Ethnicity, Conflict Resolution, and the Discourse of Justice: Lessons from Bindunuwewa and Embilipitiya
[Forthcoming in Lines Magazine, www.lines-magazine.com]
by Alan Keenan
12 June 2006
Complex and often heated debates over the relation of human rights principles and conflict resolution efforts have shadowed the Sri Lankan peace process from its inception. As the Sri Lankan peace process has slowly devolved into a situation closely resembling war, a belated consensus has begun to emerge that human rights protections must be given a central role in any process designed to bring a sustainable peace to Sri Lanka. It has now become clear to many people that without directly challenging and eventually transforming the unaccountable and anti-democratic modes of power of the LTTE and Sri Lankan state, no lasting settlement of the war and its political causes can be found.
Underlying the debates over the role of human rights principles and protections in the peace process, however, has been a question that has received much less explicit attention: to what extent are Sri Lanka’s various political and social crises best analyzed through the framework of “ethnic conflict”? Might these crises – including the war between the LTTE and the Sri Lankan government – better be understood as aspects of a more general crisis of governance, rights, and justice? In other words, what is the relationship between, on the one hand, Sri Lanka’s ethnically-charged violence and injustice and, on the other hand, the range of other forms of political violence, injustice, denial of rights, and breakdown of democratic governance that have plagued Sri Lanka for decades? From these questions emerges a final issue to be considered in the pages that follow: what possibility exists for the emergence of a political movement that would struggle for justice and rights for all Sri Lankans, irrespective of ethnic identification, or class, or other distinctions? If so, what would have to happen for such a movement to come into being?
Beyond the Ethnic Pardadigm: The Lessons of Embilipitiya
A recent valuable intervention from Basil Fernando, the Executive Director of the Asian Human Rights Commission, Hong Kong, offers a particularly fruitful entry point into these issues. In a fascinating article in the Law and Society Trust Review of June 2005, Fernando presents a comparative analysis of the Bindunuwewa massacre and the Embilipitiya “disappearances” cases. While the death and destruction that took place at Bindunuwewa would seem to be a classic case of Sinhala oppression and of the racist Sri Lankan state denying Tamils their most basic rights with impunity, Fernando argues that the same underlying system of state-sponsored violence and impunity also underlay the events in Embilipitiya and the failure to achieve justice for its victims, all of whom were Sinhalese. Rather than relying on the racial and ideological paradigms that dominate attempts to understand and respond to political violence in Sri Lanka, Fernando argues for the necessity of developing a “discourse on justice” that could challenge the general absence of “the rule of law” that threatens the rights of all Sri Lankans.
Political violence in Sri Lanka, Fernando argues, is almost always framed in either ethnic or ideological terms: it is either the violence of Sinhalese and the Sinhala-dominated state against Tamils; the violence of the LTTE against Sinhalese; the violence of the JVP against representatives of the state and other political opponents; the violence of the government against the JVP (and those suspected of supporting them). For Fernando, the importance of the Embilipitiya case rests in how it challenges the usefulness of these dominant paradigms, given that it fits neither an ideological or ethnic frame: the forty-eight victims were all Sinhalese teenagers detained and presumed murdered by Sinhalese soldiers, for no political or ideological reasons whatsoever, only petty, personal animus: it was pure power at work, in all its private banality. To make sense of – and effectively challenge – the machinery of terror at work in Embilipitiya and throughout Sri Lanka, ethnic, ideological, or ethno-ideological argument simply aren’t adequate. One needs what Fernando calls a “discourse on justice.”
Fernando’s esssay offers a devastating and moving portrait of just how this machinery of state terror operated to crush all possibility of resistance in the late 1980’s – and how it remains largely unchanged today. At its foundation, Fernando argues, lies the complete absence of the rule of law. What the brutal events at Embilipitiya showed was how all but the most powerful in Sri Lanka were entirely at the mercy of the armed forces, who could simply take away and “disappear” one’s children without any legal grounds and without any fear of being held accountable. There was no possibility of preventive recourse to lawyers, courts, the media, or an outraged citizenry. The fear and terror was so great, and the institutional mechanisms of justice so decayed, that no effective remedies were available to the families. So, too, with after the fact justice. There were no internal military investigations or tribunals, and the civilian courts were only able after many years to convict a handful of middle and lower level figures, but without challenging the impunity with which the military and police systematically violate rights.
What happened at Bindunuwewa and in its aftermath really wasn’t so different, Fernando argues. The killings at Bindunuwewa certainly had a clear “racial” motivation, and the violence was more rapid and ferocious than in the case of Embilipitiya, but it was made possible by the same system of unaccountable state power. “At the core of this denial of justice to a greater or lesser degree both in the Bindunuwewa and Embilipitiya incidents,” he writes, “is the absence of the protection of the rule of law.” “The common factors” that underlie the denial of justice in both Embilipitiya and Bindunuwewa – and in other cases in which ethnic minorities suffer violence with the complicity of state forces – need to be recognized but are, unfortunately, obscured by the dominant “racial paradigms.”
