“The weak can never forgive.  Forgiveness is the attribute of the strong” -  Mahatma Gandhi 

The Panel’s Chapter on Sri Lanka’s concept of accountability and discussions of restorative justice provides the best opportunity   for constructive engagement with the report. It   deals with the foundational issues that apply to the process of accountability.

The Government’s Concept of  Accountability and  Justice 

On accountability the government stated that it would be guided by the philosophy of restorative justice. The government clarified its position on accountability in its exchange with the UNSG which is contained in the Annexes to the Panel’s report. It defined accountability as a combination of two processes: (a) individual accountability and criminal liability for wrong actions and (b) political responsibility for the processes which led to the breakdown of the ceasefire and the sequence of events up to the end of the military operation. On individual accountability the government said it would draw on the experience of the South African Truth Commission which applied the process of restorative justice directed at reconciliation , for political responsibility it cited the example of the UK Chillicot inquiry on the involvement in Iraq.  In defining political responsibility the Government includes  the state’s responsibility to protect its citizens. It includes the state’s responsibility for the citizens in the Vanni under the LTTE’s unlawful regime . Hence the relevance of CFA and its lessons.  The Lessons Learnt and Reconciliation Commission (LLRC) was to examine  how the Government of Sri Lanka exercised this responsibility  (during the period under review ) and how the political processes  and actions of all involved in what was termed the “peace  process” in Sri Lanka  culminated in the military operation against the LTTE  and what followed.

None of the statements issued by the government  contain  a detailed exposition of the concept of restorative justice and its principles  and their application to the post conflict situation. However there are various observations that the government makes on different issues that help us to identify some of the main elements of the process  the government has in mind.  At one point the Government affirms “that the work of the LLRC has to uncover the complete truth”. Therefore knowledge of the truth becomes the foundation of restorative justice and reconciliation. But in restorative justice the truth is important not for the punishment of offenders but for the acknowledgement of wrongs by the offenders and the full expression of “contrition” for the wrongs done. The term used in the government statement is “contrition.” Contrition becomes the next step in restorative justice. While the uncovering of the truth  “requires a focus on the past,” (again the words in the statement) the past once uncovered and expiated  through a process of genuine contrition “must be relegated to history” through forgiveness. Contrition is followed by forgiveness and reparation.  All communities who have been responsible for this past must participate in the process. Punitive or retributive justice is shaped and modulated by the application of the principles of restorative justice through such measures as rehabilitation and moral regeneration, “restrictive sentencing and non-custodial  sentences”.  This would be the process of restorative justice applied to individual accountability. Uncovering the truth in term of political responsibility would imply all parties acknowledging their share of the responsibility for what happened, learning from the lessons of the past and moving forward   to a durable process of peace and reconciliation. 

The Panel’s Concept of Accountability and Justice

In responding to the Government’s concept of restorative justice, the Panel draws on the concept of “transitional” justice. It   agrees with the government that processes of justice should be aimed at breaking the cycle of violence but stresses that accountability should ensure a process of accountability for past crimes. It also grants that the South African Truth Commission “did not lead to prosecutions” but states that the process of truth, of public acknowledgement of wrong actions which was its unique feature was not emulated in the Sri Lankan case. Referring to the more recent International Criminal Tribunal for the former Yugoslavia (ICTY) ,it also argues that the  “global legal landscape has  changed and that amnesties for certain crimes are no longer permissible.” The Panel therefore insists on a process of accountability which identifies those who committed crimes and ensures that they are brought to trial and duly punished. The concept of contrition and forgiveness which is a religious and moral principle different from a legal amnesty or pardon has no part in the system of accountability upheld by the Panel.

The Panel makes pointed reference to the accountability of the government for the events in the last stages of the war and states that the process of accountability set in motion by the government makes no mention of the accountability of government. To this charge, the government , of course,  has consistently given the answer that  the government and SLA were not guilty of any criminal acts. This would also be the answer of government to the Panel’s observation that Sri Lanka did not emulate the South African example. Given the government’s position, public acknowledgement and expiation of war crimes on the part of the government and SLA did not  arise. Uncovering the truth about all that happened and the acknowledgement of the tragedies that occurred and the expression of collective grief had to take other forms.

The Differences in Approach

The approaches taken by both the GOSL and the Panel agree on the need for uncovering the truth about the past but from thereon the differences in approach are of a fundamental nature and affect even the approach to the truth itself. The Panel’s approach is straightforward; it is that of the secular law giver who must uphold the process of accountability in society by identifying the offender, establishing guilt and meting out punishment with a due sense of proportionality. It has to arrive at a single version of the truth. To the GOSL the process of accusation conviction and punishment is inadequate for dealing with  accountability for any of the actions taken. It seeks guidance from the religious teacher and the moral philosopher for a more holistic approach which is directed primarily at a process of human restoration at a deeper level that would include both the individual and the larger society. The truth itself has to be approached with humility as humans have many versions of the truth. The government’s  main  focus is a durable process of reconciliation in which there is forgiveness and a conscious relegation of  the past to a chapter of history that is closed, a process of forgiveness and closure in which the government states all communities  must participate. Although the government has not elaborated on the moral and spiritual foundations of restorative justice it mentions in  passing that  the process of restorative justice draws on the  country’s spiritual  heritage.  Here it could draw on the core values which are shared by all four major religions which have co-existed  peacefully in the midst of a fierce ethnic conflict  This  again is a special feature of the Sri Lankan situation in which the Buddhist ethos of tolerance has played a decisive role. While the relative worth and practicality of these two approaches could be a subject of interminable debate, the  greater wisdom   and sustainability of  justice in the more holistic approach adopted by the government is undeniable. However the government would need to demonstrate the practice of restorative justice and how it is concretely manifested in all its aspects.

