Transitional Justice and Reconciliation in Sri Lanka

©2018 Dr Romesh Senewiratne-Alagaratnam

In March 2018 a short article was published online in The Diplomat titled “Transitional Justice in Sri Lanka: From Denial to Delay”. It was authored by a Swiss-trained Indian lawyer by the name of Yashasvi Nain, who the article says is working as a Programme Officer at the Commonwealth Human Rights Initiative where he leads its international advocacy program at the UN Human Rights Council. His Linkedin profile says that he studied at the Rajiv Gandhi National University of Law (Punjab) from 2008-2013 followed by training in international criminal law and International refugee law at the University of Geneva. He has also worked with the Office of the UN High Commissioner for Human Rights and the UN High Commissioner for Refugees. The former Indian Prime Minister Rajiv Gandhi was assassinated by a female Tamil Tiger (LTTE) suicide bomber in 1991.

Nain claims that Sri Lanka has failed to live up to its promises and that a UN report by the Deputy High Commissioner for Human Rights “specifically highlights the delays in constituting the long promised transitional justice mechanism on the atrocities and human rights abuses committed by both the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE)”.

The LTTE was militarily defeated in May 2009, when its military leader, who had led the organization’s “armed struggle” for “Tamil Eelam”, Vellupillai Prabakaran, was killed. This ended a 30-year civil war, but not the calls for “Tamil Eelam” among the Tamil expatriates who had backed the Tamil Tigers and the separatist war. The “struggle” for Tamil Eelam was continued by the so-called “Transnational Government of Tamil Eelam” (TGTE) headed by the Tamil Tigers’ New York-based lawyer Visuvanathan Rudrakumaran, who calls himself the ‘Prime Minister’ of the TGTE. The TGTE has established offices in 10 nations, namely the USA, UK, Canada, Norway, Germany, Italy, France, Switzerland, New Zealand and Australia, but notably not in India or Sri Lanka. Sri Lanka formerly banned the TGTE, which still flies the LTTE flags at its events and broadcasts (despite the LTTE being banned as a terrorist organization in several nations in which the TGTE is active).  Wikipedia describes the TGTE as a “government in exile” but the organization is a farce and does not have the support of the vast majority of Sri Lankan Tamils. The TGTE claims to be democratic (unlike the LTTE) and committed to achieving Tamil Eelam by peaceful political means, but has wasted a lot of money trying to mount vexatious legal action against the Sri Lankan military leaders that defeated the LTTE and charge the Sri Lankan government with ‘genocide’. In truth, if there was genocide committed in Sri Lanka, it was conducted by the LTTE, and not the government. It was the LTTE that tried to rid the “north and east” of Sri Lanka of Singhalese and Muslims.

The legal concept of ‘transitional justice’ was developed after the Nuremberg Trials following World War Two, when Nazi and Japanese war criminals were tried by military tribunals and imprisoned or executed. It was justice of the victors, followed by efforts to de-Nazify Germany. However, under Operation Paperclip many of those involved in atrocities, including psychological warfare, human experimentation and collection of human tissue for study, were not prosecuted. Both the Soviets and the Allies competed for known war criminals with what was regarded as valuable scientific knowledge.

According to the Nuremberg precedent, it is Sri Lanka and the Sri Lankan military who should be trying the defeated forces – the LTTE – which started a separatist war, with foreign backing, in 1977. This was a war of aggression and it is a war crime to start a war. The war was also a front in the Cold War, something that is not fully appreciated and little written about. However, a close study of the war in Sri Lanka, the Korean War and the Vietnam War as related fronts in the Allied war on Asia, helps one understand the duplicitous role that several ‘Western’ nations played in the war and why the separatist propagandists talked about the Tigers being armed with “AK 47s” (Russian-made Kalashnikov assault rifles) which are depicted on the Tamil Tiger flag, along with a ring of AK 47 bullets surrounding a charging Chola Tiger. The LTTE claimed to be secular and socialist, but never democratic. The military wing was hierarchical, and Prabakaran was the boss of the military wing, but the LTTE’s international operations were more opaque and less hierarchical. The Tamil Tigers were big on cult-worship, fear, violence and terrorism but small on ideology.

Transitional justice includes judicial measures, like criminal prosecutions and non-judicial measures like truth commissions and reparation programs. Nain wrote in March this year that “the government had not yet made public the draft Bills for a Reparations Office and a Truth and Reconciliation Commission”. He fails to mention the Lessons Learnt and Reconciliation Commission (LLRC) that was held immediately after the war. The LLRC made several sensible recommendations and was not the government white-wash its critics had predicted it would be.

