Retributive justice or restorative justice? Challenges to reconciliation:
By Neville Ladduwahetty
In general, the two recognized approaches to reconciliation are: Retributive justice and Restorative justice. While retributivejustice involves the perpetrator and the victim, restorative justice involves the perpetrator, the victim, and the community. Furthermore, while retributive justice is punitive, meaning that by punishing the perpetrator the victim finds relief that amounts to redressing the pain, albeit amounting to revenge, restorative justice focuses on healing the perpetrator the victim and the community.
The UNHRC Resolution is based on retributive justice. Paragraph 6 of the resolution requires Sri Lanka’s participation in a Sri Lankan judicial mechanism, including the special Council’s office, Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators” and paragraph 7 requires “the Government of Sri Lanka to reform its domestic law to ensure… trial and punishment of those most responsible for the full range of crimes under general principles of law recognized by the community of nations”.
Thus, when Sri Lanka co-sponsored the UNHRC Resolution, it endorsed the retributive approach to reconciliation. This approach requires a judicial mechanism to be set up to carry out inquiries to ascertain the truth based on the debatable presumption that “the truth would set us free”. However, finding the truth alone would not be adequate since the perpetrator has to be found as well. Therefore, not only must the truth be of a nature that justifies punishment, but there is also a need to find the perpetrator who committed the punishable crime. This makes finding the truth and the perpetrator, with or without the participation or foreign judges central to the retributive process and prior to punishing the perpetrators. Therefore, even if the truth is found, whether it is possible to find the perpetrator given the particular nature of the armed conflict in Sri Lanka is what would justify the retributive approach to reconciliation.Restorative justice on the other hand, could function by helping the victim to cope with grief and heal the pain, even in the absence of the perpetrator being found and punished.
FINDING THE PERPETRATOR
Mr. Austin Fernando in an article titled “Revisiting Aranthalawa Bhikku Massacre after Three Decades” published in The Island of June 2, 2017 gives a detailed account of how he averted a backlash following the massacre of 33 Buddhist priests at Aranthalawa. In it he cites several other horrific atrocities committed by the LTTE during the armed conflict in Sri Lanka. Taking a cue from the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC),Mr. Fernando advocates that “Investigation of all such incidents become relevant to understand the real status and to reconcile”. In addition to Aranthalawa other massacres cited by him are: Kattankudy, Kebithigolleva, Pettah Bus stand, Sencholai or Mullavaikkkal, and Digampathaha. However, he has not referred to the killing of 600+ police officers who were shot while made to kneel with their hands tied behind their backs, and the killing of hostages who were desperately attempting to escape, as well as the recent report by a former member of the LTTE that the LTTE had killed over 400 rival Tamils in their ascent to supremacy as the sole representative of the Tamil people.
Does anyone realistically expect to identify any of the perpetrators associated with any of the atrocities cited above? If this is not possible, how can the pain and grief of the victims of these horrific atrocities be addressed? Another aspect is that these atrocities were committed by those already dead, or if still alive could very well be hiding under false identities. Under the circumstances, the comment by Mr. Fernando that the need to investigate is being”…refuted by some others who consider such exposures from inquiries as irrelevant to reconciliation”, is pragmatically realistic because tracing or finding the perpetrators is a daunting task with hope of little or no success.
The outcome would be no different with regard to the security forces, since there would be countless narratives relating to actions taken by the security forces during the armed conflict. Since most of these narratives have already been recorded by LLRC and other Commissions such as the Paranagama Commission, and since these actions need to be investigated in the context of International Humanitarian Law applicable to armed conflict, retributive justice requires the narratives not only to be of a justiciable nature but also that the perpetrators who committed them be identified. For instance, the numerous narratives of relatives being handed over to the security forces and that they are now missing are insufficient to identify the nature of the crime and the perpetrator(s) responsible for the crime. Therefore, since any actions that would meet the threshold of a justiciable offence would already be known, the need for fresh investigations as called for by the LLRC or Mr. Fernando is a meaningless exercise because all that such an exercise would yield is a repetition of statements without the perpetrator being identified. Consequently, what is needed is for the Government to give wide publicity that it is prepared to investigate any actions by the security forces that could stand up in a court of law, together with witnesses presented who could identify the specific perpetrator(s) involved. Retributive justice would have relevance only under such circumstances.
Advocates of retributive justice should think long and hard about the existential realities with regard to finding the perpetrators responsible for violations that amount to war crimes and crimes against humanity. In this regard, it should not be overlooked that taking of hostages and the use of child soldiers also fall into the category of crimes against humanity. And since these crimes together with the atrocities cited above were committed at the behest of the leadership of the LTTE,regardless of whether they are still alive or dead, should be held accountable as violators of war crimes and crimes against humanity.
Upon reflection, advocates of retributive justice should realize that a judicial process as advocated by the UNHRC and co-sponsored by the present Sri Lankan Government may only establish a partial truth, because a “real” truth is a near impossibility. The result will be a skewed “truth”. Even more challenging is the other aspect of retributive justice which is finding the perpetrator who committed the crime. This certainly would be the case with all the horrific atrocities cited above notwithstanding investigations as recommended by the LLRC and repeated by Mr. Fernando.Therefore, retributive justice has relevance only if it could fulfil both challenges, namely finding the truth relating to the crime, as well as the perpetrator who committed the crime. Since punishment is not possible without meeting both challenges, punishing the perpetrator becomes central to the means by which the victim hopes to redress his/her grief.
Thus, retributive justice for the victim carries with it the notion that without retribution, relief is not possible. Relief through revenge carries with it the weight of an emptiness that is often said to follow revenge. On the other hand, advocates of restorative justice posit that relief to the victim is possible through processes such as counselling and rehabilitation which contribute to self-healing. Such approaches may be more meaningful and productive in instances where the truth cannot be established, or when the perpetrator or perpetrators cannot be located/found.
Instead of taking realistic and pragmatic approaches to reconciliation as discussed above, and which come within the scope of restorative justice, successive Governments and former Commissions along with their fellow travellers have adopted the retributive approach to reconciliation. They have failed to seek approaches that have critically questioned the appropriateness of retributive justice, given the particularities of the manner in which the LTTE and the security forces engaged in the armed conflict in Sri Lanka. The apparent refusal to critically revisit the path currently being pursued means that the retributive approach has been accepted, although it would leave in its wake incomplete conclusions and frustrating outcomes which eventually would only lead to distorting and damaging what reconciliation was hoping to achieve. Therefore, if the Government is serious about reconciliation it should engage seriously in an introspective exercise, and revisit the approaches currently being pursued by it, at the behest of the UNHRC.