Fernando recognizes that with respect to the violent conflict in the North and East, “the racial element … aggravates military repression.” “The lack of restraint and despotic terror [the Army] demonstrated at Embilipitiya would have been very much worse in the conflict zones” in the North and East, Fernando writes. Overemphasizing, or mishandling, the Tamil/Sinhala distinction, however, can be “misleading in understanding the general nature of repression and conflict within Sri Lanka.” In fact, the violent conflict in the North and East is itself comprehensible only when put in the context of the general lack of the rule of law throughout Sri Lanka. Can anyone, most especially those of another ethnic group, be expected to trust an Army (or, in the case of Bindunuwewa, a police force) that is without restraint and can unleash terror with no accountability or control? Such trust has a chance of being won only after the imposition of external legal controls on, and internal discipline within, the Army and Police. It was thanks to the absence of such controls that the “racial” animus in the B’wewa killings was allowed to get out of control.
From Politics to Justice
But wasn’t there “at least some justice” in the case of Embilipitiya? It is true, Fernando recognizes, that some criminal convictions were imposed and upheld on appeal – in clear contrast to Bindunuwewa, where all forty-one accused were eventually acquitted. The Embilipitiya convictions, however, hardly amount to real justice. The punishments were imposed without reference to any basic or coherent idea of justice: the system that made these crimes possible remains intact, no higher level officials were punished, and the parents of the children disappeared still don’t know where their children are buried, who killed them, or even if they are truly dead.
Fernando accepts that in the case of Embilipitiya the murders did ultimately have political effects. They were able to be used for purposes of mobilizing opposition to, and eventually defeating, the ruling UNP. In the case of Bindunuwewa, on the other hand, the murders had no discernible political effect at all. And “the fact that young Tamil men were slaughtered without any political implications,” Fernando accepts, “demonstrates some of the fundamental problems of the political process in the country.”
But to go beyond the weak or merely symbolic justice that can be won through political pressure, one needs to establish “institutions that carry on irrespective of political pressures. Justice institutions acting basically independently from the political establishment is an essential part of a sane society.” Thus, Fernando writes, “the main point of this article is that unless there is a system of justice that functions at least at basic levels of credibility, no political process can be transformed to deal with the basic issues of human rights abuses – regardless of whether the affected group in Sinhala, Tamil, Muslim or other.”
But for this to become possible, you first need what Fernando calls “a discourse of justice.” Indeed, “in the absence of a separate discourse on justice, there is little medium through which the political discourse can be enlightened beyond trashy political rhetoric and propaganda literature. Stressing on the importance of a dialogue on justice is meant to bring out the totality of the crisis affecting everyone and places the specific problems of class and ethnicity within the larger problem of the absence of justice” (emphasis added).
For all these reasons, then, the discourse on peace and conflict resolution in Sri Lanka needs to broaden its focus from ethnicity and the conflict in the North and East and address the fundamental collapse of the justice system and rule of law throughout the country. In Fernando’s words, it must become “far more comprehensive” and “address the fundamental problems regarding the nature of the State and its institutions. To treat the Sri Lankan State as an entity that has basic checks and balances to deal with its problems is mere fallacy…. [T]he review of the entire legal framework in the country should take centre place in any discourse on peace and constitutional reform in the country.”
Doing Justice to Ethnicity
In arguing for the centrality of issues of justice and rights to Sri Lanka’s multiple crises of the state, including the crises of the state routinely referred to as the “ethnic conflict” and the war in the northeast, Basil Fernando has performed an important public service. Of particular value is his attempt to raise awareness of the commonalities of this crisis across ethnic and ideological differences and to push us to recognize the need for a pan-ethnic movement for justice that is rooted in Sri Lankans’ shared vulnerability to abusive and unaccountable power. In a highly polarized and destructively politicized discursive environment like Sri Lanka’s, these are crucial positions to advance, and nothing argued in the paragraphs that follow in any way lessens the value of Fernando’s intervention.
When we begin to think through the outlines of a discourse of justice that could help mobilize this sort of cross-ethnic constituency, however, the limitations of Fernando’s universalist rule of law approach become apparent. Why, for instance, has it proven so difficult to popularize the kind of “discourse of justice” that BF rightly calls for – one where it isn’t just interest and coercion that determines how the “justice” system treats people but instead some basic and common standards of right and law? Is the failure of this discourse to date merely, as Fernando at one point suggests, the effect of incorrect “racial paradigms” that must be “disposed of” in order for the “common factors” that underlie violence and abuse of all Sri Lankans to become apparent?
Surely a major impediment to its success is not only the theory, but also the experience – which is filtered through and then goes on to legitimate the theory – of ethnic identifications and ethnicized differentials in justice. Thus any discourse of justice would have to take into account the fact that no Sinhalese is ever targeted by the Army or the Police simply for “the crime” of being Sinhalese, whereas Tamils can be harassed and killed just for being Tamil (or for the way that being marked as Tamil also marks one as a possible Tiger). So, too, with the many differences in how Sinhalese speakers and Tamil speakers receive – or don’t receive – the benefits of the state (as opposed to its sharp end represented by the Police, Army, and courts).
Given such differences in the experience of the Sri Lankan state, it is not enough to point out the unquestionable and absolutely fundamental commonalities in the system of non-justice and in-security faced by all Sri Lankans – Tamil, Muslim, Sinhala, Burgher, etc. Nor is it enough to criticize the inadequacies of racial or ethnic paradigms that obscure these commonalities. Surely one of the central aims of any discourse of justice in Sri Lanka should be to make it easier for Sinhalese to understand and acknowledge the specific nature of the injustices that Tamils (and in different ways many Muslims) suffer. For a discourse on justice to make any headway in today’s Sri Lanka, the power of ethnic identifications on all sides of Sri Lankan society need first to be acknowledged and worked through, both in general and especially among human rights activists and other potential leaders of a popular movement for justice and the rule of law. Indeed, in the present context, the language of “justice” or “the rule of law” have very little popwer in and of themselves. They will be gain transformative power only to the extent that they are articulated in and through the experience and discourse of ethnicity (and, in perhaps even more complex ways, through issues of class).
