2015 has been a very significant year for Sri Lanka's political destiny and well being. Crucial factors include the now-pressing necessity to hold an honest and acceptable accounting of alleged war crimes associated with the last phase of the 26-year civil war that ended in May 2009, and the presidential and parliamentary elections held in January and August (which saw the defeat of Mahinda Rajapakse’s increasingly authoritarian 11-year rule).
It’s a time of uncertainty, as grassroots nationalist passions, particularly on the Sinhalese streets, have the potential to disrupt the prospect for real stability and prosperity. This will require careful political management and international good will, both still in the balance as the country comes to grips with the immediate challenge of a major human rights accounting. I argue that a new president and parliament will overcome international skepticism and serious internal opposition by its efforts to hold fair and honest investigations of war crimes committed by both government and Liberation Tigers of Tamil Eelam (LTTE) forces, and that the nation faces a positive future.
This analysis first offers a quick review of the national trauma resulting from the long civil war. Second, this background to Sri Lanka’s current complicated political situation leads directly to an assessment of past attempts to monitor the conflict and investigate abuses. Third, I provide an overview of the 2015 elections, with a focus on the political opportunity for change created by the elections of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe. Fourth, I explore the possible consequences the election may have on both the United Nations High Commissioner for Human Rights Report of the OHCHR Investigation on Sri Lanka (released September 16, 2015, where the crimes are described as so massive there needs to be both judicial accounting and punishment), and to the Draft Resolution on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka (co-sponsored by Sri Lanka at Geneva, also in September 2015). Major challenges of meeting demands for accountability on the part of the Sinhalese-dominated government, its senior officers, as well as leading cadres of the LTTE (most of whom are now dead) have yet to be resolved.
A legacy of conflict
In 2009, Sri Lanka emerged intact but traumatized from a vicious 26-year civil war between the state (with its dominant Sinhalese majority) and the Ceylon Tamil minority secessionist Liberation Tigers of Tamil Eelam (LTTE). The events of that war even now overshadow the future of Sri Lanka, and it is important to recall some of its features, still embedded in the hearts of many citizens who suffered great loss.
Over the course of the war, various unsuccessful ceasefires each marked the beginning of four so-called Eelam Wars. Military engagements during this quarter century of conflict were often horrendous. For example, the November 1993 battle of Pooneryn saw the deaths of over 1,000 Sinhalese army personnel in a single night, as did the battle of Mullaitivu in July 1996. Civilian casualties in the war zone became increasingly appalling, and conflict spread deep into the heart of Colombo itself.
With the election of Mahinda Rajapakse as prime minister and his United Peoples Freedom Alliance (UPFA) government in 2004, the stage was set for the no-holds-barred final five years of struggle to defeat the LTTE militarily. Diplomatic and international efforts to intervene in the conflict were rejected. The last few months of the civil war, particularly events leading up to the final battle in the northeast of the country, became extremely controversial because of the involvement of innocent civilians. There, in April-May 2009, beside a remote lagoon (Nanthi Kadal), some 330,000 Ceylon Tamil civilians found themselves entrapped by their own leaders of the LTTE, and at the same time relentlessly attacked by a well-armed Sri Lankan army. Thousands died in so-called No Fire Zones, decried as a shameful human rights calamity by the UN and other organizations, notably the International Committee of the Red Cross (ICRC).
But the LTTE was finally defeated, and it brought to an end years of frightening security emergencies and disruption of normal life in the largely Sinhala south. Rajapakse was able to translate these events into a parliamentary victory in 2010. Perhaps not unexpectedly, political hubris and Sinhalese triumphalism followed. This was a time when the government could have attended to the serious international human rights charges associated in particular with the final months of conflict, and, by extension, with the whole unresolved matter of Ceylon Tamil civil rights and regional autonomy. But the opportunity to do so slipped away, with the government ignoring unrelenting international demands for accountability that it ascribed as due to Tamil activism abroad.
