Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre
Hardly any one looks into the massacres, killings and other violence in Sri Lanka during recent decades from the point of view of justice and its absence. Each such event is reduced to mere confirmation of a racial or ideological perspective of one kind or another: Tamil killed by Sinhala, Sinhala killed by Tamil, communist JVP (Janata Vimukti Peramuna) killed by military, politician killed by JVP, and so on. The actual events are buried under self-serving ideological positions. From these, there is no possibility to gain insight into what actually happened, nor provide some redress for past victims and prevent similar incidents in the future.
What happened at Embilipitiya, and why
This situation may explain in part why there is nowadays hardly any reference to the Embilipitiya schoolchildren’s massacre. At Embilipitiya, 48 schoolchildren were abducted and murdered between 2 August 1989 and 10 January 1990. The murderers were Sinhala, the victims also Sinhala. The murderers were members of the Sri Lankan army, or their associates. The victims were not insurgents nor suspected insurgents. So the massacre does not fit with those same conventional categories. It upsets all of the polarised ideological positions that characterise discussion about the bloodshed in Sri Lanka. Therefore Embilipitiya is avoided.
There were two reasons for the deaths of the schoolchildren at Embilipitiya. The first was that some of the boys had teased the school principal’s son over a love interest. The second was that a few students had protested that some of the school’s land had been transferred to a businessman friendly with a local politician. These two facts are now well established. The military was used to obtain revenge by the school principal and interested parties in the land through personal contacts with officers.
In a video interview made by the Asian Human Rights Commission during June 2005, Mr Shelton Handuwela, a father of one of the victims and a founding member of the Association of Disappeared School Children at Embilipitiya, recounted some of the events of the time. He recalls that he received a message from an army officer to bring his son to a particular place at a designated time, which he did. The officer met him there and asked him to bring his child to the nearby Thimbalkuliya army camp, close to Udawalava, and meet the colonel who was in charge. This also he did; the colonel spoke politely and calmly and asked him to leave the child with him for one week, and to bring a toothbrush, towel and other necessities. Not knowing what else to do, the father followed his instructions. Before the end of the week he received a call to collect the boy. The colonel told him that the boy had swallowed some keys and glass and that he needed medical treatment. He told the father to take his child to a doctor and then bring him back in one week. After collecting his boy, the father heard from him that he was forced to swallow the keys and shards of glass. After one week, the boy was not yet healed. The father brought him back to the colonel but asked for more time. He was given another week. Coming back with the child the following week, the camp authorities hurriedly turned the two of them away, telling them to come the next week. The father began to take his son home by motorbike. A yellow Lancer car followed them from the entrance of the camp: some men alighted and hit the father, then took the boy away. He was never seen again. Another 47 children from the same school disappeared under similar circumstances. How they were killed and what happened to their bodies has not been revealed. At the time, their disappearances and deaths were not unusual: at least 15 per cent of disappeared persons in the south of Sri Lanka alone were under 19 years of age.
Anyone hearing this story asks some very obvious questions. Why did the father take his child to the army camp in the first place? Why did he leave him there for a week? Why did he take him for a second and third time, even though he knew his son had been severely tortured during his first stay? The father was not an ordinary villager. He was the Deputy Director of Education in the country. He had many years of professional experience and specialised in English, so he was able to communicate in the language commonly used by the social elite and upper bureaucracy. When asked these questions, the only reply he could give was that, “We had faith that they would not do something like this.”
In retrospect, other questions arise. Could the father have done anything else? Could he have hidden the child somewhere, for instance? Under the circumstances of 1989, he could not have taken such a risk. To hide one child would have put the father’s other two children, and even his entire family, at risk. Could the whole family have fled to some other part of the country? Perhaps, but no part of the country was safe: terror had spread everywhere; others would have asked questions, and may also have been put in danger. Could they have sought help from the courts? In those days, the courts had hardly any influence over what was happening: at least 30,000 persons were killed in the south alone, with the courts powerless to intervene. There were no controls over the military. Army officers were free to do as they wished. Even the teasing of a classmate over a love affair was within the scope of military affairs. An arrest could take the form of ‘an invitation’ for a father to hand over his son, as in this case. Detention could continue indefinitely. Extremely cruel torture could be inflicted and the family given responsibility for medical treatment and then told to return the victim. Once a decision was made to kill, kidnapping could be organised from an army camp itself. Such was the extent of power exercised by those in authority at the time.
