Sorting Bad Apples: Is Lustration the Answer to Sri Lanka’s Military Impunity?

Sorting Bad Apples: Is Lustration the Answer to Sri Lanka’s Military Impunity?

Featured image courtesy Ishara S Kodikara/AFP
SHAMARA WETTIMUNY on 05/16/2017
Suspects with military links feature in a number of ongoing investigations into crimes and human rights violations committed in Sri Lanka’s post-war period. The Criminal Investigation Department’s report in Lasantha Wickramatunga’s murder investigation detailing military-run ‘death squads’, and the alleged involvement of military intelligence in the disappearance of Prageeth Eknaligoda are examples of this tendency. Meanwhile, recent allegations that 134 Sri Lankan peacekeepers sexually abused children in Haiti exemplify the problem of military indiscipline in the country.
In this context, there is a need for a process to distinguish between perpetrators of crimes, and those within the military who conducted themselves lawfully and professionally during the war and its aftermath. This process is crucial for post-war peace, as the failure to separate criminals from those who abide by the law fosters a culture of impunity, and brings the entire military apparatus to disrepute in the eyes of victims. Prosecution of perpetrators is the most obvious and straightforward means of ensuring accountability. As Sri Lanka grapples with questions of accountability, the viability of lustration will no doubt be considered.
This article discusses the viability of lustration as a means of advancing accountability in post-war Sri Lanka. It examines this question through a historical lens, based on the experience in Europe. This article does not seek to promote or refute the suitability of lustration; it instead invites policymakers and human rights practitioners in Sri Lanka to reflect on the historical lessons that can be learnt from lustration policies adopted elsewhere.
What is lustration?
 
The term ‘lustration’ is usually associated with policies adopted by newly independent states across Eastern Europe in the 1990s following the collapse of the Soviet Union. The term ‘lustration’ comes from the Latin word lustratio, which means ‘purification by sacrifice’. Thus it was viewed as a cleansing process for former Soviet states to remodel their societies on the basis of liberal democratic principles such free speech, accountability, and the rule of law.
The term lustration has no strict definition. Susanne Karstedt defines lustration as involving criminal proceedings against elites and public officials from the previous regime, and mass screening procedures to identify collaborators from the middle and lower ranks of the hierarchy.[i] Cynthia Horne and Monika Nalepa view lustration as a form of vetting, employed to remove or ban perpetrators from participation in the post-authoritarian state.[ii] Lustration, by nature, involves a concerted and overarching state policy. Therefore, isolated disciplinary action or prosecution of specific former regime members do not fall within the definition of lustration.
In practice, policies involving lustration have differed vastly from country to country. For instance, in post-communist Germany, lustration involved: (1) criminal proceedings against Erich Honecker, the former head of state, and his elite supporters; (2) prosecutions against border guards who killed or injured refugees attempting to escape East Germany; (3) dismissals of Socialist Unity Party officials; and (d) prosecutions of State Security Agency (STASI) officials, collaborators and informants.[iii] Thus a combination of criminal and non-criminal justice procedures were adopted within the remit of lustration policies in post-communist Germany. Yet, in most other experiences, lustration has only included measures of a non-criminal justice nature, such as vetting; dismissals; public confessions; the removal of officials from public and economic life; and income and pension cuts.
The European experience
 