The Complex Specificity of Bindunuwewa
In this context, what is particularly compelling about the Bindunuwewa case is how it demands that one recognize a specifically ethnic component even as it points beyond the limitations of a merely ethnic reading of the crime and of the legal system’s utter failure to render justice. As Fernando himself recognizes, one difference between the Bindunuwewa and Embilipitiya cases is that in Embilipitiya the parents were eventually able to bring some attention to their case, get politicians involved on their side, get the case taken up in court, and gain at least some convictions. While Fernando is right to argue that the larger system of impunity and unaccountable power remained intact and that the justice rendered was “pitiful,” it is nonetheless true that some degree of public recognition of the plight of the victims and the justice of their cause was achieved. In the case of Bindunuwewa, nothing of this sort took place. There was no sustained or effective activism, no serious involvement of politicians in defense of the victims and survivors, and the legal case eventually resulted in no one being held accountable, not even the little fish. What’s more, when the Supreme Court acquitted the five accused who had been convicted by the High Court, it overturned not only those convictions but also the initial, if symbolic, value of the High Court’s recognition that a grave wrong had in fact been done by the state.
The difference between these two outcomes obviously has something to do with both the ethnicity and the class status of the victims in the two cases. (With very few exceptions, the forty-one young men and boys in the Bindunuwewa camp were from poor families in isolated areas of the north and east.) So even though the basic machinery of state violence is the same in both cases, and even though nothing close to real justice was achieved even in the Embilipitiya case, the ability of victims, survivors, and their supporters to respond and gain some recognition of their plight differed according to class and ethnicity. And whereas the vast majority of the Sinhalese public knows, in part thanks to the publicity around the Embilipitiya case, that the state is brutal, unaccountable, and not to be trusted, they remain largely ignorant about the specificity and particular ferocity of the abuses suffered by Tamils at the hands of the state.
Bindunuwewa is especially worthy of reflection and analysis, however, not only for how it reveals the specificity of injustice and state repression of Tamils, but, in an even more important sense, for how it complicates the apparent need to choose between Fernando’s two competing stories: that of the racist Sinhala state and that of the abusive Sri Lankan state that threatens all citizens’ rights. The Bindunuwewa case helps us understand why it is so hard to build a cross-ethnic movement for justice and human rights and rule of law in large part because it reveals the centrality for human rights activism of a question that never appears in Fernando’s analysis: how to deal with the Tamil Tigers and their particular brand of counter-state violence and repression.
This becomes clear when one begins to consider who exactly the detainees in Bindunuwewa were. When it was attacked and raised to the ground in October 2000, the government’s “Rehabilitation Centre” at Bindunuwewa housed a variety of Tamil men and boys: some had surrendered to the Police or Army from the LTTE; others were members of non-LTTE militant groups (such as PLOTE) who had gone to the Police or Army for “protection”; a handful were child soldiers who had been captured by the Army during a battle in the north; and a handful of young men had picked up on “suspicion” of involvement with the Tigers. As one foreign human rights activist once remarked to me, the detainees were very inconvenient for everyone. Many of them were, in their own ways, “dissenting” Tamils. The LTTE didn’t like them, considering many of them to be traitors or enemies. This made it difficult for Tamil human rights groups to speak up too loudly in their defense, for fear of putting themselves at risk from both the government and the Tigers. In some ways, then, it would have been better for a predominantly Sinhalese human rights group to take up the case. But this didn’t happen, for a range of possible reasons: perhaps because of lack of contacts in the appropriate areas of the North/East; perhaps because of lack of political commitment; or perhaps because of the generally accepted division of labor between Tamil and Sinhalese groups, each of which focuses on their “own” communities.
The reluctance of Sinhalese activists to take up the case was probably also due to their discomfort with the complexity of the inmates’ non-classic victim status. They were both “terrorists” and “traitors” at the same time. To the extent they were seen as “LTTE terrorists,” there would have been some risk for a Sinhala group to take up their cause, especially given the strength of the pro-war sentiment in late 2000. And to the extent that the victims were seen as “traitors” or dissenting Tamils, who were part of a “rehabilitation” system that the government shamelessly used for its anti-Tiger propaganda, Sinhalese activists might have felt their involvement in the case would complicate their commitment to peace through a negotiated deal with the Tigers. Probably for all of these reasons, the Bindunuwewa case was left entirely to a small, almost entirely Tamil-staffed human rights group, which unfortunately lacked the financial resources, investigative skills, and political connections necessary to generate a broader campaign for justice.
Bringing the Tigers Back In
Bindunuwewa thus illustrates both the necessity and the extreme difficulty of articulating a non-ethnic human rights critique of the existing modes of power in Sri Lanka that would be capable of catalyzing a cross-ethnic movement for change.
