COMMISSIONING ACCOUNTABILITY?

POLITICAL ASSASINATIONS AND THE POLITICS OF FEAR

-- Vasuki Nesiah

The killing of Dhramaratnam Sivaram has catalyzed enormous attention and action locally and internationally – his murderers have been condemned, epitaphs written, memorial funds established.  Members of parliament have introduced resolutions calling for the government to set-up a special inquiry.  International journalism associations have condemned the killing and warned that killing Sivaram was a deep blow to freedom of the press.  Academics have already started chronicling his life and death.

Yet, as many have emphasized, Sivaram’s assassination is not an isolated incident.   The numbers regarding political killings under cover of the ceasefire are chilling - over 200 killings, over 1000 abductions/disappearances – and these are conservative estimates [i]    Against this backdrop local and international human rights organizations have called for commissions of inquiry that track culpability for the whole spate of assassinations, and hold those guilty accountable.  This would go beyond the Sivaram focused inquiry that the TNA/LTTE called for.  It would also go beyond the inquiries that the government has appointed in the case of killings of government employees.  Instead, increasingly groups are demanding an independent commission that reviews all political assassinations.  In its May Day press release, the Sri Lanka Democracy Forum called for an international commission with a comprehensive mandate and wide investigative powers to inquire into all post ceasefire killings; SLDF urged that the findings of the commission lead to the prosecution of those found responsible.   Most recently Human Rights Watch (HRW) called for the establishment of an independent commission; HRW also asking for immediate action to address the security situation to ensure that such a commission can function freely without threat or prejudice.

But is a commission the answer?  Sri Lanka has virtual commission diarrhea – it seems that commissions, boards of inquiries, investigative committees [ii] and the like could be appointed into anything ranging from a bad turn on the wicket to a prison massacre.  However the past record of commissioned investigations is not particularly promising.  Commissions have often served as administrative sops to critical voices.  There is a tried and true recipe – when pesky questions are raised, promise an investigation, appoint a commission, cramp the mandate, lean on commissioners, massage the inquiry, delay the report – by the time the findings are released, the issue has faded from public attention and critical political energies have moved on to other issues.  Commission an inquiry to decommission dissent.

Firstly, commissions are often set up to construe accountability questions so narrowly that the system itself is shielded from critical scrutiny [iii] .  Moreover, forgive the cynicism but invariably commissions have been political footballs used to score goals against opponents, but carefully maneuvered away from ones own turf.   In a few cases, commissions are followed by the prosecution of some minor functionaries to bring closure to accountability questions; in effecting such closure commissions actually become part of the process of licensing impunity for those higher in the chain of command.

Against all odds (!), some of our past commissions have operated with integrity and commitment and effected considerable positive impact within the constraints of their mandate.  However, even such commissions have had to confront challenges with their investigations thwarted, their reports effectively buried and their recommendations ignored.  For instance, when investigations have required the cooperation of the security forces, past investigators have found that the police administration has become so politicized, investigation requests get conveniently lost in rusty filing cabinets.  The internal incentive structure continues to be one that rewards protection of superiors, and penalizes whistle blowers.  If the matter investigated needs the cooperation of the LTTE – even the term ‘whistle blower’ does not enter the LTTE lexicon!  The official LTTE response has been the erection of a wall of non-cooperation and the consequences of even peeking over that wall can be rather grim.  All indications are that largely the same code of conduct is operative in the Karuna camp.

This climate of fear would raise enormous challenges for the proposed commission.  Reports of groups as diverse as the SLMM and the UTHR suggest that the majority of post-cease fire assassinations were the responsibility of the LTTE.  In fact until April 2004, they were almost the exclusive province of the LTTE; over the last year the LTTE has continued and even escalated its killings, but its brutality has also been matched by Karuna’s party, in some cases aided and abetted by local security forces in the areas they operate.  In a security context where people are afraid to accuse Karuna or the LTTE of swatting a fly, it is difficult to imagine a traditional human rights investigation that will inquire into events, trace the chain of command and identify those with command responsibility – or at least it is difficult to imagine a commission being able to do so without endangering even more lives, including those of the commissioners and staff themselves.  

All that said, the ground situation with political assassinations is so dire, one needs to try every possible route to some measure of accountability to arrest, deter or, at least, collectively condemn, the campaign of killings.  Clearly existing law and order institutions are unable to address the problem.  Moreover, if not addressed, the militarization of political space can only become worse.  With few credible alternatives available the idea of an impartial investigative commission has merit for many reasons.  First, where political assassinations are increasingly treated as a naturalized part of the ‘ceasefire’, a commission specifically created and mandated to investigate political assassinations underscores that these acts are to be condemned unequivocally.   Some believe that killings have been ignored on the theory that holding parties to the cease fire accountable will disturb the fragile peace; Instead setting up such a commission sends the opposite message – i.e., it would underscore the notion that impunity for assassinations is fundamentally inconsistent with the ceasefire; political assassinations cannot be tolerated because they constitutes a fundamental threat to the peace process.