The matter of reparations is one that needs holistic appraisal. Who should compensate the people in Sri Lanka who suffered in this war and how should the compensation and reparations be paid? To settle this matter the war needs to be looked at in its entirety, and those who profiteered through the war (and there were many war profiteers) should be identified and charged. It is those who waged war against the small but sovereign nation of Sri Lanka that should pay reparations. The governments that overtly or, more usually, covertly supported the LTTE included India, Britain, the USA, Canada, Australia, New Zealand, Norway and Israel. The USA, UK, Canada, Australia and New Zealand form the ‘Five Eyes’ (or Eschelon) alliance, that shares intelligence and runs joint psy-ops. The ex-Mossad agent Victor Ostrovsky wrote in his book By Way of Deception how the Mossad (the Israeli secret service) trained both the Sri Lankan forces and the Tamil Tigers, at the same time.

 

Nain does not mention reparations by the LTTE’s backers and focuses on allegations of human rights abuses by the Sri Lankan government, police and military. It is common knowledge, however, that India armed and trained the LTTE and rival Tamil gangs of youths before unleashing them on Sri Lanka in the early 1980s. Later India sent troops to Sri Lanka (the IPKF or Indian Peace-Keeping Force) to disarm the gangs it had trained and the only gang that refused to disarm was the LTTE. The LTTE had, by then, eliminated the rival Tamil leadership of other separatist gangs (‘armed groups’). They also murdered several Tamil leaders who they accused of being ‘traitors’ for being prepared to work with the Colombo government, including the much-loved Tamil mayor of Jaffna Alfred Duraiappah, who was killed by Prabakaran himself in 1975. The mayor was in his sixties and had gone to a Hindu temple to pray, though he was a Christian, and was gunned down after he greeted the young Tamil lads who had taken out the contract to kill him. The gang was led by Prabakaran who was 21 and had formed his first armed gang, called the Tamil New Tigers (TNT), in 1972, when he was only 17 years old.

Though Prabakaran was known as the leader of the LTTE, the self-declared “theoretician and strategist” of the organization was an older man by the name of Anton Balasingham. In traditional Tamil culture the older brother – anna – has rank and authority over the younger brother – thambi. In the LTTE Balasingham was known as “Anna”, while Prabakaran was known as “Thambi”. Balasingham was the brains while Prabakaran was the brawn. But the real brains behind Balasingham was his second wife, the Australian-born and trained nurse Adele Ann Wilby, who met Balasingham in England when he was nursing his terminally ill wife Pearl, and married him in 1978. It was she who wrote the notes at the repeatedly unsuccessful peace talks that the LTTE held with the Sri Lankan government, in which her husband was the chief negotiator and “strategist” for the LTTE.

Anton Balasingham was raised a Roman Catholic but became a self-professed Marxist. Marx famously said that religion is the opium of the masses. In the 1960s Balasingham worked in Colombo as a journalist and editor, translating foreign news into Tamil, before getting a job as a translator (Tamil and English) for the British High Commission. It was the British High Commission that arranged for him to go with his wife Pearl, who he had married in 1968, for medical treatment in England. This was in 1971 and she died in 1976, with a diagnosis of chronic renal failure due to chronic pyelonephritis. During her illness Balasingham met Adele, who had trained as a nurse in Warragul in rural Victoria (in Australia).

Balasingham was recruited into the LTTE by the organization’s London representative and moved to Tamil Nadu with Adele. In 1986 he accompanied Prabakaran when the LTTE leader met Rajiv Gandhi, the Indian Prime Minister who he later assassinated using a programmed suicide bomber. The Balasingham couple orchestrated the LTTE’s activities from Madras, but moved to Jaffna, temporarily, in 1987. In 1987 war erupted between the Indian Peace Keeping Forces (IPKF) and the Tamil Tigers and the Balasinghams fled back to London.

In 1990 the Balasinghams returned to Sri Lanka to lead the LTTE delegation in the peace talks in Colombo. The peace talks failed, but the IPKF withdrew and the Tamil Tigers took over the Jaffna peninsula. The Balasinghams were in Jaffna at this time, when the LTTE gave Muslim citizens 24 hours to get out of Jaffna or be killed in a clear act of “ethnic cleansing”. Ethnic cleansing is a euphemism for genocide. The LTTE’s intent was to rid ‘Tamil Eelam’ of both the Singhalese and the Muslims, who were mostly Tamil-speaking as their mother tongue, but identified themselves as Muslims, Moors or Sri Lankans rather than ‘Tamils’.