More specifically, what the experience of Bindunuwewa is especially useful for teaching us is that for this kind of movement to be possible and effective it must elaborate a moral and political, and thus non-ethnicized, critique of the LTTE. Unfortunately, the violence of the LTTE is nowhere addressed in Fernando’s analysis. Yet just as Fernando is correct to point out the limits of an exclusively ethnic critique of the Sri Lanka’s current crises, so, too, a “discourse on justice” can’t simply focus on the state, even if the state is the original and perhaps still more fundamental source of injustice and violence (and historically the major catalyst for the emergence of the Tigers themselves). (Ironically enough, Fernando’s preference to focus only on state abuses is shared by the racialist discourse of the Tigers and certain other Tamil nationalists.)
Articulating a clear and forceful critique of the Tigers’ anti-democratic and illiberal power is needed in part because at least some powerful sections of Sinhalese society put up with a repressive state that endangers their own rights because of the threat and fear of the LTTE. Distrust and fear of Tigers – which is often hard to disentangle from fear and distrust of Tamils and Tamil nationalism – feeds a powerful pro-state discourse among many Sinhalese that justifies the system of impunity, even as this comes back to haunt and hurt Sinhalese themselves. And this pro-state discourse isn’t limited to upper class Sinhalese, who can be argued to benefit in some ways from state repression – it is central to the JVP’s putatively leftist program as well. Democracy and human rights advocates can challenge this discourse only by accompanying their critique of the state with their own rights-based critique of the Tigers.
There are, in short, complex and overlapping dialectical relationships at work between state terror, counter-state terror of the LTTE, and the competing nationalisms that justify them and that lower resistance even to terror and abuse that is directed at one’s “own” people. Thus just as many Sinhalese don’t see – or don’t care – that they too suffer from the denial on rights ostensibly required by the fight against Tiger “terrorism,” so, too, many Tamils implicitly sanction LTTE repression by accepting that dissenting Tamils are traitors who undermine the LTTE’s power to force concessions from the Sri Lankan state. One of the major aims of the kind of cross-ethnic discourse of justice that Fernando advocates must be to challenge and untangle these interlocking justifications for state and counter-state terror. Thus just as getting Sinhalese to recognize the specificity of injustice suffered by Tamils at the hands of the state should make it easier for Tamils to criticize the Tigers, so recognizing the specific nature of the Tigers’ counter-state threat to rights and the rule of law should make it easier for Sinhalese to challenge the practices of their “own” state and its “security” forces, and perhaps ultimately to recognize the just claims of Tamils.
Indeed, in a deeper sense, a Sri Lankan discourse of justice will be viable only to the extent that it recognizes the mutually reinforcing dialectic that exists between, on the one hand, ethnicity – in the form of discrimination and mutually incompatible identifications – and the breakdown in the rule of law and growth of anti-democratic governance, on the other hand. Historically speaking – though this goes unmentioned by Fernando – the collapse of the rule of law in Sri Lanka was intimately bound up with discriminatory state policies and with increasingly fierce state repression of Tamils, including state-sanctioned violence against Tamils, running from 1958, through 1977, 1979, and 1981 to July 1983. So, too, today, the strength of ethno-national identifications and animus on both sides, especially in light of the LTTE’s own forms of violence and terror, help maintain the status quo of violence by justifying the lack of protections for even the most basic of human rights.
The importance of Fernando’s intervention lies in his clear and forceful articulation of the other side of the vicious circle – the ways in which bad governance and the absence of the rule of law operate as independent variables that undermine the rights of all Sri Lankans even as they fuel continued ethnic violence and mistrust. His call for conflict resolution efforts to focus on these fundamental liberal and democratic deficits is of particular importance today, as the failure of the internationally-backed peace process demonstrates all too clearly. Fernando’s desired discourse of justice, however, is likely to resonate with, and change the minds of, Sri Lankans of all ethnicities only if it can also do justice to the complex role that ethnic identifications, discrimination, and violence have played and continue to play in the steady collapse of the rule of law.
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NOTES:
1. For a recent and valuable argument to this effect, see Cenan Pirani and Ahilan Kadirgamar, “Internationalisation of Sri Lanka’s Peace Process and Governance A Review of Strategic Conflict Assessments,” Econcomic and Political Weekly, 6 May 2006, 1789-1795.
2. Basil Fernando, “The Tale of Two Massacres: The Relevance of Embilipitiya and Bindunuwewa to Conflict Resolution in Sri Lanka” Law and Society Trust Review,Vol. 15, Issue 212, June 2005, 43-50.
3. What is missing from this list is the violence of the Tigers against Tamils who dissent against, or in some way seem to threaten, their rule. While this violence has some parallels to violence between the JVP and the Sri Lankan state, it also has a distinct character of its own, which is neither “ethnic” nor “ideological” in quite the way that Fernando uses those terms.
4. This is a point that I make in my analysis of the Supreme Court’s acquittals, “Making Sense of Bindunuwewa: From Massacre to Acquittal,” Law and Society Trust Review, Vol. 15, Issue 212, June 2005, 19-42.
5. Many of the points made in this and the following paragraph were first suggested to me by Cornelis Verhagen. I am indebted to him for sharing with me his thoughts about, and experiences with, human rights struggles in Sri Lanka, but of course it is I who remain solely responsible for the specific argument made here.
6. The massacre itself took place just weeks after the PA government had won parliamentary elections on the strength of a virulently anti-Tiger campaign. My thanks go to Tilak Jayaratne for his repeated reminders about the importance of this context to understanding the massacre and the various political responses to it.