If the rule of law had existed in the country to at least a minimum degree, how would this scenario have been different? The father would have asked why his son had to be taken to the army camp. He would have demanded to know the legal grounds. Without reasonable explanation, he would have refused to comply with the army’s instructions. If necessary, he would have sought the help of a lawyer, and taken the matter to court. He would have taken his case to the media, politicians and civil society organisations. Had his son still been taken and tortured, he would have reacted with ferocity having found out that he was forced to swallow keys and glass. He would have united with the families of the other 47 children early on and fought, probably successfully, to save their lives. None of those possibilities existed for the Embilipitiya parents.
Failure to protect the Bindunuwewa victims
Nor did they exist for the parents of the youths killed at Bindunuwewa. At the Bindunuwewa rehabilitation camp, 25 young men were hacked to death by a local mob on 25 October 2000. The murderers were Sinhala, the victims Tamil. The police officers and others responsible for the camp, also Sinhala, did nothing to stop the attack. No doubt the motivation for the killings at Bindunuwewa was racial. But does that factor alone explain what happened? Why weren’t the victims protected? Why weren’t the police and armed forces mobilised to foil the attack? The common feature of the two massacres, lost among all the racial and ideological positions taken on the killings, was the absence of the rule of law. Had a minimum degree of protection been available in either case, the massacre would never have occurred. The basic preconditions that allowed for each massacre were the same. Instead, the army was given freedom to act or not to act as it chose, and the victims were everywhere and from every background. Looking at what happened to the 48 innocent children at Embilipitiya, one can see a small reflection of the far greater horrors that were unleashed in the north of the country at that time. But although the scale may have been different, the quality of the military actions was the same, and permitted in each case by the lack of any external and internal restraints.
Discipline is enforced with an army through internal policing and investigation. Under normal circumstances, where army personnel are believed to have committed crimes, they will be brought before a military tribunal, even when a related case may be going on in a civilian court. However, during and after the disappearances and killings in Sri Lanka, these elementary practices were discarded. There has never been a military inquiry into what happened at Embilipitiya. Presumably, in nearly every instance of military atrocity during that period the story is the same. Had there been inquiries, there would be records of how victims were arrested and detained, and what finally happened to them. Above all, there would be records showing who gave the orders. However, no such evidence exists. In all probability, there were never any records kept of the 48 children at Embilipitiya, as the army officers did not feel any obligation to keep them. They felt free to do anything they liked, not only at Thimbalkuliya but also at any other place throughout the country, including Bindunuwewa.
What are the implications of this for the prospects of peace in Sri Lanka? Over the last 20 years or so a huge amount of literature has been turned out on how to solve the conflict there. Most of it deals with the conflict and parties in the north. It is common to read and hear about how peace can be arranged between the ‘Sinhala army’ and ‘Tamil rebels’. As discussed, although race may aggravate the violence, it does not help us to understand it or bring us closer to a solution. The real issue is the question of legal restraints on the armed forces, both from within and without. Without highly visible and far-reaching changes to the management and control of the Sri Lankan army, how will peace become possible? How will the parents of dead children in Embilipitiya be able to trust the army, let alone the parents of the dead from Bindunuwewa, or countless other killings in the north? If the army was let loose to roam freely in the south today, would the people there be any happier about it than the people in the north? Would they trust that there would not be more massacres? What reason would they have for such trust? What mechanisms exist to ensure that the army can be restrained?
These are all questions about institutions. Conflict cannot be stopped through goodwill and hope. It requires institutions to control the warring parties. If the Sri Lankan armed forces cannot be brought within the confines of a functioning justice system, then can there be any resolution of the country’s conflict? To the average Sri Lankan, the answer is obvious. However, the many scholars and theoreticians who dominate the discussion on the conflict, particularly those from abroad, have difficulty with obvious answers. One reason for this may be that they have built-in assumptions about minimally functioning institutions, acquired through a different lifestyle, which cause them to miss this fundamental point. Another may be that it is easier to reduce everything to religious, ethnic or political conflict than go into the minutiae of administration and justice.
Politics versus justice
Talk about justice is different from talk about politics. Of course, the two are related. But they are distinct. It is true that at one point Embilipitiya became a political rallying point and gave momentum to demands for change in the south, whereas Bindunuwewa never obtained such attention: it was almost universally condemned, but was not followed by any real action. That young Tamils could be slaughtered without political implications speaks to fundamental problems in Sri Lanka’s political process. But more importantly, in neither case were there any judicial implications: there was no input from the side of justice to affect the political discourse, because the must first exist something that can be called a discourse on justice. Such discourse is at present completely absent from Sri Lanka. It follows that the same is absent from any discussions about Embilipitiya and Bindunuwewa. In its absence, no tools exist with which to penetrate the rhetoric and propaganda of political and theoretical talk.