The commission is also valuable because of the comprehensive scope of the proposed inquiry – all assassinations are to be investigated, all killings condemned, all lives valued equally.  For too long we have subscribed to an unconscionable moral algebra that loudly condemns the assassination of those who are in prominent positions, come from privileged backgrounds and have powerful friends, while being alienated from the lives and deaths of the anonymous majority who have died in the war.   One of the most striking things about the outcry regarding Sivaram’s killing is that many of the loudest voices condemning his killing were those who had been indifferent to hundreds of other assassinations; in fact, in some cases they were the very people who had gone so far as to justify other assassinations.   The commission could provide our community the opportunity to mourn, condemn, and ensure accountability for all killings, irrespective of the identity of killer and killed.

Finally, if structured accordingly, the commission can offer an independent process of review that has legitimacy with all communities – this is critical given our deep political divisions [iv] .  Some groups have suggested an international body or one that includes international persons.  In an ideal world a commission will be constituted through a transparent consultative process and is headed by a diverse group that has local legitimacy.  However, given that the security situation for local commissioners and staff can be quite threatening, an internationalized process may be the only route to ensuring the background security necessary for a commission to operate safely (and, therefore, potentially, effectively).  We should note that internationalization in itself is no guarantee of a commitment to accountability.  Local human rights activists have complained that in the past some international actors, in particular the Norwegians, have been hostile to efforts demanding human rights accountability viz the LTTE.  Thus moving forward with a commission would require guarantees of good faith cooperation and commitment from all actors, including the GOSL, the LTTE, the Karuna faction and the Norwegian mediators.  A credible process also requires provisions ensuring effective investigative powers that will obligate the Sri Lankan army, the LTTE and others to offer their cooperation with regard to handing over of documents, access to jails and similar institutions, and, significantly, information regarding internal command structures so that there is clarity regarding decision making responsibility.  Moreover, civil society would need to monitor and critically follow the commission’s work to ensure transparency and accountability in the commission’s own operations, and to be a vocal advocate for the commission and its investigative mandate when it faces obstructionism and threats from the institutions it is investigating. 

Taking into considerations all these issues we would support a campaign for a commission of inquiry.  However for reasons that have been touched on above, we should move forward with the recognition that this is not a cure-all; we need to continue with other efforts to condemn political assassinations and resist militarization of the public sphere.  Moreover, the commission itself should develop new approaches and methodologies that go beyond what SLDF, HRW and others have prescribed thus far.   For instance, we need to recognize that the problem is not merely one of impunity for the perpetrators involved in the 200 plus cases on record – the politics of fear is sustained by a more complex collusion of social forces and background political structures [v] .  Thus we should develop a more creative and visionary approach to a commission on political assassinations so that it can be a catalyst for a more complex public dialog on accountability and the militarization of public space.

For instance, if the security situation and the background climate of fear is a constraint on the commission’s investigation, this should not be simply a hidden barrier it confronts within the intricacies of investigating each case, but something the commission places at the center of its work.  Rather than confining itself to investigating particular assassinations, we propose that the commission should investigate, convene hearings, and advance analysis of the broader socio-political impact of the climate of fear created by political assignations.  In addition to the problem of impunity, this climate of fear has also cramped political space in ways that have crushed dissent on a range of issues, from civil society struggles against child recruitment to activisms enabling greater democratization in Tsunami reconstruction – i.e., political assassinations is not just one more human rights violation, but a violation with tremendous adverse reach on activism regarding human rights and democratization more generally.  Thus it is critical that the commission investigate not only the human tragedy to those 200 plus victims, but that it also investigate the spread effect of those 200 killings, the broader socio-political tragedy to the communities concerned on multiple fronts.

Moreover, rather than confining itself to making findings in those particular cases, the commission may fruitfully investigate the enabling and contributing conditions to impunity regarding political assassinations.  When there are so many killings with such intensity, it cannot be reduced to a few demonically bad apples [vi] ; rather there are likely to be high level policy decisions that have ordered the killings, multiple individual and institutional ends advanced by conforming to the hierarchies and power structures that sustain those policies, and important socio-political aspects to the ground situation that have ensured impunity for these killings, particularly in the North and East.  Mythic evil should not substitute for historical analysis.  Thus, in addition to recommendations regarding the prosecutions of those responsible, the commissions should also investigate these broader enabling factors and make recommendations to address those.  Some of the most critical aspects of the background enabling conditions can change only through the dynamics of social struggles – these cannot be engineered through commission recommendations; that said, the commission can still perform a useful role in making recommendations regarding those measures that are more easily integrated into more immediate policy making processes.  For instance, such recommendations may range from proposals for a restructured peace process that rewards de-militarization and an empowered role for civil society to proposals for a strong international human rights monitoring framework.  Certainly in the long term, the impact of the commission is enhanced if its focus goes beyond naming, shaming and recommending prosecutions for those with criminal responsibility for those assassinations that have already taken place (although that is a critical and indispensable step), to also recommending the wide ranging institutional changes needed to combat the politics of fear.   It is possible to develop recommendations such as these only if the commission’s brief goes beyond the killings themselves, to also include the background conditions that enable and contribute to it.

In conclusion then – yes, lets appoint a commission; let us challenge the impunity that we have lived with during the ceasefire; killings and the political culture of fear that those killings have unleashed are incompatible with a just and sustainable peace.   However let us come to terms with those 200 lives, situate them in the societies they came from, and recognize that their deaths involved multiple tragedies, personal and political, individual and collective – the commission’s efforts to address the injustice that snuffed out their lives, has to be similarly focused on multiple scales of inquiry and action.

Home