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Keeping Intra-Afghan Talks on Track
Keeping Intra-Afghan Talks on Track
Sri Lanka's President Maithripala Sirisena (front) stands for the national anthem during a ceremony to swear in Ranil Wickremesinghe, leader of the United National Party, as Sri Lanka's new prime minister, Colombo, 21 August 2015. REUTERS/Dinuka Liyanawat
Report 278 / Asia

Sri Lanka: Jumpstarting the Reform Process

Seven years after its civil war ended, Sri Lanka’s democratic space has reopened but strains are building from a powerful opposition, institutional overlaps and a weakened economy. To make reforms a real success, the prime minister and president should cooperate with openness and redouble efforts to tackle legacies of war like impunity, Tamil detainees and military-occupied land.

Executive Summary

The unexpected chance for lasting peace and reconciliation in Sri Lanka that followed President Maithripala Sirisena’s January 2015 election faces increasing turbulence. Initial moves by Sirisena’s government halted and began to reverse the slide into authoritarianism and family rule under Mahinda Rajapaksa. Its reform agenda is ambitious: restoring the rule-of-law and ending impunity for corruption and abuse of power; a new constitution; a complex package of post-war reconciliation and justice mechanisms agreed with the UN Human Rights Council (UNHRC); and major policy changes to jump-start a beleaguered economy. Progress, however, has been slower than key constituencies expected and lacks the coherence and resources needed to sustain it. The “national unity” government expanded the political centre and isolated hard-line nationalists, but the window for change has begun to close. Seizing Sri Lanka’s unprecedented opportunity for reform requires bolder and better coordinated policies, backed by a public relations campaign to restore sagging popular support.

The stuttering progress strains ties between the government and the constituencies that brought it to power. Tamils in the north and east voted overwhelmingly for Sirisena but are increasingly doubtful he will fulfil his reconciliation and justice promises. Many Sinhala “good governance” activists criticise the failure to follow through on rule-of-law measures, continued cases of alleged nepotism and corruption and what they consider the lethargic pursuit of corruption and criminal investigations. As the budget deficit grows and currency reserves dwindle, belt-tightening has been blocked or scaled back due to protests. At the same time, strains are growing between Sirisena’s Sri Lanka Freedom Party (SLFP) and the United National Party (UNP) of Prime Minister Ranil Wickremesinghe. The small window for threading the political needles essential for reforms is shrinking. 

Institutional factors hamper progress: too few staff and too little expertise, particularly on reconciliation and transitional justice issues, multiple power centres and unwieldy, often overlapping ministries, and the different priorities and governance styles of president and prime minister. Governance reforms are slowed by need to work through bureaucrats and politicians implicated in past abuses, some of whom were given cabinet posts to help the government achieve the two-thirds parliamentary majority needed to approve a new constitution.

Boldness is limited by Sirisena’s struggle to counter the faction loyal to ex-President Rajapaksa within his SLFP, especially in upcoming local elections. Reacting defensively to Sinhala nationalists’ attacks against Sirisena’s relatively modest reconciliation gestures and proposed constitutional reform and scared of giving opponents ammunition or angering the military and security services, the government has returned only a small portion of military-occupied land and released few Tamil detainees. 

Seven years after the end of the civil war in May 2009, issues of reconciliation and accountability remain largely unaddressed. The government appears to be backtracking on transitional justice plans, particularly the role of foreign judges and experts. The enormity of the crimes, especially in the final weeks of the war, makes them impossible to ignore but hard for the military and most Sinhalese to acknowledge or accept responsibility for. Mechanisms promised to the UNHRC feed Sinhala nationalist suspicions, while attempts to reassure Sinhalese and the military encourage doubts among Tamils about government willingness to pursue justice for wartime atrocities or back constitutional changes that satisfy legitimate Tamil aspirations for meaningful autonomy. 

To hold its coalition together and meet UNHRC obligations, the government must sequence reforms carefully, speeding progress on some fronts to rebuild public confidence, while committing resources to build support and institutional capacity for deeper and harder steps, particularly making progress on the critically important special court for prosecuting war crimes. Better communication and cooperation between president and prime minister, more transparent policymaking and clearer lines of authority are essential.

To rebuild confidence among Tamil communities in the north and east, the government must quickly release detainees and military-occupied land, begin credible inquiries into the fate of the disappeared, investigate and end abuses and repeal the Prevention of Terrorism Act (PTA). For these and other reforms to be sustainable, the president and prime minister will have to assert authority over the military and national security apparatus, including by developing a credible security sector reform plan. If they are serious about constitutional changes that will contribute to a lasting solution to the ethnic conflict, Sirisena and key ministers must make a much stronger public case for greater devolution of power.

Ending impunity and restoring rule-of-law are concern to the whole country, as seen in the popularity of good governance and anti-corruption citizen movements in the Sinhala south. To resonate more broadly with all ethnic groups and regions, measures for addressing the war’s legacy should be presented by the government and civil society as an integral part of the rule-of-law and good governance agenda. Moves to prosecute key cases of corruption and political killing under the Rajapaksa regime need to be backed by a sustained public relations campaign that articulates a broad vision of a reformed state, the links between the various initiatives and the benefits they bring all communities. 

