Transitional Justice in Asia I

In February, the International Crimes Tribunal of Bangladesh sentenced two Jamaat-e-Islami (JI) leaders for crimes committed during the independence war of 1971. Over a million people had been killed and tens of thousands of women raped during the war. The crimes were allegedly committed by the Pakistani army and its collaborator, Jamaat-e-Islami.

The court decisions resulted in serious clashes. JI supporters questioned the credibility of the tribunal while others demanded a harsher sentence. The resulting violence calls into question the effectiveness of transitional justice – the mechanisms and processes to redress past large-scale human rights abuses. It also provides a lesson for similar efforts in other countries to end impunity and reconcile social division, such as Sri Lanka.

The conflict between the Sri Lankan government troops and the Liberation Tigers of Tamil Eelam (LTTE) spanned from 1983 until 2009. There were serious civilian casualties and wide-spread violations of international human rights law and humanitarian law in the final stages of the clashes in 2009, such as rape, extrajudicial killings, shelling civilian and humanitarian targets, and using civilians as shields. Both parties to the conflict have been accused of committing these crimes, with the government side allegedly bearing the major responsibility. Since the end of the war in May 2009, there have been calls to bring perpetrators of the mass crimes to justice. The recent UN Human Rights Council (UNHRC) resolution (A/HRC/19/L.2) that encourages reconciliation and accountability for the Sri Lankan civil war represents the latest effort in this direction.

Seeking accountability constitutes an essential element of transitional justice – the processes and mechanisms that seek to redress past large-scale abuses, both judicial and non-judicial. Judicial processes of transitional justice end impunity and can stand as an impediment to future attempts of mass atrocities. The culture of impunity undermines the effectiveness of domestic and international laws in preventing atrocity crimes as it allows criminals to go unpunished and thus breeds risks of mass atrocities. Hence, ending impunity constitutes an essential aspect of preventing massive abuses, such as genocide and crimes against humanity.

Moreover, given the fact that post-crisis societies are usually still in complicate and delicate situation, a balanced approach to transitional justice is needed so as to achieve the goal of justice, reconciliation and rule of law. First, the judicial process should comply with international standards. The recent unrest in Bangladesh demonstrates that inconsistencies and politicisation of the judicial process could deepen division and fuel violence.

Second, transitional justice also includes non-judicial measures, such as truth-seeking and institutional reform. The social division in Bangladesh has deepened partly because meaningful development of such measures has yet to occur. Hence, the effort to pursue transitional justice in Sri Lanka should balance between judicial and non-judicial measures. Moreover, other complimentary measures, such as infrastructure construction, resettlement of displaced people and rehabilitation of ex-combatants, are conducive for social reconciliation, which in turn can facilitate the transitional justice process.

Sri Lankan society has been seriously divided by the protracted civil war, and investigation and prosecution of human rights violations during the war are essential for reconciliation as noted in the latest UNHRC resolution. However, it must be pursued in a balanced and consistent manner to achieve the intended goals.