After the Sri Lankan Armed Forces retook the Jaffna Peninsula in 1995, the LTTE forced thousands of Tamil civilians to accompany them as a human shield, as they retreated into the jungles of the Vanni, where they established what they called their ‘capital’ in the village of Kilinochchi. This was when Adele Balasingham was filmed by an Australian film crew handing out necklaces of cyanide to young Tamil girls – ‘cadres’ of the ‘Women’s Wing’ of which she was the boss. They respectfully called her “Aunty”. The girls were ordered to swallow the cyanide if they were captured, and terrorised that they would be raped and tortured by the “brutal” Sri Lankan soldiers if they were taken alive. They were told to swallow the poison to “protect their honour”. The real reason was to protect the secrets of the organization. Cyanide poisoning is a particularly unpleasant way to die.

The Balasinghams returned to London in 1999 and flew on to Oslo, Norway, after Anton Balasingham developed renal failure (he was a long-standing diabetic). In Oslo he had a kidney transplant with a kidney donated by a young Tamil Sri Lankan and was able to continue his political leadership of the LTTE, leading discussions with the Norwegian government that resulted in the February  2002 ceasefire followed by peace talks in Thailand, Norway, Germany, Japan and Switzerland. These talks were not held in good faith by the LTTE, which used the opportunity to collect funds and prepare for the next “Eelam War”.

It has been said that truth is the first casualty of war. Balasingham was a propagandist. He was based in London, the centre of dissemination of British colonial and neo-colonial propaganda, and worked for the British High Commission. The British gave him a base to wage war against the sovereign nation of Sri Lanka that they used to rule as the Dominion of Ceylon. The British continued to arm and train the Sri Lankan military while also giving a base to the LTTE in London and elsewhere in Britain. After the war ended they are providing a base for the TGTE, which still flies the LTTE flag and is actively rewriting history and concealing the truth about the LTTE and its crimes against humanity. Furthermore, Sri Lanka is not the only nation in which Britain has contributed to warfare and division. “Divide and rule” was an accepted strategy of the British imperialists and colonists, and employed throughout what is now called the Commonwealth of Nations.

After she returned to England from Sri Lanka, Adele Balasingham wrote the autobiographical The Will to Freedom about her years as the boss of the LTTE’s women’s wing. In it she argued that the fact that the LTTE allowed women to fight was a sign of women’s liberation and the fact that that they wore cyanide necklaces was a sign of their commitment to the cause. Nothing could be further from the truth. The young women were carefully programmed, through slogans and images of the “leader” to be prepared to sacrifice their lives to protect the secrets and especially the whereabouts of the mainly male leadership. The suicide bombers were given their own name – the Black Tigers – and their last meal was the “honour” of dinner with Prabakaran himself. Balasingham and the real masterminds of the LTTE created a cult figure out of Prabakaran and  promoted a glorified image of the killer as a “liberator of Tamils” in Tamil Nadu and among the Tamil ‘Diaspora’ (expatriates). This propaganda is readily evident on the Internet, but began before there was an Internet.

 

Transitional Justice

 

Transitional justice includes both judicial measures such as criminal prosecutions and non-judicial measures like truth commissions and reparations programs.

Transitional justice implies transition from authoritarian, repressive regimes or civil conflicts to a more peaceful, democratic future. This is part of the movement to promote democracy as a system of government, as opposed to the Chinese (or Communist) system. The LTTE claimed to be Marxists and to be against the caste system, but in practice the war involved poor “low caste” Tamils in Sri Lanka being killed and maimed and being indoctrinated into a suicidal, militaristic mindset while the rich “high caste” Tamils enjoyed the luxury of professional life in the West, while sending money to buy weapons for the poor Tamils and Singhalese to be killed. Millions of dollars were collected every year in the USA and UK, and later in Canada and Europe. Meanwhile the sob stories of would-be asylum seekers and refugees were repeated without due scrutiny by various Western NGOs, human rights organizations and media outlets. Over the 30 years of the war the LTTE built up a considerable international propaganda network.

The fact is that Sri Lanka has had a democratic system of government since it obtained independence from Britain. Though President Mahinda Rajapaksa was widely denounced in the West as “dictatorial” and “authoritarian”, when he lost the election in 2015 he left power without calling in the military to protect his “rule” as some of his enemies predicted he would. The efforts to demonise President Rajapaksa and his brother Lt Col Gotabaya Rajapaksa were extreme, with comparisons with Hitler’s regime by people entirely devoid of historical knowledge and good sense.

Criminal prosecutions for transitional justice can be held in international or domestic courts. Sri Lanka is not a signatory to the Rome Statute that established the International Criminal Court (ICC), but there are several individuals who led the LTTE that live in countries that are signatories, including Adele Balasingham and Visuvanathan Rudrakumaran.