International monitoring and investigations during the Rajapakse era
Rajapakse’s government was never accommodative of international efforts to monitor violence and investigate wartime abuses. Prior to the conflict’s climax in 2009, the Sri Lankan government’s N.K. Udalagama Commission, which led an investigation into human rights abuses, had an international component. Attached to the ‘Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights’ was an International Independent Group of Eminent Persons (IIGEP) under the chairmanship of P.N. Bhagwati, former Chief Justice of India. The IIGEP was present from 2006-2007 in Sri Lanka, and was accorded polite assistance with its labours. But the agency resigned in due course due to a near complete absence of co-operation from the armed forces and government agencies monitoring human rights, and because of a lack of necessary supporting initiatives, such as an adequate and trustworthy witness and victim protection capacity.
International demands for an investigation into wartime abuses increased following the fighting of 2009. To its minimal credit, the Sri Lankan government established a Lessons Learnt and Reconciliation Commission (LLRC) in 2010, which provided a list of features deserving of implementation technically based on the principle of restorative justice, but with no inherent individual reckoning. At best, the LLRC experience did open a national dialogue on the sensitive topic of justice and reparations.
An even more important missed opportunity was the complete failure to assist the 2011 UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka, Chaired by Marzuki Darusman. The UN Panel was refused entry into the country. Their report remains the single best description of what was involved on the part of both the government forces and those of the LTTE, providing credible eyewitness accounts of the grim circumstances experienced by the entrapped civilians. Thus the wounds of war remain a raw and festering sore, especially among the Ceylon Tamils, including the million or more who over the years sought refuge in the West.
Two elections open a chance for reform
The election of Maithripala Sirisena as president of Sri Lanka on January 8, 2015 (described aptly as a silent revolution) triggered unexpected and positive changes. A 10-year period of increasingly authoritarian and lawless state-military rule by former President Mahinda Rajapakse and his powerful family was abruptly terminated. Ended as well were the growing diplomatic isolation for the island nation, and the ‘days of terror’ (bishana samaya) that had been hallmarks of this period for anyone seriously opposing the hegemony.
Muslim girls on the Galle Face, Colombo, June, 2015 | Courtesy Pam Matthews
Rajapakse’s political legacy is generally regarded as negative, though he could claim some measures of success. He did preside over the defeat of the LTTE. Despite the huge disruption resulting from years of recent armed conflict, economically the nation has achieved a GDP growth rate of 6.5 per cent and a controlled inflation of two per cent (Asian Development Bank, September 2015). Rajapakse’s outreach to Chinese investment did much to help rebuild parts of the economy and physical infrastructure (especially roads and ports).
Yet Rajapakse’s abuses of office accumulated with time. Particularly troubling was his seizure of the judiciary and the outrageous removal in 2013 of former Chief Justice Shriani Bandaranayake, as well as the manipulation of the constitution, especially the infamous 18th Amendment permitting a presidency of more than two terms and giving the office extreme powers (now repealed). His accomplishments eventually became overshadowed by the regime’s general corruption and, to a certain degree, its resistance to acceding to international and domestic pressure for an investigation of human rights abuses.
Thus when Maithripala Sirisena, a mild-mannered former cabinet minister in Rajapakse’s United Peoples Freedom Alliance Party (UPFA, a spin-off of the once- powerful Sri Lanka Freedom Party, SLFP), presented himself as a presidential candidate who could also appeal to the main opposition United National Party (UNP), he won the office by the slimmest of margins. The armed forces, which still had power to contend with only six years marking the end of the civil war, resisted Rajapakese’s requests to intervene with the election and supported its results. The outcome signaled that Sri Lanka is indeed a democracy.