7. In point of fact, a rigorous investigation of the government’s rehabilitation system should have increased activists’ criticisms of the system that led to the inmates’ deaths, since it would have made clear that they suffered from abuses of power by both the GoSL and the LTTE.
by Alan Keenan
12 June 2006
Complex and often heated debates over the relation of human rights principles and conflict resolution efforts have shadowed the Sri Lankan peace process from its inception. As the Sri Lankan peace process has slowly devolved into a situation closely resembling war, a belated consensus has begun to emerge that human rights protections must be given a central role in any process designed to bring a sustainable peace to Sri Lanka. It has now become clear to many people that without directly challenging and eventually transforming the unaccountable and anti-democratic modes of power of the LTTE and Sri Lankan state, no lasting settlement of the war and its political causes can be found.
Underlying the debates over the role of human rights principles and protections in the peace process, however, has been a question that has received much less explicit attention: to what extent are Sri Lanka’s various political and social crises best analyzed through the framework of “ethnic conflict”? Might these crises – including the war between the LTTE and the Sri Lankan government – better be understood as aspects of a more general crisis of governance, rights, and justice? In other words, what is the relationship between, on the one hand, Sri Lanka’s ethnically-charged violence and injustice and, on the other hand, the range of other forms of political violence, injustice, denial of rights, and breakdown of democratic governance that have plagued Sri Lanka for decades? From these questions emerges a final issue to be considered in the pages that follow: what possibility exists for the emergence of a political movement that would struggle for justice and rights for all Sri Lankans, irrespective of ethnic identification, or class, or other distinctions? If so, what would have to happen for such a movement to come into being?
Beyond the Ethnic Pardadigm: The Lessons of Embilipitiya
A recent valuable intervention from Basil Fernando, the Executive Director of the Asian Human Rights Commission, Hong Kong, offers a particularly fruitful entry point into these issues. In a fascinating article in the Law and Society Trust Review of June 2005, Fernando presents a comparative analysis of the Bindunuwewa massacre and the Embilipitiya “disappearances” cases. While the death and destruction that took place at Bindunuwewa would seem to be a classic case of Sinhala oppression and of the racist Sri Lankan state denying Tamils their most basic rights with impunity, Fernando argues that the same underlying system of state-sponsored violence and impunity also underlay the events in Embilipitiya and the failure to achieve justice for its victims, all of whom were Sinhalese. Rather than relying on the racial and ideological paradigms that dominate attempts to understand and respond to political violence in Sri Lanka, Fernando argues for the necessity of developing a “discourse on justice” that could challenge the general absence of “the rule of law” that threatens the rights of all Sri Lankans.
Political violence in Sri Lanka, Fernando argues, is almost always framed in either ethnic or ideological terms: it is either the violence of Sinhalese and the Sinhala-dominated state against Tamils; the violence of the LTTE against Sinhalese; the violence of the JVP against representatives of the state and other political opponents; the violence of the government against the JVP (and those suspected of supporting them). For Fernando, the importance of the Embilipitiya case rests in how it challenges the usefulness of these dominant paradigms, given that it fits neither an ideological or ethnic frame: the forty-eight victims were all Sinhalese teenagers detained and presumed murdered by Sinhalese soldiers, for no political or ideological reasons whatsoever, only petty, personal animus: it was pure power at work, in all its private banality. To make sense of – and effectively challenge – the machinery of terror at work in Embilipitiya and throughout Sri Lanka, ethnic, ideological, or ethno-ideological argument simply aren’t adequate. One needs what Fernando calls a “discourse on justice.”
Fernando’s esssay offers a devastating and moving portrait of just how this machinery of state terror operated to crush all possibility of resistance in the late 1980’s – and how it remains largely unchanged today. At its foundation, Fernando argues, lies the complete absence of the rule of law. What the brutal events at Embilipitiya showed was how all but the most powerful in Sri Lanka were entirely at the mercy of the armed forces, who could simply take away and “disappear” one’s children without any legal grounds and without any fear of being held accountable. There was no possibility of preventive recourse to lawyers, courts, the media, or an outraged citizenry. The fear and terror was so great, and the institutional mechanisms of justice so decayed, that no effective remedies were available to the families. So, too, with after the fact justice. There were no internal military investigations or tribunals, and the civilian courts were only able after many years to convict a handful of middle and lower level figures, but without challenging the impunity with which the military and police systematically violate rights.
What happened at Bindunuwewa and in its aftermath really wasn’t so different, Fernando argues. The killings at Bindunuwewa certainly had a clear “racial” motivation, and the violence was more rapid and ferocious than in the case of Embilipitiya, but it was made possible by the same system of unaccountable state power. “At the core of this denial of justice to a greater or lesser degree both in the Bindunuwewa and Embilipitiya incidents,” he writes, “is the absence of the protection of the rule of law.” “The common factors” that underlie the denial of justice in both Embilipitiya and Bindunuwewa – and in other cases in which ethnic minorities suffer violence with the complicity of state forces – need to be recognized but are, unfortunately, obscured by the dominant “racial paradigms.”
Fernando recognizes that with respect to the violent conflict in the North and East, “the racial element … aggravates military repression.” “The lack of restraint and despotic terror [the Army] demonstrated at Embilipitiya would have been very much worse in the conflict zones” in the North and East, Fernando writes. Overemphasizing, or mishandling, the Tamil/Sinhala distinction, however, can be “misleading in understanding the general nature of repression and conflict within Sri Lanka.” In fact, the violent conflict in the North and East is itself comprehensible only when put in the context of the general lack of the rule of law throughout Sri Lanka. Can anyone, most especially those of another ethnic group, be expected to trust an Army (or, in the case of Bindunuwewa, a police force) that is without restraint and can unleash terror with no accountability or control? Such trust has a chance of being won only after the imposition of external legal controls on, and internal discipline within, the Army and Police. It was thanks to the absence of such controls that the “racial” animus in the B’wewa killings was allowed to get out of control.