The European experience with respect to lustration points to four important lessons. First, lustration has a tendency to be overbroad in scope. Lustration laws can extend beyond the police and military, and be used against the media and academia. For example, Poland introduced a new lustration law in 2007, which drastically altered the scope of its original Lustration Act of 1997.  The number of people subject to vetting would have increased from around 36,000 people to 400,000-700,000 people.  Moreover, the new law called for the vetting of journalists, academics and actors who may have been influential, but certainly did not drive policy in communist Poland. Fortunately, Poland’s constitutional court declared the relevant articles of the new law unconstitutional.
Second, lustration often lacks credibility due to its reliance on incomplete information. By the time East Germany collapsed in 1989, the STASI had amassed files on approximately four million East Germans, and a further two million West Germans. The declassification of these secret files – compiled by secret police with the aid of collaborators and informants – represented a central tenet of lustration in post-communist Germany. However, in the last days of the security state, East German officials made it a priority to destroy evidence, burning and shredding what they could before their offices were occupied.
According to Horne, informants and secret police agents had incentives to falsify information. Such incentives included rewards for providing information, and the need to protect friends and family who were under suspicion by the security state. In this context, the veracity of the information contained in the files, as well as the incomplete documentation due to conscientious efforts to destroy evidence, seriously skewed findings.
Third, poorly planned and executed lustration measures have resulted in unemployment and further criminality, which has exacerbated conflict rather than promoted peace. In Ukraine, the 2014 lustration law banned certain military and police actors from occupying their positions for a period of ten years, resulting in significant unemployment. The United Nations has cautioned against the mass removal of public officials – particularly military personnel – who are unable to find alternative jobs, as they ‘constitute a significant security risk and represent a threat to the transition itself.’ Meanwhile, even outside Europe, in post-Ba’athist Iraq, indiscriminate lustration measures involving demilitarisation resulted in large-scale unemployment and political violence. Following the 2003 Iraq War, the dismantling of the military apparatus under the guise of lustration drove a number of disillusioned military personnel towards extremist groups such as the Islamic State.
Finally, lustration is often associated with political revenge. The 1996 Resolution of the Council of Europe stipulates that ‘the key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.’ However, in multiple states across Eastern Europe, lustration measures were used as a means of exacting political revenge and pursuing personal vendettas. Following the screening of Czechoslovakia’s military counterintelligence service, only 117 out of 7,000 members retained their positions due to their links with the ousted communist regime.
Furthermore, in post-communist Albania, a lustration Verification Committee (made up of the ruling Democratic Party members) blocked 139 members of opposition parties from participating in elections.[iv] More recently in Turkey, following a failed coup in July 2016, President Erdogan dismissed 50,000 civil servants, in addition to military officials, academics, and judges suspected of sympathising with opposition groups. Lustration can therefore be used to enable witch-hunts and scapegoating, rather than genuine accountability. Such politically motivated lustration is likely to perpetuate a cycle of conflict, and impede meaningful peace and reconciliation.
Conclusion: Lustration in Sri Lanka?
 
Lustration measures are not novel to Sri Lanka. In fact, former head of state Sirimavo Bandaranaike was subjected to civic disabilities following her election defeat in 1977. She was removed from Parliament, and prohibited from voting or contesting at elections for a period of seven years. The question of lustration may become relevant again as post-war Sri Lanka attempts to advance accountability within its military apparatus.
The European experience, however, points to several risks. First, lustration policies meant for the military could later be expanded to target media personnel and academics. Second, lustration based on incomplete information could seriously jeopardise the credibility of the process. Third, the large-scale and indiscriminate purging of lower ranking military personnel in Sri Lanka could result in mass unemployment, criminality and violence. Finally, lustration used purely for political revenge could be perceived as witch-hunting and scapegoating, and undermine peace and accountability. If Sri Lanka chooses to enter the realm of lustration to address military impunity, policymakers and human rights practitioners must consider these risks. Misguided or mismanaged lustration could fail to advance accountability, and even impede peace and reconciliation.
Shamara Wettimuny has an MSc and BSc in International Relations and History from the London School of Economics. She currently works at Verité Research, a Colombo-based think tank. The views expressed in this article are her own. 
 
Notes:
[i] Susanne Karstedt, ‘Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedures and Justice’, (1998), at 16.
[ii] Cynthia M. Horne, ‘Transitional Justice: Vetting and Lustration’, Forthcoming in Dov Jacobs (ed.), Research Handbook on Transitional Justice (E. Elgar), at 10; M. Nalepa, ‘Lustration,’ in L. Stan and N. Nedelsky, eds. Encyclopedia of Transitional Justice. Cambridge: Cambridge University Press, (2013)
at 46.
[iii] Karstedt, at 22.
[iv] Robert Austin and Jonathan Ellison, ‘Post-Communist Transitional Justice in Albania’ (2008), at 388.
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