The Buddhist approach to punishment, like any other approach, cannot really be separated from its understanding of human psychology and its vision of human possibility. This suggests that criminal justice is not solely a secular issue, for questions of fairness and justice cannot be completely separated from the religious perspectives they historically derive from: for the vast majority of humankind, crime, punishment and reform are still inextricably bound up with religious views about sin, judgment and forgiveness. Justice is one of those ultimate issues that bridge whatever distinction we try to make between sacred and secular, and our criminal justice system will always be subordinate to our larger vision of how people should relate to each other.

The goal of a legal proceeding in the  Tibetan Buddhist judicial system  was to calm the minds and relieve the anger of the disputants and then - through catharsis, expiation, restitution, and appeasement - to rebalance the natural order. . . . A primary purpose of trial procedure was to uncover mental states if possible, and punishment was understood in terms of its effect upon the mind of the defendant

Two excerpts from an article by a Buddhist scholar on Healing Justice the Buddhist Perspective ( David Loy ) are relevant for our understanding of the concept of restorative justice.

The Panel’s conclusions about the government’s process of accountability.

The entire tenor of the Panel’s criticism is based on the premise that the government’s process of accountability is deficient because it does not include investigation of allegations of war crimes committed by the government. The government’s answer as stated earlier is that such an approach to accountability for the last stages of the war is wholly unwarranted. In response to the Panels criticism that the LLRC has no mandate to investigate war crimes the government states that the LLRC is mandated to uncover the complete truth on the entire sequence of events  up to May 19th including the period when the SLA is alleged  to have committed war crimes  and it is empowered to investigate any allegation of war crimes  that is made to it in the course of its inquiry. The difference between the approach of the government and that of the Panel is that the government does not inquire into what happened in the last stages of the war within an accusatory framework that holds the threat of prosecution and punishment. It does not do so because it considers such an approach both inappropriate and unwarranted on the information that is already available to it regarding the discipline maintained by the army and the actions taken  in the extreme conditions faced in the battlefield. However the panel refuses to deal with the position as stated by the government.  On the assessment of the panel the main deficiency of the LLRC  is that it is not the  investigative body that the Panel would like to have. Here there is no meeting ground for the government and the panel. Although government has not expressly stated it , the work of the LLRC in uncovering the complete truth will describe  what happened in the battlefield  and hopefully will answer  the misdirected judgments made by the Panel and human rights activists. 

The Panel makes a series of criticisms on the way that the LLRC has functioned up to date. It admits that it did not have the opportunity of meeting with the LLRC and acquainting itself with the work directly. The Panel’s observations are based on what it has gathered from various secondhand sources and the LLRC website. The Panel raised several questions regarding the LLRC to which the Government provided detailed answers which apparently the Panel decided were not adequate and has proceeded to make its critical observations on the same issues – the procedures for truth seeking, witness protection, lack of a victim- centred approach. It admits that it “ was not able to discern  fully the overall methodology”  of the LLRC  but goes on to state its conclusions on the partial information it has gathered and makes statements such as “the panel has received reports suggesting manipulation of witnesses ” “ the panel is unable to conclude that sufficient practical measures  are in place etc …”-  all  indicating  that they did not have adequate information on the working of the LLRC. The criticisms the Panel makes are however followed by concluding comments which are inconsistent with the main thrust  of the Panel’s assessment. “The LLRC offers a potential useful opportunity for the beginning of a national dialogue regarding the final stages of the war” “Because the Panel has not yet concluded, it is not possible to make a comprehensive and final assessment”. Despite the reservation expressed in the last comment the panel  has pre-judged the outcome by extensively criticizing  the  work in progress for its quality  and  effectiveness. The Panel’s inability to obtain adequate information is of course understandable as the LLRC had no contact at all with the Panel. In the circumstances it is difficult to understand how a responsible group such as the panel could have taken on itself to list these shortcomings when it was not able to have a full discussion with the LLRC on all the relevant issues. It is tantamount to one judicial body commenting on how another judicial body is conducting a case while hearings are in progress.

The comments the Panel  makes on the independence  and impartiality of the LLRC have to be considered in the light of their admittedly incomplete knowledge of the Commission.The members of the LLRC have admittedly the knowledge expertise and first hand experience to deal with the matters which come under the mandate of the Commission.  The involvement some of them have had with government as public officials during the period reviewed could be an advantage taken together with the fact that these are officials who have won high regard for their professional integrity.  The representation in the panel is also diverse enough to provide the checks and balances that are needed for an impartial outcome.  It is ironic that this charge is made by a Panel against whom serious charges of conflict of interests are brought.

To say the least, the Panel’s assessment of the LLRC stands out as a regrettable violation of professional norms. It appears to have the explicit intention of detracting from the Commission’s standing and undermining the domestic process of accountability which Sri Lanka had set in motion.

<< Truth and Accountability : The Last Stages of the War in Sri Lanka - Introduction

<< Chapter 1 - Issues relating to the Appointment and the Status of the Panel

<< Chapter 2 - Analysis and Appraisal of the Report - Criteria

<< Chapter 3 - The Narration of Events and Allegations

<< Chapter 4 - Issues Concerning the Application of International Law

>> Chapter 6 - Measures for Advancing Accountability : The Domestic Justice System and further Obstacles

>> Chapter 7 - The Recommendations of the Panel

>> Chapter 8 - Conclusions