From Politics to Justice
But wasn’t there “at least some justice” in the case of Embilipitiya? It is true, Fernando recognizes, that some criminal convictions were imposed and upheld on appeal – in clear contrast to Bindunuwewa, where all forty-one accused were eventually acquitted. The Embilipitiya convictions, however, hardly amount to real justice. The punishments were imposed without reference to any basic or coherent idea of justice: the system that made these crimes possible remains intact, no higher level officials were punished, and the parents of the children disappeared still don’t know where their children are buried, who killed them, or even if they are truly dead.
Fernando accepts that in the case of Embilipitiya the murders did ultimately have political effects. They were able to be used for purposes of mobilizing opposition to, and eventually defeating, the ruling UNP. In the case of Bindunuwewa, on the other hand, the murders had no discernible political effect at all. And “the fact that young Tamil men were slaughtered without any political implications,” Fernando accepts, “demonstrates some of the fundamental problems of the political process in the country.”
But to go beyond the weak or merely symbolic justice that can be won through political pressure, one needs to establish “institutions that carry on irrespective of political pressures. Justice institutions acting basically independently from the political establishment is an essential part of a sane society.” Thus, Fernando writes, “the main point of this article is that unless there is a system of justice that functions at least at basic levels of credibility, no political process can be transformed to deal with the basic issues of human rights abuses – regardless of whether the affected group in Sinhala, Tamil, Muslim or other.”
But for this to become possible, you first need what Fernando calls “a discourse of justice.” Indeed, “in the absence of a separate discourse on justice, there is little medium through which the political discourse can be enlightened beyond trashy political rhetoric and propaganda literature. Stressing on the importance of a dialogue on justice is meant to bring out the totality of the crisis affecting everyone and places the specific problems of class and ethnicity within the larger problem of the absence of justice” (emphasis added).
For all these reasons, then, the discourse on peace and conflict resolution in Sri Lanka needs to broaden its focus from ethnicity and the conflict in the North and East and address the fundamental collapse of the justice system and rule of law throughout the country. In Fernando’s words, it must become “far more comprehensive” and “address the fundamental problems regarding the nature of the State and its institutions. To treat the Sri Lankan State as an entity that has basic checks and balances to deal with its problems is mere fallacy…. [T]he review of the entire legal framework in the country should take centre place in any discourse on peace and constitutional reform in the country.”
Doing Justice to Ethnicity
In arguing for the centrality of issues of justice and rights to Sri Lanka’s multiple crises of the state, including the crises of the state routinely referred to as the “ethnic conflict” and the war in the northeast, Basil Fernando has performed an important public service. Of particular value is his attempt to raise awareness of the commonalities of this crisis across ethnic and ideological differences and to push us to recognize the need for a pan-ethnic movement for justice that is rooted in Sri Lankans’ shared vulnerability to abusive and unaccountable power. In a highly polarized and destructively politicized discursive environment like Sri Lanka’s, these are crucial positions to advance, and nothing argued in the paragraphs that follow in any way lessens the value of Fernando’s intervention.
When we begin to think through the outlines of a discourse of justice that could help mobilize this sort of cross-ethnic constituency, however, the limitations of Fernando’s universalist rule of law approach become apparent. Why, for instance, has it proven so difficult to popularize the kind of “discourse of justice” that BF rightly calls for – one where it isn’t just interest and coercion that determines how the “justice” system treats people but instead some basic and common standards of right and law? Is the failure of this discourse to date merely, as Fernando at one point suggests, the effect of incorrect “racial paradigms” that must be “disposed of” in order for the “common factors” that underlie violence and abuse of all Sri Lankans to become apparent?
Surely a major impediment to its success is not only the theory, but also the experience – which is filtered through and then goes on to legitimate the theory – of ethnic identifications and ethnicized differentials in justice. Thus any discourse of justice would have to take into account the fact that no Sinhalese is ever targeted by the Army or the Police simply for “the crime” of being Sinhalese, whereas Tamils can be harassed and killed just for being Tamil (or for the way that being marked as Tamil also marks one as a possible Tiger). So, too, with the many differences in how Sinhalese speakers and Tamil speakers receive – or don’t receive – the benefits of the state (as opposed to its sharp end represented by the Police, Army, and courts).
Given such differences in the experience of the Sri Lankan state, it is not enough to point out the unquestionable and absolutely fundamental commonalities in the system of non-justice and in-security faced by all Sri Lankans – Tamil, Muslim, Sinhala, Burgher, etc. Nor is it enough to criticize the inadequacies of racial or ethnic paradigms that obscure these commonalities. Surely one of the central aims of any discourse of justice in Sri Lanka should be to make it easier for Sinhalese to understand and acknowledge the specific nature of the injustices that Tamils (and in different ways many Muslims) suffer. For a discourse on justice to make any headway in today’s Sri Lanka, the power of ethnic identifications on all sides of Sri Lankan society need first to be acknowledged and worked through, both in general and especially among human rights activists and other potential leaders of a popular movement for justice and the rule of law. Indeed, in the present context, the language of “justice” or “the rule of law” have very little popwer in and of themselves. They will be gain transformative power only to the extent that they are articulated in and through the experience and discourse of ethnicity (and, in perhaps even more complex ways, through issues of class).