The parliamentary elections of August 17, 2015 underscored the momentum for reform. It also introduced the UNP to the prime minister’s office, led by a highly-experienced, non-abrasive, non-confrontational ‘problem-solver,’ Ranil Wickremesinghe, a former prime minister (2001-04). With 106 seats out of a parliament of 225 seats, the UNP can govern only by means of coalition with one wing of the UPFA, a couple of small Sinhalese parties (including the Janatha Vimukthi Peramuna, one-time anti-state guerilla front), the Tamil National Alliance, and the Sri Lanka Muslim Congress. Technically, the UPFA is under the chairmanship of President Sirisena, but half of the party remains loyal to former president Rajapakse, who got himself elected to parliament as an ordinary MP, taking with him a destabilizing clique.
As in Thailand and Myanmar, two close-by states with similar large Theravada Buddhist majorities, Sri Lanka has seen a spike in ethno-communal nationalism, with Buddhists fearful of seeing their religious heritage diluted, and threatened by the rise of strong minority cultures and secularism. There are of course Buddhist prelates who entirely reject religious political activism, but at the grassroots level, these religious identities can be quickly harnessed for political aims. The spectre of Sinhala Buddhist nationalism looms through such movements as the Bodu Bala Sena. Sinhala Buddhist nationalists contested under their own party and fared poorly, though several slipped into parliament by attachment to the Rajapakse clique of the UPFA. Overall, the parliamentary election was surprisingly peaceful, an indication of the unobstructed work of the national election commission and of civil society, which jointly provided a calm environment essentially devoid of religious or ethnic communalism.
President Sirisena and Prime Minister Wickremesinghe face a substantial challenge to keep a thin parliamentary majority from slipping away, as members who are currently loyal may possibly be enticed to cross the floor to join the Rajapakse faction. Another consequence is a jumbo cabinet of 90 ministers and junior ministers, described as “a colossal and shamefully male-dominated cabinet” with some offensively unworthy appointments from the pro-Rajapakse camp. At the same time, the unique feature of a coalition parliament provides a rare opportunity to come to grips with longstanding ethnic communal challenges and problem-solving. Of special importance is the appointment of the Tamil National Alliance as the official parliamentary opposition, and of Kanagasabapathy Sripavan, a Ceylon Tamil, as Chief Justice. In short, the Sirisena government has secured enough public support to proceed with much of its reforming agenda.
A new opportunity for international investigators?
During the six years that have passed since the end of the war, international pressure has only increased for a credible protocol to investigate and bring to justice those involved in fateful decisions on both sides pertinent to the final months at Nanthi Kadal. Two recent UN documents with a focus on an appropriate judicial mechanism to address these matters have been released: the September 18, 2015 report (set down in March, but delayed by request until after the parliamentary election), and the September 24, 2015 UN Human Rights Council’s draft resolution on promoting reconciliation.
The High Commissioner’s report calls for a hybrid judicial mechanism with participation of international as well as domestic judges, lawyers, prosecutors and investigators. The UN Human Rights Council draft resolution, on the other hand, does not specifically demand a hybrid judicial mechanism, although it recognizes the importance of participation of Commonwealth and other foreign judges, arguably affirming that this responsibility is ultimately a Sri Lankan one.
Galle Road, Colombo | Courtesy Pam Matthews
Advocates of the hybrid or ‘international’ court model definitely include the minority communities. They can point to the absence of former credible national commissions on civil war-related matters, even those with international participation, such as the ultimately toothless N.K. Udalagama Commission. The question needs to be asked if conditions to conduct an impartial inquiry are that much different now in contemporary Sri Lanka.
The prospects for an affirmative response are now better than ever due to the new government’s acceptance of the absolute need for disclosure. But the nationalist sentiment in the Sinhalese south will make it strategically impossible for the Sirisena/Wickremesinghe parliament to allow the judicial process to be overseen or governed by foreign officials. Prime Minister Ranil Wickremesinghe has provided a blueprint for a four-tier indigenous ‘truth seeking’ system, including a Commission for Truth, Justice and Reconciliation, an Office of Missing Persons, an Office of Reparations and an appropriate domestic judicial procedure to bind all these elements together. There is as well the all-important acknowledgement that the process will have recourse to international experience and advice, notably South Africa’s celebrated 1996 Truth and Reconciliation Commission.
