The Slow Wheels of Justice and 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 EPDP’s 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 regime’s May 2009 Human Rights Council success. Meanwhile, the UPFA’s 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-picture—that of noticeable change for the better in the balance of powers presently sustaining the deeper malaise—looks 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 government’s own claims, and lent tangible support to the government’s 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 Council’s 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 Council’s 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 ICC’s 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 regime’s ability to unleash a backlash.

Sri Lanka’s 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 Research’s data on Sinhala newspaper coverage over the last three years offers a fascinating parallel. Verite’s 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 group’s salient successes were its success in uniting the flailing and divided opposition behind a common candidate and delegitimizing Milosevic’s regime. Despite a strong undercurrent of Serbian nationalist sentiment against NATO bombardments and Western interventionism, Otpor’s success was to convince the Serbian people that Milosevic’s 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.

###