The Complex Specificity of Bindunuwewa
In this context, what is particularly compelling about the Bindunuwewa case is how it demands that one recognize a specifically ethnic component even as it points beyond the limitations of a merely ethnic reading of the crime and of the legal system’s utter failure to render justice. As Fernando himself recognizes, one difference between the Bindunuwewa and Embilipitiya cases is that in Embilipitiya the parents were eventually able to bring some attention to their case, get politicians involved on their side, get the case taken up in court, and gain at least some convictions. While Fernando is right to argue that the larger system of impunity and unaccountable power remained intact and that the justice rendered was “pitiful,” it is nonetheless true that some degree of public recognition of the plight of the victims and the justice of their cause was achieved. In the case of Bindunuwewa, nothing of this sort took place. There was no sustained or effective activism, no serious involvement of politicians in defense of the victims and survivors, and the legal case eventually resulted in no one being held accountable, not even the little fish. What’s more, when the Supreme Court acquitted the five accused who had been convicted by the High Court, it overturned not only those convictions but also the initial, if symbolic, value of the High Court’s recognition that a grave wrong had in fact been done by the state.
The difference between these two outcomes obviously has something to do with both the ethnicity and the class status of the victims in the two cases. (With very few exceptions, the forty-one young men and boys in the Bindunuwewa camp were from poor families in isolated areas of the north and east.) So even though the basic machinery of state violence is the same in both cases, and even though nothing close to real justice was achieved even in the Embilipitiya case, the ability of victims, survivors, and their supporters to respond and gain some recognition of their plight differed according to class and ethnicity. And whereas the vast majority of the Sinhalese public knows, in part thanks to the publicity around the Embilipitiya case, that the state is brutal, unaccountable, and not to be trusted, they remain largely ignorant about the specificity and particular ferocity of the abuses suffered by Tamils at the hands of the state.
Bindunuwewa is especially worthy of reflection and analysis, however, not only for how it reveals the specificity of injustice and state repression of Tamils, but, in an even more important sense, for how it complicates the apparent need to choose between Fernando’s two competing stories: that of the racist Sinhala state and that of the abusive Sri Lankan state that threatens all citizens’ rights. The Bindunuwewa case helps us understand why it is so hard to build a cross-ethnic movement for justice and human rights and rule of law in large part because it reveals the centrality for human rights activism of a question that never appears in Fernando’s analysis: how to deal with the Tamil Tigers and their particular brand of counter-state violence and repression.
This becomes clear when one begins to consider who exactly the detainees in Bindunuwewa were. When it was attacked and raised to the ground in October 2000, the government’s “Rehabilitation Centre” at Bindunuwewa housed a variety of Tamil men and boys: some had surrendered to the Police or Army from the LTTE; others were members of non-LTTE militant groups (such as PLOTE) who had gone to the Police or Army for “protection”; a handful were child soldiers who had been captured by the Army during a battle in the north; and a handful of young men had picked up on “suspicion” of involvement with the Tigers. As one foreign human rights activist once remarked to me, the detainees were very inconvenient for everyone. Many of them were, in their own ways, “dissenting” Tamils. The LTTE didn’t like them, considering many of them to be traitors or enemies. This made it difficult for Tamil human rights groups to speak up too loudly in their defense, for fear of putting themselves at risk from both the government and the Tigers. In some ways, then, it would have been better for a predominantly Sinhalese human rights group to take up the case. But this didn’t happen, for a range of possible reasons: perhaps because of lack of contacts in the appropriate areas of the North/East; perhaps because of lack of political commitment; or perhaps because of the generally accepted division of labor between Tamil and Sinhalese groups, each of which focuses on their “own” communities.
The reluctance of Sinhalese activists to take up the case was probably also due to their discomfort with the complexity of the inmates’ non-classic victim status. They were both “terrorists” and “traitors” at the same time. To the extent they were seen as “LTTE terrorists,” there would have been some risk for a Sinhala group to take up their cause, especially given the strength of the pro-war sentiment in late 2000. And to the extent that the victims were seen as “traitors” or dissenting Tamils, who were part of a “rehabilitation” system that the government shamelessly used for its anti-Tiger propaganda, Sinhalese activists might have felt their involvement in the case would complicate their commitment to peace through a negotiated deal with the Tigers. Probably for all of these reasons, the Bindunuwewa case was left entirely to a small, almost entirely Tamil-staffed human rights group, which unfortunately lacked the financial resources, investigative skills, and political connections necessary to generate a broader campaign for justice.
Bringing the Tigers Back In
Bindunuwewa thus illustrates both the necessity and the extreme difficulty of articulating a non-ethnic human rights critique of the existing modes of power in Sri Lanka that would be capable of catalyzing a cross-ethnic movement for change.
More specifically, what the experience of Bindunuwewa is especially useful for teaching us is that for this kind of movement to be possible and effective it must elaborate a moral and political, and thus non-ethnicized, critique of the LTTE. Unfortunately, the violence of the LTTE is nowhere addressed in Fernando’s analysis. Yet just as Fernando is correct to point out the limits of an exclusively ethnic critique of the Sri Lanka’s current crises, so, too, a “discourse on justice” can’t simply focus on the state, even if the state is the original and perhaps still more fundamental source of injustice and violence (and historically the major catalyst for the emergence of the Tigers themselves). (Ironically enough, Fernando’s preference to focus only on state abuses is shared by the racialist discourse of the Tigers and certain other Tamil nationalists.)
