Sri Lanka’s slow dance on transitional justice

The island nation of Sri Lanka featured prominently on the formal agenda of the UN Human Rights Council’s 34th session that ran from 27 February to 24 March. Sri Lanka’s compliance with an October 2015 Council resolution came under review and another country-specific resolution, again co-sponsored by the Sri Lankan government, passed on 23 March.

The content of the current resolution reiterates the need for Colombo to follow through on A host of reforms – largely pertaining to human rights and transitional justice – that the coalition government had endorsed in the 2015 resolution.

In a nation dominated by ethnic Sinhalese, the suppression of Tamil rights in a range of areas – including language, education, employment and land – led to the rise of Tamil militancy in the 1970s. From 1983 to 2009, the Tamil Tigers waged a civil war against the Sri Lankan military with the hope of establishing an independent Tamil state in the northern and eastern parts of the country. The Tigers were militarily defeated in May 2009. Eight years on, the war’s root causes are still unresolved and there’s been no ACCOUNTABILITY for atrocities committed during the fighting.

In that context, it is thought implementing A comprehensive transitional agenda will help to ensure the nation does not return to violent conflict. Unfortunately, the government has plenty of work left to do.

The slow pace of progress

In terms of fulfilling previous UNHRC commitments, the administration of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe has made some strides when it comes to international engagement. For example, Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights, visited Sri Lanka in February 2016. Various UN special procedures mandate holders have also been given access to the country and have met with a host of stakeholders.

However, most of the 2015 resolution has not been implemented and – to properly implement the latest resolution – Colombo needs to embrace its purported agenda with real vigour. More specifically, when it comes to major benchmarks, many Sri Lanka watchers are looking to several major transitional justice mechanisms: a truth commission; offices to deal with disappearances and reparations; and a judicial mechanism to handle abuses that allegedly occurred during the nation’s civil war.

In January 2016, Prime Minister Wickremesinghe appointed a Consultation Task Force on Reconciliation Mechanisms (CTF) to undertake broad consultations to design the country’s transitional justice mechanisms. The creation of the CTF was a seemingly positive development and it has produced a thorough report with a range of recommendations. However, neither Sirisena nor Wickremesinghe have endorsed the report, let alone its recommendations.

In relation to transitional justice mechanisms, parliament (hurriedly) passed legislation to create an Office of Missing Persons (OMP) in August 2016, but little has happened since then. It’s not clear when the OMP will be staffed or start to function. And, notably, the government continues to prevaricate on the issue of strong international participation - which would help ensure a credible process - in any of these mechanisms. (Colombo’s unwillingness to include foreign judges in a judicial mechanism has drawn the most criticism.)

Speaking at the UNHRC on 28 February, Sri Lanka’s Foreign Minister Mangala Samaraweera indicated the government planned to present draft legislation for A truth commission with the next two months. However, Samaraweera has previously made either inaccurate or misleading statements in international forums about the government’s plans, and the pace of reform implementation.

Moreover, there appears to be no timetable for the creation of an accountability mechanism, which is the most controversial of the four mechanisms. Besides, Sirisena has indicated that the government will protect the military from accountability issues; such statements play well politically because the military remains a highly regarded institution amongst the majority Sinhalese community.

The military itself is almost exclusively Sinhalese and most people in this community probably wouldn’t want to see senior military officials held ACCOUNTABLE. The fact that Sirisena, a former cabinet member in the previous administration led by Mahinda Rajapaksa, served as acting defense minister during the last two weeks of the war further complicates this.

Worries about what might come next

The abovementioned reforms are obviously important, as is finding a political solution to the longstanding ethnic conflict. Yet coming to agreement on a devolution package that the Tamil community could accept is far from a foregone conclusion; even less controversial issues pertaining to constitution-building are still being debated.

In some ways, it’s a bit surprising that the current administration, a difficult power-sharing arrangement between longstanding political rivals (the Sri Lanka Freedom Party and the United National Party), agreed to co-sponsor another resolution in Geneva. These sorts of actions don’t play well domestically and this remains an insecure government.

Moreover, Rajapaksa – who ruled for nearly 10 years before his unexpected electoral defeat – was re-elected to parliament in August 2015 and remains politically relevant. Sirisena has continued to have trouble consolidating support within the Sri Lanka Freedom Party, as many members are still loyal to the former president. While he cannot become president again, a return to power for Rajapaksa and his allies certainly isn’t out of the question in the coming years. In addition, elections to both the local government and three provincial councils may be held this year, potentially raising the political costs of bold or controversial action from the coalition government.

Placating others

It’s likely that Colombo’s willingness to co-sponsor another resolution is an attempt to deflect international pressure and keep outside observers (mildly) upbeat about the government’s stated agenda. Furthermore, resolutions of this nature aren’t legally binding.

The current administration has presented an optimistic, reform-oriented front towards the international community. During Rajapaksa’s tenure, Sri Lanka moved closer to China and denounced international criticism pertaining to the island nation’s dismal human rights record and unwillingness to address wartime ACCOUNTABILITY. The Sirisena administration has managed to reorient the country’s foreign policy and attained considerable breathing space.

Still, with growing concerns about the performance of the Sirisena administration (in Sri Lanka and abroad), and a nearly universal acknowledgement that Sirisena, while certainly better that Rajapaksa in terms of governance, has fallen short of expectations, observers are hoping for decisive action from Colombo.

These issues and recommendations – to varying degrees – have been noted by the UN Office of the High Commissioner for Human Rights in its latest report on Sri Lanka. The president and the prime minister could start by publicly championing the CTF’s report its recommendations.

Additionally, by the end of April, the government could publish A detailed timeline that expounds upon the creation of its four transitional justice mechanisms, including when pertinent legislation is expected to be passed and when the various mechanisms are intended to become operational. In its report, the Office of High Commissioner for Human Rights calls on the government to present 'a comprehensive strategy on transitional justice, with a time-bound plan to implement the commitments', encapsulated in the previous Council resolution, among other reforms.

Clearly, the government would still have latitude to deviate from a more detailed agenda as needed. However, with so many worries about the lack of progress, a more detailed roadmap would be a sign of good faith. There’s certainly more to be done.

The transitional justice agenda is further complicated because the government has publicly committed to other reforms too, including ones pertaining to economic policy and anti-corruption efforts, neither of which have gone smoothly. The worry is that transitional justice will not be prioritized in the coming years.

Waning international pressure and the need for local ownership

Since the civil ware ended in 2009, international actors, particularly the US, Canada and various European countries have kept Sri Lanka on the international community’s radar and the UNHCR was the principal forum through which this was accomplished. (The body has passed five country-specific resolutions on Sri Lanka since 2012).

However, even though recent developments in Geneva ensure that the international community will remain involved in Sri Lanka’s war-related issues for an additional two years, we shouldn’t expect international actors to have that much influence or to pressure the Sirisena administration considerably.

From transitional justice experts to human rights activists to policymakers, it has long been said that Sri Lanka’s transitional justice project – if it is to succeed – must to be locally owned and victim-centered.

But is this A project that Sirisena and Wickremesinghe (among others) truly believe in? It could well be that Colombo is simply not serious about transitional justice. When Sri Lanka’s progress is assessed again at UNHRC in March next year, we’ll have a clearer answer to that question.
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