Violence in Sri Lanka — The Crime of Complicity and Condonation
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against thuggery and assault.
Sinhalese nationalists may be looking for an enemy…The Economist
( March 12, 2018, Montreal, Sri Lanka Guardian) The latest issue of The Economist cites commentator Tisaranee Gunasekara, as warning: “If we, the Sinhalese, fail Muslims as we failed Tamils, history will not forgive us, and will punish us with a new and worse war”. This comment may have its roots in the claim by some political analysts that that “Sinhalese extremists are trying to transfer lingering hostility against Tamils onto Muslims (most of whom speak Tamil as their mother tongue)”.
Hate speech and hate propaganda contribute its venom and fuel to the fire of ethnic and religious bigotry. This was clearly seen in an attack on Muslims by the Sinhalese on February 26th when thugs ran riot in Ampara after a video went viral of a Muslim restaurant-worker confessing to adding “sterility pills” to food sold to Sinhalese women, which of course was false propaganda. The Economist goes on to say: “many Sinhalese believe, wrongly, that the slightly higher birth rate among Muslims poses a threat to the continued demographic supremacy of the Sinhalese. But throughout the civil war (against the Tamils which ended in 2009) Muslims and Sinhalese mostly coexisted peacefully”.
First off, it must be stated that all Sinhalese in the country are not involved in the thuggery and mayhem that went on over the past few weeks. It is fair to assume that the majority of the 70% Sinhalese want to live in peaceful coexistence with the 10% Muslims and 13% Tamils in the country. Secondly, one wonders whether the grouse of the thugs is based on ethnic or religious grounds, or both. Be that as it may, on the religious count, one could well note Pulitzer Prize winning author Marilynne Robinson’s quote: “There’s something about religion that transcends the specific circumstances of religion, you know? We’re wrong to think that a religious loyalty precludes finding sympathy with other people who are also religious”. As for ethnic violence, as someone said, it is the infatuation with violence that is evil.
Whatever it is, it behoves both government and society to protect the vulnerable. In his book The Crime of Complicity: The Bystander in the Holocaust, Amos N. Guiora identifies a bystander as a person who sees but chooses to ignore. The victim is faceless; the bystander is anonymous. Guiora says: “[T]o determine legal culpability of the bystander, it is necessary to distinguish bystander conduct and knowledge, from perpetrator intent and conduct and victim knowledge and conduct. The three principal actors – perpetrator, bystander and victim – must be examined from three distinct perspectives: conduct, knowledge, and capability. Determination of culpability is dependent on that three-part analysis impacted by conditions and circumstances”.
More compelling is the inquiry into the complicity theory and the question “has the State done its part in protecting the vulnerable from private thugs?” At the core of this issue is the Theory of Complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583-1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.
The 18th Century philosopher Emerich de Vattel was of similar view as Grotius, holding that responsibility could only be attributed to the State if a sovereign refuses to repair the evil done by its subjects or punish an offender or deliver him to justice whether by subjecting him to local justice or by extraditing him. This view was to be followed and extended by the British jurist Blackstone a few years later who went on to say that a sovereign who failed to punish an offender could be considered as abetting the offence or of being an accomplice. The complicity theory, particularly from a Vattellian and Blackstonian point of view is merely assumptive unless put to the test through a judicial process.
Another theory that may be applicable to the issue is the Condonation Theory which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice, which was tantamount to ratification of the acts in question or their condonation. The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them. Another reason attributed by scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against thuggery and assault. There is also the Separate Delict Theory’ in State responsibility, whereby the only direct responsibility of the State is when it is responsible for its own wrongful conduct in the context of private acts, and not for the private acts themselves. Indirect State responsibility is occasioned by the State’s own wrongdoing in reference to the private assault on citizens. The State is not held responsible for the act of violence itself, but rather for its failure to prevent and/or punish such acts, or for its active support for or acquiescence in violence. Arguably the most provocative and plausible feature in this approach is the desirability of determining State liability on the theory of causation. Tal Becker states: “The principal benefit of the causality-based approach is that it avoids the automatic rejection of direct State responsibility merely because of the absence of an agency relationship. As a result, it potentially exposes the wrongdoing State to a greater range and intensity of remedies, as well as a higher degree of international attention and opprobrium for its contribution to the private terrorist activity”.
Another method of determining State responsibility lies in the determination whether a State had actual or presumed knowledge of acts of its instrumentalities, agents or private parties which could have alerted the State to take preventive action.
In conclusion, it must be emphasized that the author has no evidence of guilt on the part of the Sri Lankan Government or any of its instrumentalities of complicity, condonation or tortious liability. What appears above is merely an academic and legal discussion of the various philosophical and legal thoughts that have been put to practice by courts in various jurisdictions over the years. This having been said, it is incontrovertible that those involved in governance as well as social and civic justice must not be mere bystanders. The vulnerable must be protected at all costs.
