Allegations On War Crimes And How To Investigate Them?

By Laksiri Fernando -February 27, 2013

Dr Laksiri Fernando

It is normal that those diehard ‘patriots’ who are not willing to be self-critical of one’s own country or government or even some sections of the armed forces would dismiss any allegations on war crimes or anything similar with various credible, partly credible and mostly incredible arguments. But there can be others who look at the issues and allegations from a longer term perspective and see the value of independent investigations to strengthen the already won over (relative) peace, democratization and reconciliation in the country.

Perhaps I was the first to question the reliability of the revelations of the ‘White Flag’ incident by the former Army Commander immediately after the Sunday Leader article in a Rupavahini interview. I called the accusations irresponsible for his former position since he said he heard it from a third party which he did not reveal. All appeared politically motivated at that time and he himself retracted some of the statements later. By then the first round of Channel 4 footages were out, but the authenticity of the sources were questionable and therefore I didn’t make any comment. I was simply disturbed. But things have changed since then.

Credible Allegations

When the Darusman report came out, I made a critical assessment of the report disputing some aspects but said the government should take the report seriously and the allegations should be investigated. After all it was a UN sponsored report and the allegations were both on the armed forces and the LTTE. There cannot be any doubt that Sri Lanka is duty bound to investigate alleged ‘war crimes’ on its own or in coordination with the UN under the prevailing international laws. Any country’s sovereignty is subject to the international laws and in practice to what can be called the ‘international reality.’ If Sri Lanka does not conduct investigations, there is a possibility that the UN or the International Criminal Court (ICC) imposing such an investigation on Sri Lanka. Whether such an imposition is hypocritical or not is a different question.

Since the Darusman report and until recently my position has been that Sri Lanka can and should investigate the allegations. The LLRC did not investigate the allegations and its main mandate was to come up with proposals for reconciliation which they did in an admirable and an independent manner. Likewise an independent national commission on war crime allegations could have alleviated the concerns; and the reconciliation strengthened. But no commission was appointed for the reasons best known to the government. Now the ball has been almost put to the international court.

Let me briefly explain why the allegations should be investigated. The reasons are both moral and legal; and both national and international. The alleged crimes are something happened on the Sri Lankan soil. Even our regular judiciary has a mandate to investigate at least some of them. Extra judicial killings directly contravene the fundamental rights in the constitution and war or emergency is not an excuse. On the international side, Sri Lanka is party to the main international covenants and the international humanitarian law. Therefore, if the government had initiated credible investigations nationally then no one needed to shout about ‘international interference.’

Moral Obligations

The matter is not only legal but also moral. There are victims and their relatives. They should be appeased and assured of justice. One way of assuring ‘justice’ is punishing the perpetrators and compensating the victims. There is a possibility of forgiveness if they genuinely repent. There is a victim community and they may feel the victimization collectively. This is not a matter that can be discarded through obnoxious arguments. This is a matter quite central to a genuine reconciliation.

Not only justice but the truth should be known as a lesson for the future. Sri Lanka has suffered so much of violence since 1970s. It is only recently that we uncovered a mass grave in Matale that possibly belongs to the late 1980s. Sri Lanka has experienced too much of brutal killings and it appears from what people write and say that our supposed to be sane minds are also completely brutalized. We need some ‘therapy’ in the form of knowing the truth and realizing the ‘brutality.’

There are countries which are beset with even more violence than Sri Lanka. But I have not seen a country like ours that justifies violence directly and indirectly and trivialize the killings. We need a new determination to make a complete stop to this insane behaviour both indulging and defending violence. What is the point in having a ‘miracle of Asia’ if it is based on injustice, killings and brutality?

Don’t get me wrong that I am only condemning the atrocities of the army or terrorism of the state. The organizations like the LTTE and the JVP are also responsible (equally or more) for the atrocities in the past. The Tamil community should realise that the LTTE was a terrorist menace in the country and defeating it militarily was a must to bring a situation like today at least for us to debate these matters in relative peace. We should also appreciate the good soldiers and the commanders in the armed forces for doing the right thing without violating human rights or the humanitarian laws. But obviously there had been some culprits. Our effort should be to make a complete break to violence in the future. The JVP has come around now to a large extent and the LTTE or their remaining supporters should do the same.

For all these purposes the truth should be known. There are allegations on both sides. The allegations of thekilling of Prabhakaran’s son, interrogation and killing of Ramesh and the two eye witnesses revealed by Frances Harrison on the ‘White Flag’ incident are credible to investigate. Equally credible are the allegations on the LTTE loading the injured cadres and civilians into buses and blowing them up to blame the government troops. Shootings of those who attempted to flee the war zone are also numerous.

Investigations

One may ask the question ‘what is the point in investigating’ these matters since the perpetrators on the LTTE side might not be found any longer and therefore any investigation might be imbalanced. That may or may not be the case. Some perpetrators must be hiding among the diaspora, in the country or in the prisons or within the government itself. The truth should be known not in a religious fashion but in a sociological manner. The investigative procedure should not only be judicial but also sociological.

A commission should look into the questions of not only who killed x and y and on whose orders, but what were the individual and political motives behind them if any? What were the social, structural and institutional contexts within which gross violations took place on both sides and what are the remedies proposed to avoid them in the future? What are the general lessons for the country not only looking at the last stages of the war but also the previous cycles of violence (1971, 1978-9, 1983 and four rounds of Eelam Wars) and their underlying causes?

If the investigation is purely international it would only look into the accountability issues. If the investigation is purely national it might lack credibility and try to side step accountability issues while focusing on some pseudo-sociological issues. Therefore, the best way to go about the truth, justice and also accountability might be a commission on the lines of what was set up in Cambodia, both national and international.