After the war many LTTE cadres and leaders were given amnesty after de-radicalisation and rehabilitation by the Sri Lankan government. Some were given employment in the military and have been involved in the dangerous work of clearing mines. The progress of mine-clearing in Sri Lanka compares well with the situation in other nations in which landmines have been sown. As part of the transitional justice measures the end-user certificates and sales and use of landmines by both sides should be examined, as well as the source of other weapons, including chemical weapons like cyanide and explosives. Possible links to Imperial Chemical Industries (ICI) and Orica (the ICI subsidiary based in Australia that exports cyanide, explosives and electronic detonators) should be explored as part of the investigation into the truth about the war and who profited from it.

Truth Commissions

 

Some of the questions that might be investigated by the truth commission:

  1. Who sold the weapons and who purchased them?
  2. What weapons were bought by Prabakaran and his outfit since 1972?
  3. Trace end-user certificates for weapons
  4. How many casualties from LTTE attacks?
  5. How many injured in LTTE attacks?
  6. How many fatalities from LTTE attacks?
  7. Names of civilians killed by LTTE
  8. Ages of civilians killed by LTTE
  9. Mode of death/cause of death as per death certificate if issued
  10. Names of people killed in LTTE attacks
  • Names of civilians and armed forces injured by LTTE
  • Names of civilians killed/injured in government attacks
  • Names of injured requiring hospital care
  • Names of hospitals treating injured
  • Nature of treated injuries
  • List of drugs used in treatments
  • Fatalities/deaths in hospital
  • Cause and mode of death as recorded by hospital
  • DNA analysis of remains
  • Names of missing persons in all 3 languages

 

According to Wikipedia, transitional justice aims at

  1. Halting ongoing human rights abuses
  2. Identifying past crimes
  3. Identifying those responsible for human rights violations
  4. Imposing sanctions on those responsible
  5. Providing reparations to victims
  6. Preventing future abuses
  7. Security sector reform
  8. Preserving and enhancing peace
  9. Fostering individual and national reconciliation

Nain claims that there is ongoing torture by Sri Lankan police and that “attacks, death threats, surveillance and harassment of human rights defenders and victims of violations has continued”. This needs to be taken with a grain of salt. Sri Lanka has a history of being maligned by India and the West by critics who fail to examine their own countries for egregious human rights abuses. The psychiatric system in the UK and India are cases in point.  There is also the problem of embellished or false reports by Sri Lankans seeking asylum in the West, for which they need to prove ongoing persecution. This is a big industry, which the TGTE boss Rudrakumaran is part of as a “refugee lawyer”.

Regarding the identification of past crimes it is worth noting that in the Nuremberg Trials the crimes of the ANZAC and Allied victors were not investigated or prosecuted. The Sri Lankan government has extended amnesty to many thousands of LTTE cadres that have committed crimes against the state, and chosen not to prosecute known LTTE leaders who cooperated with the armed forces, police and government. This has only been done if people have renounced violence. Some of the recalcitrant LTTE fighters are still in jail. It is reasonable to ask that these people be charged or released and their names made available for the missing persons investigations.

Imposing sanctions on those responsible requires tracing the LTTE funding and propaganda networks, which are international and requires an international policing effort. This is a job for the Sri Lankan police and Interpol.

Providing reparations to victims requires the identification of the victims and identification of the perpetrators of their suffering. These perpetrators are those who financed and orchestrated the war, especially those who duplicitously supported both sides in the war.

Preventing future abuses, in this case preventing a return to conflict, is a complex matter that I have given thought to for many years. In 2002 I developed my first Peace Plan for Sri Lanka, a 40-proposal peace plan of which the first proposal was the promotion of tri-lingual education in Sinhala, Tamil and English from primary school onwards. This will break down the language barrier that is one of the roots of the conflict. The other proposals in my peace plan can be found by searching “Peace Plan for Sri Lanka” on YouTube:

https://www.youtube.com/watch?v=kAkLVReimbw

https://www.youtube.com/watch?v=7rrJA3xnoUk

 

Reform of the Sri Lankan military and police (the security system) is ongoing and there have been efforts to recruit and train Tamil-speaking and ethnic Tamil youths to serve in the armed forces and police. This is welcome. Cultural exchange is the best way to heal divisions.

