation of four transitional justice mechanisms, namely the Office on Missing Persons (OMP), the Office on Reparations, a Truth and Reconciliation Commission, and a Special Justice Mechanism. However, only the OMP and Office of Reparations were somewhat functional. Despite some progress, there has been no adequate action taken to pursue criminal accountability, except for a handful of cases, thus slowing the pace of implementation.

Recently, Sri Lanka’s reconciliation program has regained momentum with President Ranil Wickramasinghe at the helm, and this offers an opportunity to advocate for further progress toward finally reconciling the nation after its brutal history. It is crucial for the government to continue to address criminal accountability while maintaining peace and stability. The UN and western pressure to kickstart the program may be decreasing for various reasons including geopolitics, as Sri Lanka was increasingly viewed as leaning toward China, so the Yahapalanaya government received 2 two-year extensions in 2017 and 2019 from the UNHRC to fulfill its international commitments, including implementing a judicial mechanism.

However, I believe that to achieve true justice and reconciliation, Sri Lanka must continue to make progress toward criminal accountability and address the grievances held by the Tamil minority that led to the outbreak of the war. Only then can the nation begin to heal and move forward towards a more peaceful future with shared history. 

Recommendations; 

1. Establish a Truth Commission and a domestic judicial mechanism to investigate and prosecute criminal accountability for crimes committed during the period of 2008-2015. This will help address the concerns of Sri Lankan society about foreign oversight and will ensure that justice is served. While the UN and other governments can provide assistance in building capacity, the process should be led by the Sri Lankan government.

2. Propose a law similar to the due-obedience law implemented in Argentina to protect soldiers who were following orders. This will provide an incentive for soldiers and officials to come forward and confess to their crimes, which should be the main focus of truth-seeking. Prosecuting all soldiers responsible is not realistic, so the law can help balance justice with practicality.

3. Prosecute higher-level government and military officials for their crimes, but consider reduced sentences or amnesties for some, depending on the severity of their crimes. Trials should be seen as moral reparations for survivors and as a way to restore their dignity and help them become part of society again. It may be necessary to prioritize peace over justice to move forward as a country, but this should not exempt officials responsible for gross crimes against humanity from prosecution abroad.

4. Provide reparations to survivors and their families based on the findings of the Truth Commission and Courts through the Office of Reparations. This will help address the harm caused to them and support their recovery.

5. Publicize the proceedings of the court through the media and newspapers to generate public sympathy and support for survivors and their families. This will also help overcome any democratic challenges facing the Transitional Justice program.

6. Memorialize the sufferings of Tamil civilians and brave journalists/Human Rights activists through memory spaces and memorial plaques. This will help develop a shared memory of the recent past with society and provide a space for reflection and critical thinking.

Overall, these recommendations aim to strike a balance between justice and peace, taking into account the realities of the situation in Sri Lanka. They prioritize the needs of survivors and their families, while also considering the broader societal context. Let’s hope President Wickramasinghe is ready to take the mantle ahead this time around. 

*Damintha Gunasekera is an independent researcher who holds a B.A in Political Science from the University of Massachusetts and an M.A in International Affairs from The George Washington University. He has worked in several government and non-government organizations in numerous countries. Damintha is passionate about promoting economic justice, reconciliation, and developing Sri Lanka.

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