Foreword to Restorative Justice
Terrorism is a major feature in the developing countries of South and East Asia, disrupting civil society and wreaking violence on the civilian population: in India, Pakistan, Sri Lanka, Afghanistan, Thailand, Indonesia, Philippines and Xinjiang in China. These are internal law and order problems though all these terrorist movements have external actors who are encouraging, funding, arming and even training these terrorist movements for geo-political reasons. The long running terrorist movement in Sri Lanka by the Liberation Tigers of Tamil Eelam (LTTE) began in 1976, funded and armed principally from external sources, proved to be one of the deadliest. The CIA dubbed it the equal of Al Qaeda, which it bettered by creating an army, navy and air force with external support and encouragement, creating even its own mini-state. It boasted the largest army of young suicide bombers. But on 18 May, 2009, the Sri Lankan security forces, after a two year military campaign, wiped out the LTTE military machine and its military leaders. It was the first and only real military victory to completely eliminate a terrorist movement in a country and secure lasting peace in our present times.
In the face of defeat in the final military campaign, the LTTE, with criminal lack of concern for the local civilian population around them, rounded up around 300,000 civilians of all ages and used them as hostages. Using this human shield, LTTE artillery fired and bombarded the security forces with impunity and asked their powerful international friends to persuade the government to give up its offensive so as not to risk the hostages. The security forces offensive was carried to a successful conclusion, with all possible care for the nearly 290,000 civilians who were rescued by the security forces at great cost to themselves. In what was principally jungle warfare using infantry (not aerial bombardments, as in other wars), 6,500 security personnel lost their lives in the entire campaign and 25,000 were injured. But Sri Lanka was vilified for its achievement and faces international censure by the West.
The author of this article examines the legal implications of the international inquiry that the United Nations Secretary-General has initiated, primarily targeting the Sri Lanka government and military for its unique achievement in ending a terrorist movement and instituting a wide-ranging rehabilitation process in areas controlled and devastated by the terrorist movement.
Restorative Justice is better than Accountability
Contributed by Neville Laduwahetty
The United Nations Secretary General (UNSG) has appointed a panel of experts “to advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the conflict” (statement by the spokesperson for the UNSG on Sri Lanka). This final stage of the conflict could be characterized as either an armed conflict or as an internal law and order situation. If it designated an armed conflict, international humanitarian law prevails, while if it is designated an internal law and order situation, human rights laws apply. Both sets of laws cannot apply simultaneously. Consequently, there is ambiguity in the statement as to which law applies. Under the circumstances, establishing accountability becomes a flawed exercise from the outset.
Pressure to appoint such a panel was initiated by prominent NGOs and elected representatives of governments whose political capital remains the Tamil diaspora resident in Western countries. One such NGO was The International Crisis Group (ICG) which called for an international inquiry into alleged crimes committed during the last five months of the conflict, in a report which stated that there were “reasonable grounds to believe the Sri Lankan security forces committed war crimes with top government and military leaders potentially responsible. There is evidence of war crimes committed by the LTTE and its leaders as well, but most of them were killed and will never face justice” (the Island newspaper, May 18, 2010).
This report by the ICG became the basis for a debate in the British Parliament during which Labour MP, Siobhan McDonough, “wanted the present government to press ahead with what the previous government had been doing by various means – to pile pressure on the Government of Sri Lanka to go for and international inquiry” (Asian Tribune, June 17, 2010).
US Supreme Court ruling
The recent ruling by the United States Supreme Court in a case that weighed free speech against national security will have an impact on this decision by the UN to appoint an expert panel. In its ruling “…the court voted 6 to 3 to uphold a federal law banning ‘material support’ to foreign terrorist organizations. That ban holds, the Court explained, even when the offerings are not money or weapons but things such as “expert advice or assistance” or “training’ intended to instruct in international law or appeals to the United Nations” (The Washington Post, June 22, 2010). While this ruling would not have a direct bearing outside the US, it certainly would affect those in the LTTE diaspora based in the US and others in the US associated with activities that promote post-conflict agendas of the LTTE. This in turn may affect the enthusiasm of LTTE diaspora supporters outside the US such as Labour MPs in the UK when they realize that there would not have the support of their US counterparts. This is natural, considering the influence the US yields in global affaires, particularly when it comes to issues relating to terrorism.
