Retributive justice or restorative justice? Challenges to reconciliation:
Posted on June 19th, 2017


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”.

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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 sincethe perpetrator has to be found as well. Therefore, not only must the truth be of a nature that justifies punishment, but there isalso 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 perpetratorbeing found and punished.

FINDING THE PERPETRATOR

Mr. Austin Fernando in an article titled “Revisiting AranthalawaBhikku 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 Aranthalawaother 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 atrocitiescited 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 beinvestigated 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 thembe 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 perpetratorbeing 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,itshould not be overlookedthat 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.

CONCLUSION

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 anearimpossibility. 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 fulfill 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 whichthe 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 thatis often said tofollow 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 approachesmay 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 travelers 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 beingpursued means that the retributive approach has been accepted, although it would leave in its wake incomplete conclusions and frustrating outcomes whicheventually 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.

4 Responses to “Retributive justice or restorative justice? Challenges to reconciliation:”

  1. Fran Diaz Says:

    We thank Mr Ladduwahetty for this article calling for Justice for the People of Lanka through RESTORATIVE JUSTICE.
    We do NOT want Retributive Justice ! We want the TRUE FACTS EXPOSED TO THE WHOLE WORLD !

    The CRIMES against the majority of the People of Lanka from the LTTE for nearly 30 yrs of Terrorism in Lanka have yet not been listed and exposed to the International Community & the West.

    Why COVER UP the truth of matters in this war against ruthless Terrorism ?

    The Truth must be exposed if the Sinhala People & the Others of Lanka are to live in Peace with the Tamils. Sri Lanka must be kept whole and the rule of law must prevail.

    “Justice delayed is Justice denied”

  2. Cerberus Says:

    Thank you, Mr. Ladduwahetty for this excellent thought provoking article. As you say what are trying to achieve by this whole exercise? It was the Tamil ordinary people who lost the most due to the LTTE. Their children were forcibly recruited to the LTTE, the food supplies were diverted to the LTTE fighters a large number of whom came from South India illegally, most of the infrastructure in the North and East were destroyed by the LTTE and also by the fighting between LTTE and the army. The LTTE were essentially a group of thugs and terrorists who just wanted a kingdom for themselves. They cloaked their greed in Tamil Nationalism to obtain support from South Indian Tamils and also from the Tamil diaspora abroad. They called themselves freedom fighters to cover their actions and the brutality towards the Sinhala people who had given them so much when they came as illegal immigrants from Tamil Nadu.

    This small group of terrorists could have been put down very easily as they did the uprising by the Sinhala youth in the South in 1970’s and again in 1989-90’s period by both Mrs. Bandaranaiyake and Ranil Wickremasinghe. According to the Batalanda report, Ranil is supposed to have directed the torture and killed over 15,000 Sinhala youth most of whom were innocents. A total of 60-90,000 is supposed to have died. No inquiries were held for crimes committed by the police and the armed services. Why was there no outcry by the International agencies, Amnesty International, UNHRC etc?

    The LTTE was not put down in the same manner since it became internationalized due to the interference by many Western powers, and India. Some of the puppets of the International powers such as CBK and Ranil prevented the removal of Prabhakaran many times. Even that final stages of the war David Milliband from U.K. and Boucher from France came over to exert pressure on President Mahinda Rajapaksa. Luckily for the country on May 19, 2009, he withstood all international pressure and let the armed forces do their job.

    As Mr. Ladduwahetty says if there were Missing People how do we set about finding what happened to them?
    1. Over 30,000 people died in the Tsunami of December 2004. A large number of who remain unaccounted for and classified as missing people.
    2. Over a Million people fled abroad to the West and 66,000 went to India( in camps now) and assumed different identities. Recently a whole family which is supposed to have disappeared resurfaced in India and were arrested by Indian police. Most of them are classified as missing people.
    3. Many people died in the war. Most of them are classified as missing people.
    4. Many civilians were killed by the LTTE themselves. When the LTTE took over 300,000 civilians as hostages they shot anyone who tried to escape. It was the Sri Lanka Army at great sacrifice to themselves who saved these civilians and also rehabilitated the 12,000 hardcore LTTE who were then released into society. Here too a large number were classified as missing people.

    Any effort to look for the truth must look at both sides of the issues and look at the good done by the Sri Lanka Army and also the massacres of innocent Sinhala villages done by the LTTE. Sri Lanka must be the only country in the world which sent food and medicine to their enemies while fighting a terrorist uprising. WHAT ABOUT JUSTICE FOR THE MISSING PERSONS AMONG THE SINHALESE AND MUSLIMS WHO WERE RUTHLESSLY KILLED BY THE LTTE.

    The office of the Missing Persons set up by the current Yahapalanaya is another Trojan horse which has been brought into harm our Honorable soldiers. According to the rules of the Office of the Missing Persons which go against all natural law. Anyone abroad can bring charges against anyone in Sri Lanka and then those foreign countries can extradite and bring them to justice in their countries. In addition, the witnesses who bring such charges cannot be cross-examined as in a normal court of law since their identities are kept hidden. It is an insane act that has been established to lower the morale of the Sri Lanka forces and to destroy the country so that the powers be can then take over the areas of Strategic interests such as the Trincomalee harbor, and divide up the country to help their allies such as the Tamils who can then import the hordes of poor Dalit Tamils in South India into Sri Lanka to Tamilize the country permanently.

  3. Dilrook Says:

    The problem is the UNHRC, etc. are selectively applying both forms of justice.

    Retributive justice only against Sri Lankan security forces and restorative justice to the benefit of Tamils only. This destroys both justice and reconciliation.

    Retributive justice must be applied to all parties – security forces, LTTE, TULF-ITAK-TNA, LTTE diaspora, India, NGOs, etc. All wrongdoers must be punished. Otherwise it should not apply to anyone.

    Restorative justice must also apply to all or none. Sinhala and Muslim displaced must be resettled. Compensation must be provided to all affected not just Tamils.

    Sri Lanka messed up the whole UNHRC process since 2009 onwards by pandering into selective retributive justice against own forces and selective restorative justice to Tamils only. Since then it has been one UNHRC resolution after another along these two tracks which our governments foolishly paved. Had the regimes listened to learned international law experts (not political scientists and others), this disaster could have been avoided. It is 8 years too late now.

  4. Dilrook Says:

    The disaster in our UNHRC response can be seen from the political fallout of all our Geneva representatives. Rajiwa and Mahinda Samarasinghe left the then government and joined Sirisena camp. Tamara was removed from her post and made several highly published remarks. Dayan has made several remarks that have hit the media. This shows our chaotic UNHRC response since 2009.

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