Articulating a clear and forceful critique of the Tigers’ anti-democratic and illiberal power is needed in part because at least some powerful sections of Sinhalese society put up with a repressive state that endangers their own rights because of the threat and fear of the LTTE. Distrust and fear of Tigers – which is often hard to disentangle from fear and distrust of Tamils and Tamil nationalism – feeds a powerful pro-state discourse among many Sinhalese that justifies the system of impunity, even as this comes back to haunt and hurt Sinhalese themselves. And this pro-state discourse isn’t limited to upper class Sinhalese, who can be argued to benefit in some ways from state repression – it is central to the JVP’s putatively leftist program as well. Democracy and human rights advocates can challenge this discourse only by accompanying their critique of the state with their own rights-based critique of the Tigers.
There are, in short, complex and overlapping dialectical relationships at work between state terror, counter-state terror of the LTTE, and the competing nationalisms that justify them and that lower resistance even to terror and abuse that is directed at one’s “own” people. Thus just as many Sinhalese don’t see – or don’t care – that they too suffer from the denial on rights ostensibly required by the fight against Tiger “terrorism,” so, too, many Tamils implicitly sanction LTTE repression by accepting that dissenting Tamils are traitors who undermine the LTTE’s power to force concessions from the Sri Lankan state. One of the major aims of the kind of cross-ethnic discourse of justice that Fernando advocates must be to challenge and untangle these interlocking justifications for state and counter-state terror. Thus just as getting Sinhalese to recognize the specificity of injustice suffered by Tamils at the hands of the state should make it easier for Tamils to criticize the Tigers, so recognizing the specific nature of the Tigers’ counter-state threat to rights and the rule of law should make it easier for Sinhalese to challenge the practices of their “own” state and its “security” forces, and perhaps ultimately to recognize the just claims of Tamils.
Indeed, in a deeper sense, a Sri Lankan discourse of justice will be viable only to the extent that it recognizes the mutually reinforcing dialectic that exists between, on the one hand, ethnicity – in the form of discrimination and mutually incompatible identifications – and the breakdown in the rule of law and growth of anti-democratic governance, on the other hand. Historically speaking – though this goes unmentioned by Fernando – the collapse of the rule of law in Sri Lanka was intimately bound up with discriminatory state policies and with increasingly fierce state repression of Tamils, including state-sanctioned violence against Tamils, running from 1958, through 1977, 1979, and 1981 to July 1983. So, too, today, the strength of ethno-national identifications and animus on both sides, especially in light of the LTTE’s own forms of violence and terror, help maintain the status quo of violence by justifying the lack of protections for even the most basic of human rights.
The importance of Fernando’s intervention lies in his clear and forceful articulation of the other side of the vicious circle – the ways in which bad governance and the absence of the rule of law operate as independent variables that undermine the rights of all Sri Lankans even as they fuel continued ethnic violence and mistrust. His call for conflict resolution efforts to focus on these fundamental liberal and democratic deficits is of particular importance today, as the failure of the internationally-backed peace process demonstrates all too clearly. Fernando’s desired discourse of justice, however, is likely to resonate with, and change the minds of, Sri Lankans of all ethnicities only if it can also do justice to the complex role that ethnic identifications, discrimination, and violence have played and continue to play in the steady collapse of the rule of law.
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NOTES:
1. For a recent and valuable argument to this effect, see Cenan Pirani and Ahilan Kadirgamar, “Internationalisation of Sri Lanka’s Peace Process and Governance A Review of Strategic Conflict Assessments,” Econcomic and Political Weekly, 6 May 2006, 1789-1795.
2. Basil Fernando, “The Tale of Two Massacres: The Relevance of Embilipitiya and Bindunuwewa to Conflict Resolution in Sri Lanka” Law and Society Trust Review,Vol. 15, Issue 212, June 2005, 43-50.
3. What is missing from this list is the violence of the Tigers against Tamils who dissent against, or in some way seem to threaten, their rule. While this violence has some parallels to violence between the JVP and the Sri Lankan state, it also has a distinct character of its own, which is neither “ethnic” nor “ideological” in quite the way that Fernando uses those terms.
4. This is a point that I make in my analysis of the Supreme Court’s acquittals, “Making Sense of Bindunuwewa: From Massacre to Acquittal,” Law and Society Trust Review, Vol. 15, Issue 212, June 2005, 19-42.
5. Many of the points made in this and the following paragraph were first suggested to me by Cornelis Verhagen. I am indebted to him for sharing with me his thoughts about, and experiences with, human rights struggles in Sri Lanka, but of course it is I who remain solely responsible for the specific argument made here.
6. The massacre itself took place just weeks after the PA government had won parliamentary elections on the strength of a virulently anti-Tiger campaign. My thanks go to Tilak Jayaratne for his repeated reminders about the importance of this context to understanding the massacre and the various political responses to it.
7. In point of fact, a rigorous investigation of the government’s rehabilitation system should have increased activists’ criticisms of the system that led to the inmates’ deaths, since it would have made clear that they suffered from abuses of power by both the GoSL and the LTTE.
posted by Alan Keenan at 11:43 AM
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