The slow wheels of justice and change: a Sri

Lankan case study?

Ima
ge via Rights Now
by Niran Anketell
- on 05/17/2014
Five years since the end of the war, the state of affairs
in Sri Lanka is likely to evoke feelings of frustration and despondency for most readers of this series of
essays. The military has entrenched itself in the governance of the North and East and continues to
suppress Tamil political aspirations. Religious tensions have been rekindled, threatening the safety of the
Muslim community. The main opposition party appears weak and divided. Meanwhile, the international
community has remained engaged and concerned, but is only incrementally increasing bilateral and
multilateral pressure on the government. This picturewhat may be termed the micro-picturedoes not
present an optimistic prognosis for urgent change.
Yet, the most ardent of pessimists willingly grant that while the micro-picture remains deeply troubling, the
balance of powers has shifted and shifted noticeably in the right direction. These gains have been made on
multiple fronts. In the North, the EPDPs opportunistic early victories in Municipal Council elections in the
East and North that were constructed on appallingly low voter turnouts are a matter of the past. Instead, the
political resolve of the beleaguered Tamil population has been forcefully asserted, and a strong Tamil
political leadership has emerged. The desperate cries of victims and civil society for an international
investigation into serious abuses and crimes by both sides has been heard, with the total roll back of the
regimes May 2009 Human Rights Council success. Meanwhile, the UPFAs staggering miscalculation in
scheduling Provincial Council elections to closely follow the Geneva vote demonstrated fissures in the
ruling alliance, the limits of a cynical political strategy which counts on a Sinhala backlash to international
pressure, popular dissatisfaction in governance and a hugely significant 10 point drop for the UPFA, even
in its own Southern bulwark. This macro-picturethat of noticeable change for the better in the balance of
powers presently sustaining the deeper malaiselooks better now than it did at any point since 2009.
It is in this context that the efficacy of the struggle of victims for a measure of justice and accountability in
respect of mass crimes (or atrocity crimes) committed by both sides during the war must be assessed. Five
years since 2009, many are wearied over the perceived slow pace of international justice mechanisms, and
the ability of developments internationally to influence events on the ground. Some of this frustration was
evident in conversations around the March 2014 session of the Human Rights Council, with some fringe
Tamil and diaspora groups lashing out at the resolution that was eventually passed. The arguments made
by some Tamils in venting this frustration, for instance that the resolution offered no benefit to the victim
community and was motivated purely by US geostrategic interests in the Indian Ocean, were strikingly
similar to the Sri Lankan governments own claims, and lent tangible support to the governments advocacy
effort. Clearly, the slow and incremental pace of international justice has its discontents. I argue, however,
that much of this discontent is attributable to either a failure to appreciate the incremental nature of
transitional/international justice processes, or the imposition of unreasonable expectations on those
processes, or both.
In an opinion editorial penned after the arrest of the butcher of Srebrenica Ratko Mladic sixteen long years
after he was initially indicted by the International Criminal Tribunal for the former Yugoslavia, Geoffrey
Robertson QC noted that the wheels of international justice grind slowly, but they grind exceedingly small.
There are a number of obstacles to the success of international or foreign criminal trials; principle among
them being the issue jurisdiction and the difficulty of enforcement. Further, these two factors are almost
always substantially if not wholly contingent on the existence of sufficient political will to create jurisdiction
(for instance by exercising universal jurisdiction or the Security Council referring a case to the ICC) and/or
enforce decisions by apprehending and producing suspects before the relevant courts. Defendants in
international or domestic human rights prosecutions are often enormously powerful actors ensconced in
power and wealth, such that even in the successful transitions in Latin America, the trials of those
responsible often took place decades after the punishable crimes were committed. Moreover, international
justice mechanisms have no independent enforcement powers and rely largely on states for impetus and
implementation. Further, victims and civil society are often hamstrung by the complex world of international
criminal jurisdiction, especially given the apparent retreat of countries like Spain that are generally given to
the expansive exercise of universal jurisdiction. The birth of the International Criminal Court offered some
hope that these obstacles would be addressed, but in the absence of Security Council action, the Court is
helpless in the face of crimes committed by non-state party nationals in the territory of non-state parties.
Thus, success in international or foreign prosecutions is contingent on the fortuitous confluence of political
will, jurisdiction and enforcement. The most successful pursuits of justice are often characterized by victims
willingness to fight despair and disillusionment, however long the wait. It is a lesson activists interested in
justice for Sri Lankan victims must learn.