Sri Lanka has long had laws against torture, but there have not been prosecutions of police and security forces for torture, as far as I know. This implies a culture of impunity, as has been alleged. It should be noted, however, that torture is engaged in by the Western armed forces as well, and to a greater degree. There is also the systematic torture of “mental patients” in the West, with the same abusive drugs and treatments being used both by the LTTE (they ran a ‘psychiatric hospital’) and the Sri Lankan government. The chemical restraints used in the West are also used in Sri Lanka and the Western diagnostic system, which constitutes labels of incurable disease, blamed on “chemical imbalances” is used around the world, including Sri Lanka, under the influence of the World Health Organization (WHO) and the British Royal College of Psychiatrists, which has trained successive generations of senior Sri Lankan psychiatrists.

The Sri Lankan military have shown exemplary leadership to the world in combating terrorism and making peace after the long war. Several military leaders gave up their military careers and entered the diplomatic service, actively promoting reconciliation and peace-building, like General Shavendra Silva. The military were involved in de-radicalising the LTTE cadres and rehabilitating them for civilian life as well as reconstruction projects. They were also involved in business ventures in tourism and agriculture in what had been LTTE-controlled areas and is still claimed by the separatists as “Tamil Eelam”. These have been criticised, with some justification. The separatists are angry that talk of separatism is against Sri Lankan law, and angry at the presence of military bases in “Tamil areas”. They are also angry, and have been for many decades, about what was unfortunately termed “colonization schemes” where poor Singhalese were given land and settled in the Eastern Province in areas (around Batticaloa and Trincomalee) that had mainly been inhabited by Tamils (and Muslims, who were mainly Tamil-speaking, though many were bilingual or trilingual). Granting land to the landless should be based on need, not religion or ethnicity. Everyone needs a home.

One of the root causes of the conflict was the division of Tamils and Singhalese in the education system. This worsened in the 1970s with laws that were intended to foster the national languages of Sinhala and Tamil at the expense of English. When I studied at Trinity College in the 1970s boys whose parents were ‘Sinhalese’ had to study in the “Sinhala medium”, boys with Tamil parents had to study in Tamil, while those boys with mixed parentage (Singhalese/Tamil), were Muslim (Moor or Malay) or Burger were allowed to study in English, Sinhala or Tamil. It was a disastrous policy. It also led to many English-speaking professionals leaving the country for their children’s education. This had been the intent; the measures were taken partly to counter the so-called “brain drain”, where Ceylonese professionals, fluent in English, were accepting better paid jobs with better conditions in the West, notably doctors and engineers.

These are some of my suggestions for preserving and enhancing peace:

  • Promote trilingualism and multilingualism
  • Wealth redistribution to poor
  • Land redistribution to landless and needy
  • Education – a computer for every classroom aiming towards a laptop/tablet for every student
  • Health promotion not drug promotion
  • Holistic approach to health
  • Program of reforestation
  • Promote nature awareness and love of nature
  • Restriction of weapons to military and police
  • Security cameras
  • Electricity grid access
  • National electricity grid
  • Focus on renewable/sustainable/green energy
  • Reconstruction – roads, railways, schools
  • Green architecture and housing
  • Develop hi-tech industry and training
  • Promote Colombo as beautiful metropolis
  • Promote ecotourism

 

Fostering individual and national reconciliation is a simple matter if people identify as Sri Lankan rather than according to their language, religion or ethnic group. Patriotism is to be encouraged along with Sri Lankan nationalism rather than tribalism. However, reconciliation between rival Singhalese, Tamil and Muslim views of Sri Lankan history is not easy – there are deep differences in the myths and legends that are venerated by Singhalese Buddhists, Singhalese Christians, Tamil Hindus, Tamil Christians and Sri Lankan Muslims. Every religion has its own myths and legends about human origins and history, often at odds with each other. There are deep differences between the beliefs of Catholics and Protestants and between members of the different Protestant churches.

Then there is the scientific view, which reports that the first human remains found in the island, those of Balangoda Man, date back to more than 30,000 years ago. The view of archaeology is also a scientific view; the archaeologist Paul Pieris surmised a century ago, that when Prince Vijaya arrived in the country, according to the Mahawamsa legend on the day of the Buddha’s death (543 BC) there were already several Hindu (Shaivite) temples on the island. More recent archaeological studies in the ancient city of Anuradhapura, long the capital of the Rajarata kingdom shows evidence of settlement several hundred years before the legendary arrival of Prince Vijaya. Reconciliation does not require one to accept the other’s perspective on all matters, however. Diversity in beliefs and views is to be encouraged, along with respect for different opinions; tribalism, racism and intolerance are not.

Finally, Sri Lanka needs transnational justice as well as transitional justice. The nations that attacked Sri Lanka’s sovereignty and supported the LTTE during the 30-year war should pay reparations to the people of Sri Lanka. These include India and the United Kingdom. Justice delayed is justice denied.