Many will challenge this position. It can be argued that, at least on the surface, there is talk about justice in Sri Lanka, and talk about justice for the victims of massacres. At least, there is some talk about some justice. Embilipitiya and Bindunuwewa are contrasted because in the former case eventually some persons were found guilty of kidnapping, whereas the persons accused in the latter were acquitted. So it is said that the parents of the Embilipitiya schoolchildren obtained ‘at least some justice’. These parents still do not know what happened to their children: where and how were they (presumably) killed? By whom? What happened to the remains? What does ‘at least some justice’ mean under these circumstances? It is simply a reference to a measure of punishment, without any reference to a basic level of credible justice, just as the limited talk about justice lacks credibility.
In fact, when talk is reduced to ‘some justice’, it is still political discourse. What is meant is: what kind of justice can be obtained through political pressure that would not otherwise be obtained in the absence of this pressure? Another contemporary example exists of this type of thinking about justice. At present, a strong lobby exists in Sri Lanka over the government’s failure to reduce crime. The effect has been to allow for the extrajudicial killing of some persons described as dangerous criminals. The political lobby is sated. Opponents to the killings are abused, or accused of being in league with the criminals. There is greater encouragement of vigilante-style justice, on the ground that law enforcement agencies are unable to do their jobs. This is a version of justice that comes from political pressure. It is symbolic justice, rather than legitimate justice, and it indicates that the justice system as a whole is in grave danger. It may have gone so far as to have already entered the justice system itself. The courts may put people in prison without much regard to the norms of justice so as to avoid serious political embarrassment. Under these circumstances all that people can demand is ‘some justice’: a symbolic act to make them feel there has been a societal response to their suffering.
Symbolic justice is no justice
Symbolic justice is the symptom of a sick society. Legitimate justice operates through institutions that function irrespective of political pressure. Independence of the judiciary is the characteristic of a sane society. Endless demands for symbolic justice for this group or that, this incident or that, will not bring sanity. The overall circumstances in the society will remain unchanged. In fact, the situation gets worse every day.
This is the present situation of Sri Lanka. Thus, the missing discourse on justice must be brought consciously and actively. Above all, it must be brought into the talk of peace and conflict resolution. Until this is done, fundamental problems with the state and its institutions will be missed, and there will be no hope of finding a lasting solution. Recommendations and actions based upon dialogue that neglects these problems and pretends that the state and its agencies are functioning to the minimum degree necessary will not serve anybody’s interests in the long run. The example of post-war Germany is telling. After defeat in 1945, serious discussions arose as to how it had not been possible to stop Hitler arising and dragging the country into conflict. It was recognised that new institutions were needed to prevent future occurrences of the same: as a result the constitutional court was established and given extensive powers. The prevention of future disasters was not left to the politicians alone. A similar approach is needed to ensure peace in Sri Lanka today. This does not mean replicating European models. It means that peace depends upon the rebuilding of institutions needed to protect society from conflict, particularly those of the judiciary.
In conclusion, the following areas should be given high priority in studies on peace, conflict resolution, democracy and human rights in Sri Lanka:
1. Conduct of army operations since independence, particularly after 1971. Apart from giving factual details, including extrajudicial killings, torture and other gross abuses of human rights, research should concentrate on the internal and external military controls or the lack thereof, and record-keeping by the armed forces.
2. Existing avenues for complaints against the armed forces and police in emergency or conflict situations, and quick redress, with particular reference to constitutional provisions.
3. Controls exercised through parliament on these occasions, with particular reference to their limitations.
4. Role of the courts in safeguarding rights on these occasions. Do they face limitations when emergencies are declared or are there more inherent defects that make them unable to play a decisive role when it is needed most? Have political allegiances, including ethnic bias, affected the work of the courts in protecting the rights of citizens?
5. Implications of over 30 years of conflict on the legal fabric of Sri Lanka, especially its administration in the hands of the police, attorney general and judiciary. Emphasis is needed on the constitutional provisions to strengthen the higher judiciary so that it can intervene to protect the country from further catastrophes.
6. Reactions or lack thereof from the Sri Lankan middle class to gross human rights abuse by the armed forces and the police. Has the middle class acted to discourage, condone or even encourage abuses?
7. Role of the media with regards to all of the above.