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Dharsha Jegatheeswaran, IHRP Alumnus
Seven years after the end of a 30-year civil war that saw horrific mass atrocities, Sri Lanka currently stands at a crucial juncture on the road to accountability and justice. On one hand, the Sri Lankan government has made promising moves toward building accountability and reconciliation mechanisms with the support of the international community and the tentative support of the war-affected Tamil community. Yet at the same time, in stark contrast, the government continues to pander to Sinhala nationalist extremists that disavow any form of justice mechanism, and continues not to act on legitimate concerns of victims and war-affected communities.
In order for this attempt at accountability and reconciliation in Sri Lanka to truly be meaningful and lead to sustainable peace, the government must end this dichotomous approach. Instead, the government should take steps toward building confidence and trust in Tamil victims and war-affected communities, and work toward educating and persuading the Sinhala majority about the need for transitional justice, instead of watering it down in order to satisfy nationalist sentiments. Ultimately, victims must remain at the centre of all efforts toward accountability and justice.
The Sri Lankan civil war was a brutal armed conflict between the government and the Liberation Tigers of Tamil Eelam (‘LTTE’), an armed separatist group, which ended in 2009. During the last phase of the war, serious violations of international humanitarian and human rights law, war crimes and crimes against humanity were committed by both sides, resulting in the deaths of tens of thousands of Tamil civilians.
Following the war, the government led by then-President Mahinda Rajapaksa, operated under a paradigm of ‘victor’s justice’ and developed an authoritarian state, continuing systemic human rights violations of the Tamil population, and additionally inciting and condoning religious violence and discrimination of the Muslim population on the island.
All of this was documented and published in a report by the United Nations Office of the High Commissioner for Human Rights’ Investigation on Sri Lanka (‘OISL’), in September of 2015.
A window of opportunity opens
In January 2015, the Sri Lankan election saw the defeat of President Mahinda Rajapaksa’s administration and the election of a new President, Maithripala Sirisena, on a platform of restoring democracy and rule of law to the country.
Following the release of the OISL’s report, the new Sri Lankan government co-sponsored US-led Resolution 30/1 at the Human Rights Council that, among other things, encouraged Sri Lanka: (1) to meaningfully reform the security forces; (2) to release all illegally acquired land and, importantly; (3) to develop a credible justice mechanism that would include international judges, prosecutors, defence lawyers and investigators. Victims and war-affected communities, who have been advocating since 2009 for an international inquiry, saw this mandate to create a hybrid tribunal as a significant, though partial, victory.
The OISL report and Resolution 30/1, alongside the change in government, presented a window of opportunity for meaningful progress. Unlike the previous regime, President Sirisena and his Prime Minister, Ranil Wickremasinghe, appeared interested in repairing Sri Lanka’s international reputation on human rights.
New government fosters distrust and skepticism from Tamil victims and war-affected communities
However, in the months following Resolution 30/1, the government’s commitment to turning a new leaf has become increasingly doubtful. Senior government officials, including the president and prime minister, have already publicly reneged on the most important component of the resolution, the incorporation of international actors in a judicial mechanism. The president has also repeatedly assured security forces that “war heroes” will not be prosecuted, and even publicly rejected the OISL’s allegations of war crimes.
Initial cautious hopes of Tamil victims and war-affected communities have turned to distrust and skepticism of the government’s intentions as a result of this mixed messaging. This distrust has been further deepened by the government’s failure to undertake any meaningful confidence-building measures and address ongoing human rights violations, including: demilitarizing the North-East; repealing the draconian Prevention of Terrorism Act and releasing all political prisoners arrested thereunder; returning all illegally acquired lands; and ending a culture of impunity/condonation for sexual violence and torture.
Demilitarization is an especially necessary pre-requisite to any meaningful form of accountability and justice. The continued militarization of the North-East is directly linked to ongoing human rights violations, including sexual violence and torture, and implicitly creates a climate of intimidation and fear that would dissuade many victims and witnesses from coming forward to any form of judicial mechanism or truth commission. In a report released in January 2016, the International Truth and Justice Project documented 20 cases of torture by Sri Lankan security forces under the new regime and came to the following conclusion:
…These cases reveal not only that torture and repression continue in Sri Lanka but that they remain widespread and systematic. They are the work of a well-organised machine which continues to thrive within the Sri Lankan police and military fuelled by extortion. It is responsible for terrorising and oppressing Tamils. This is therefore not a question of a few rotten apples in the system, as the new government so often suggests, but rather the result of structures that have long been corrupted.
While the military presence has certainly decreased its visibility since the new government took power, the number of military personnel in the North-East still remains the same, and the military still has the same degree of involvement in civilian life. Many of the commanding officers that are alleged to have directly overseen/condoned war crimes were recently appointed to government or promoted within the military. For example, on February 25, 2016, former Army Commander Sarath Fonseka, who was active during the end of the conflict, was appointed to the post of Regional Development Minister.
Various international actors have also articulated the need for demilitarization over recent months including the US Ambassador to the UN, Samantha Powers, during her visit in November 2015.
Any approach to accountability and reconciliation must be victim-centred
In February 2016, a government-mandated Task Force began the process of national consultations on accountability and reconciliation. The Task Force is due to wrap up consultations by April and produce a report to the government with recommendations on how to set up transitional justice mechanisms. This is presumably to give the government enough time to develop a plan by the June Human Rights Council session, when the government is due to provide an oral update under Resolution 30/1.
However, an accountability process that is not credible in the eyes of victims and war-affected communities is a process that is doomed to fail. Consultations must be meaningful, wide-reaching and accessible, not mere window-dressing to satisfy international actors that progress is being made. Prior to and in parallel to consultations therefore, it is imperative that the government address the ongoing human rights violations, and take meaningful confidence building measures to ensure that Tamil victims and war-affected communities feel safe and secure enough to participate. Moreover, consultation processes should make a greater effort to include better representation of victims in their development and administration, to ensure that victims’ voices are at the table in a meaningful way.
International actors must keep pressure on Sri Lanka
On an island that has had an inordinate amount of corrupt and discredited commissions and inquiries, that is still governed by majoritarian politics, and that has still arguably not seen significant progress on human rights, it is simply too early to deem anything a success. Countries should continue to pressure the Sri Lankan government to fulfill its commitments under Resolution 30/1, and avoid prematurely heralding Sri Lanka as a model for other countries, as some have done.
For victims who have waited for seven years already without any justice, and who still continue to face violations of their human rights on a daily basis, now more than ever is when the international community should step up to ensure that justice is finally served, and the processes of healing and reconciliation can finally begin.
Photo caption: Thousands protest in Jaffna demanding an international inquiry into war crimes - February 2015 (Photo credit: Tamil Guardian).