Further to these ambitions, The National Peace Council, a Sri Lankan civil rights organization that has long and bravely supported human rights issues, notes that “The spirit in which the government needs to approach the accountability and healing process is that it is right for Sri Lanka, and not because of international or other external pressures...seeking international expertise becomes necessitated by need rather than by politics.” In support of this initiative, Sri Lanka co-sponsored the September 30 draft resolution to the UNHRC (A/HRC/30L.29) on promoting reconciliation, accountability and human rights, and recognizing the need for a process of accountability for violations and abuses committed on both sides of the former conflict.
But what is described as the most vital part of that resolution, the matter of the possible role of foreign judges and legal personnel, is still not completely resolved. On September 27, Prime Minister Wickremesinghe indicated Sri Lanka can only support ‘consultations’ with foreign legal figures, and even this will require new parliamentary support. This is the potential worrisome flashpoint that has yet to be addressed by the Sinhala majority. What is in place at this time of writing (October 5, 2015) is a judicial mechanism with some “international participation,” but Sri Lanka will be in charge of its implementation. Sirisena and Wickremesinghe have been given nine months to provide an “oral update” to the UN High Commissioner for Human Rights, and 18 months to give a written report on the progress or lack of progress of these proceedings. Any public rejection of direct foreign involvement with a UN-sponsored commission works to the advantage of former president Rajapakse, who seethes with fury at his ousting, and who remains a potent and dangerous force in the politics of Sri Lanka. It is yet to be determined whether the new government has the political will to press on in this sensitive but ultimately unavoidable matter if the country wants to regain its former respectable place in the international community and further its economic aspirations.
In conclusion and by way of summary: in the past 10 months Sri Lanka has returned to the democratic world, has shed itself of the odious Rajapakse regime with its associated diplomatic opprobrium, and reengaged with the international community. The state must still rid itself of its pariah status, which resulted in devastating damage to its international economy (for example, its apparel industry lost its valuable GSP Plus trade preference with the EU market in 2010), and general downgraded democratic standing (for example, Prime Minister Stephen Harper refused to attend the Commonwealth Heads of Government meeting in Colombo in 2013 because of Rajapakse’s negative reputation).
And as indicated above, the immense loss of Ceylon Tamils over the course of a quarter century has resulted in a sturdy, generally well-off international diaspora – most of it interested in participating in the wellbeing of Sri Lanka if the state will address outstanding grievances. This has ramifications in Canada, where a large Tamil community form a constituency that continues to have profound importance to the ultimate outcome of Sri Lanka’s future. One has only to recollect the huge outpouring of Tamil support in Canada for some kind of international intervention, especially on May 10, 2009 as thousands blocked downtown Toronto’s Gardiner Expressway for hours. That community is a strong and generally prosperous part of Canadian society, but still deeply interested in the full restitution of Tamil rights and some kind of meaningful federalism in Sri Lanka. They could add tremendously to the prosperity and integrity of the country, and there are already indications that events favour their inclusion in the country’s destiny, including the state’s embrace of the necessity of human rights review and the prospect of much more regional political autonomy.
Perhaps this sea change in Sri Lanka’s attitude towards its complex and often painful past is best seen in how the former May 18 ‘Day of Victory’ public celebration marking the Sinhalese triumph in the civil war is now much more appropriately called the Day of Remembrance, embracing the LTTE and all others who died in the horror of Nanthi Kadal and other battles over close to three decades. This is the affirmative spirit that will transport the nation into a new and much more progressive era.
Bruce Matthews is Professor Emeritus at Acadia University in Nova Scotia. He was the Canadian appointment on the International Independent Group of Eminent Persons, which was mandated to observe investigations into human rights abuses in Sri Lanka.
The views expressed here are those of the author, and do not necessarily represent the views of the Asia Pacific Foundation of Canada.