The case in question was “Holder v. Humanitarian Law Project”. A Washington Post report (June 22, 2010), stated: “Chief Justice John G. Roberts Jr. in writing the majority opinion said that those challenging the ban “simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization”. The law, Robert wrote, “is on its face, a preventive measure – it criminalizes not terrorist attacks themselves, but aid that makes the attack more likely to occur”. All can agree that money is ‘fungible’, Roberts wrote: funds sent to groups for humanitarian aid could free up money that could be used for violent ends. But he said the same was true of “material support”. “It also importantly helps lend legitimacy to foreign terrorist groups – legitimacy that makes it easier for those groups to persist, to recruit members and to raise funds – all of which facilitate more terrorist attacks”. He said that “Under material support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights and international law. They may advocate before the United Nations. But they may not coordinate the speech with the groups on the terrorist list” he said.
This ruling makes those in the US who would have participated in efforts to “coordinate” with the LTTE to be in violation of the judgment by the US Supreme Court. Furthermore, by appointing a panel of experts, the UNSG has failed to recognize the concerns of the US Supreme Court regarding “lending legitimacy” to the LTTE, an entity that continues to be designated as a terrorist organization. However, it is unlikely that the UNSG would have acted without acquiescence of officials in the US. Such acquiescence may be the result of efforts by LTTE supporters to “coordinate” with organs of the US Government to internationalize and lend legitimacy to their campaign against the Sri Lanka government. Whatever may have happened in the past, the US Supreme Court ruling is bound to affect future efforts by LTTE supporters to “coordinate” with organs of the US Government as well as others in the US.
UN expert Panel
The statement issued by the UN states that “It will look into the modalities, applicable international standards and comparative experiences with regard to accountability process, taking into account the nature and scope of any alleged violations…”. Considering the uniqueness of the situation which is without parallel in any previous internal conflict, and where over 300,000 civilians along with thousands of LTTE cadres were held hostage by the LTTE as a human shield behind fortifications, there are no “international standards and comparative experiences” by which the expert panel can establish accountability.
The circumstances that prevailed without precedent during the final stages of the conflict caused the Sri Lankan Government to improvise strategies to meet unique challenges presented by the LTTE. Similar unique challenges are faced by the NATO forces in Afghanistan, and they too are compelled to invent responses on a daily basis. To assess accountability under circumstances that have no parallel is not possible in the absence of established guidelines. Therefore, what would be meaningful is to use the challenges Sri Lanka had to face along with challenges in other theatres for the express purpose of developing appropriate guidelines for the benefit of member states when they have to deal with situations such as the use of civilians as human shields; humanitarian needs of civilians held hostage; suicide bombers disguised as surrendering soldiers; firing of artillery from buildings falsely claimed to be hospitals and schools and a host of other subterfuges adopted by non-state actors during today’s asymmetrical, non-international conflicts.
The statement issued on behalf of the UNSG also states: “The Secretary General remains convinced that accountability is an essential foundation for durable peace and reconciliation in Sri Lanka”. Whatever the UNSG’s conviction, the experience of 17 member states that have had Truth and Reconciliation Commissions (TRC) was that Restorative Justice fosters Reconciliation better than accountability when it comes to internal conflicts. It is this conviction that caused the TRC of South Africa to grant amnesty at least to those who sought amnesty for the violations committed by them. Other TRCs granted a general amnesty to the perpetrators of violations based on the conviction that it was a better foundation on which to build the healing process of reconciliation than processes of accountability.
Conclusion
Restorative Justice is a better foundation for a durable peace and reconciliation than accountability. Restorative Justice is an approach that focuses on the needs of victims, offenders and community instead of accountability that attempts to punish only the offenders leaving the victims unattended except from the satisfaction from the punishment meted out to the offender. Therefore, if the UNSG is serious about establishing the “foundation for peace and reconciliation”, he should encourage the Government of Sri Lanka to set up processes that fosters Restorative Justice, because it benefits both victims and offenders through solutions that promote repair, reconciliation and rebuilding of relationships.
Processes of accountability on the other hand detract attempts at reconciliation. By advocating an accountability process the UNSG has fallen victim to the agendas of the LTTE diaspora and their supporters. The agenda of the LTTE diaspora is to obstruct reconciliation because maintaining an irreconcilable relationship is their raison d‘etre in order to justify Tamil Eelam. For their supporters, punishing those responsible for ending the conflict is sweet justice, judging from the limits they were prepared to go to in order to save the LTTE leadership. Under the circumstances, the UNSG’s action regarding establishing accountability is tantamount to providing material support to the LTTE, a banned terrorist organization.