The question of political will is of fundamental importance here. Precisely because states are key actors in
international justice processes, the road to justice will always be paved with political roadblocks. While
political will for justice is instantly available for an ICC referral in some cases (such as in Libya), it has to be
painstakingly built in others. Sri Lanka is paradigmatic of the latter, in that there was not even sufficient
political will for a critical resolution in respect of Sri Lanka at the Human Rights Council in 2009. Instead,
the Sri Lankan government was able to muster 29 of the 47 votes in the Council. The subsequent and
dramatic shifts at the Human Rights Council are attributable to a number of reasons, but it is clear that the
process was incremental. Here, it is important to note the role of the Human Rights Council in incubating
broad cross-regional political will through sustained attention and resolutions, particularly in relation to
intransigent regimes. In fact, scholars have noted that fact-finding bodies often utilize findings of fact to
ratchet up international political will for decisive steps towards international justice. For example, the
Councils sustained engagement on North Korea over many years which culminated in the devastating
Kirby Commission report appears to be leading inevitably in the direction of a Security Council vote on ICC
referral. To be clear, compelling Chinese and Russian abstentions (as opposed to a negative vote which
would trigger the veto provision) on a Security Council resolution on North Korea will be an uphill task. But
the recent Arria formula meeting on North Korea at the Security Council featuring presentations by the
Human Rights Council mandated Kirby Commission demonstrates the utility of fact-finding bodies for
ramping up political will, and for transferring political will from one UN forum to another.
Many have also questioned the impact of the broad pursuit of justice on domestic realities. One form of this
skepticism holds that because the human rights situation in the North and East has not eased since 2012,
the Human Rights Councils actions are ineffective. These sorts of arguments betray a simplistic error in
understanding the promise of international justice to influence events on the ground. In reality, the most
ardent proponents of international justice do not even claim that nascent justice processes yield immediate
results on the ground. Instead, they argue that the threat of international action functions as a stick with
which to disincentivize intransigence by imposing costs on bad behaviour. Moreover, as demonstrated by
the responses to the ICCs actions in Kenya and Sudan, international pressure and the threat of
prosecutions often trigger domestic backlashes. Sri Lanka presents a classic case where this dynamic is
starkly visible. While the Tamil polity and civil society invites international pressure in the hope that this
pressure will induce the regime to make critical concessions, those opposed to international pressure warn
of a nationalist backlash that would set Sri Lanka further back. In this context, it is critical that any use of
international pressure on the question of accountability be undertaken within the context of a robust
domestic political strategy that actively undermines the regimes ability to unleash a backlash.
Sri Lankas political opposition and civil society appear to be making some headway in this regard. They
have done so by pursuing a two-pronged strategy. First, by projecting the resolution as something not
merely fixated with accountability, but having beneficial elements for Sri Lankans, they have helped
assisted in a shift toward the centre in mainstream Sinhala political discourse. In this, they are helped by
generous references in the resolution to problems of concern to those in the South, such as the Weliveriya
incident, religious intolerance and the rule of law. The Colombo based think tank Verite Researchs data on
Sinhala newspaper coverage over the last three years offers a fascinating parallel. Verites data appears to
suggest that while the innocuously worded 2012 UN Human Rights Council resolution was met with a
zealous nationalist response across the Sinhala press, the much stronger 2014 resolution was met with a
divided response where the centrist press representing 58% of the Sinhala readership adopted a
noticeably more moderate approach and urged the government to embark on a domestic reform agenda in
a bid to stave off further international scrutiny. The recent election results from the Western and Southern
Provinces buttress this observation.
Second, the opposition has sought to delegitimize the government by critiquing the government for inviting
international pressure through its failure to adequately pursue domestic reform. There is some precedent
for this strategy in the remarkably successful campaign against Slobodan Milosevic carried out by the
radical student grouping Otpor. The groups salient successes were its success in uniting the flailing and
divided opposition behind a common candidate and delegitimizing Milosevics regime. Despite a strong
undercurrent of Serbian nationalist sentiment against NATO bombardments and Western interventionism,
Otpors success was to convince the Serbian people that Milosevics international troubles rendered him a
liability that the Serbian people could ill afford to carry.
To conclude, if domestic actors desiring justice for atrocity crimes are to succeed, it is critical that their
activism is rooted in a deep understanding of the promise and limitations of international justice processes.
Inflated expectations of the speed and efficacy of international justice will lead to disillusionment, apathy
and disengagement. In contrast, a principled yet strategic instrumentalization of international justice
processes can offer promising rewards, provided also that this strategy is a part of a cohesive domestic
strategy for meaningful political change. The success of the struggle for justice in Sri Lanka hinges on the
choice between impulsive emotionalism and carefully calibrated rational politics.