As longstanding dysfunctional political dynamics reassert themselves, the government’s ability to distinguish itself from the Rajapaksa era, which is essential to its political survival, has begun to fade. If ethnic and religious chauvinists in all communities are not to grow stronger and belief in democratic reform that Sirisena’s election reflected and encouraged is to be rekindled, the government must make a concerted push to jump-start the flagging reform process.

Recommendations

To strengthen rule-of-law and democratic governance 

To the government of Sri Lanka: 

  1. Ratify the UN Disappearances Convention and pass enabling legislation criminalising disappearances; terminate the Paranagama commission on missing persons and transfer its investigation files to dedicated police investigation units. 
     
  2. Pass the pending Right to Information (RTI) Act and legislation to establish a well-resourced and empowered Audit Commission. 
     
  3. Repeal the Prevention of Terrorism Act (PTA) and replace it, in consultation with lawyers and human rights defenders, with legislation in line with Sri Lanka’s international human rights obligations; and develop and publish guidelines for expediting cases against existing PTA detainees and releasing those against whom there is insufficient evidence to bring charges.
     
  4. Overhaul the Victims and Witness Protection Act, in consultation with human rights activists, to establish a well-resourced witness protection authority fully independent of police and security forces.
     
  5. End the longstanding conflict of interest in the Attorney General’s Department by establishing a permanent, independent special prosecutor for serious human rights cases in which state officials are alleged perpetrators. 
     
  6. Establish a clear focal point in the Attorney General’s Department, staffed by state counsels vetted for conflict of interest or involvement in past cover-ups, to oversee and prosecute emblematic cases of political killings and abduction currently under investigation.

To promote reconciliation, reestablish effective civil administration in the north and east and begin security sector reform

To the government of Sri Lanka: 

  1. Take immediate steps to end remaining military involvement in civil administration; remove the military from all shops, farms, hotels and other commercial businesses; and immediately suspend construction or expansion of military camps in the north and east.
     
  2. Establish, in consultation with communities and the military, transparent principles, processes and timetables for the return of military-occupied land or payment of compensation for land that is not to be returned. 
     
  3. End intimidating monitoring of civil society activists and ex-detainees by security services and appoint an independent, multi-ethnic, well-resourced internal affairs unit to investigate credible allegations of arbitrary detentions, abductions and torture in custody.
     
  4. Begin developing a longer-term plan for comprehensive security sector reform that includes job training for demobilised personnel; and devise and implement in the short term policies for handling individuals credibly alleged to be responsible for serious violations of human rights and humanitarian law.  

To support constitutional reform needed for lasting political stability

To the government of Sri Lanka:

  1. Launch a public outreach campaign, led by the president and prime minster, in support of expanded devolution of power to provinces.
     
  2. Support a mixed electoral system that maintains proportionality and the influence of smaller, regionally-dispersed parties through use of double-ballots.

To address the complex demands of transitional justice processes

To the government of Sri Lanka: 

  1. Reaffirm publicly the government’s commitment to full implementation of the 1 October 2015 UN Human Rights Council resolution and take initial steps to build capacity and public support for effective transitional justice, by:
     
    1. launching a coordinated public outreach campaign – involving the offices of the president and prime minister, the Reconciliation Secretariat (SCRM), National Unity Office (ONUR) and national dialogue ministry – to promote the value of transitional justice mechanisms and highlight links to broader rule-of-law measures, beginning with immediate distribution of the UN Office of the High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL) report in all three languages once Tamil and Sinhala translations are available;
       
    2. giving the public consultation process adequate resources and endorsement and presenting draft legislative proposals to it for popular input, with a transparent timeframe for final submission to the parliament; 
       
    3. publishing draft legislation for the Missing Persons Office and inviting active input from families of the missing and disappeared and other stakeholders;
       
    4. establishing a timeline for training judges, lawyers and investigators for participation in the special war crimes court and for passing legislation establishing command responsibility as a mode of criminal liability and incorporating war crimes and crimes against humanity into national law; and
       
    5. requesting the OHCHR to recommend international prosecutors and judges for participation in the special court as committed to in the resolution. 

Colombo/Brussels, 18 May 2016

During a rare ceasefire in 2018 in Andar, young Afghan men and boys fly both the flags of Afghanistan and of the Taliban. CRISISGROUP/Fazal Muzhary
Commentary / Asia

Keeping Intra-Afghan Talks on Track

The peace talks between the Afghan government and Taliban offer a genuine opportunity for peace although obstacles abound. In this excerpt from our Watch List 2020 – Autumn Update, Crisis Group urges the EU and its member states to continue pushing for a more inclusive peace process, specifically in terms of women’s representation in the negotiations, avoid singling out the Taliban as responsible for obstacles for peace, and reassure the Afghan government by continuing aid into the future.

This commentary is part of our Watch List 2020 - Autumn Update.

September saw the start – at long last – of peace talks between the Afghan government and Taliban. The U.S. had been trying to kick off such negotiations for most of 2020, since signing its own agreement with the Taliban on 29 February. Yet the onset of talks stalled for months; the Afghan government resisted the release of Taliban detainees to which the U.S. had committed, while the insurgents continued to carry out acts of violence, defying President Ashraf Ghani’s long-sought request for a ceasefire before commencing peace talks. The intra-Afghan talks offer a genuine opportunity for peace although obstacles and risks abound. The continued violence first and foremost: although the Taliban scaled back attempts to seize territory and monitors reported fewer combat deaths than in previous years, targeted killings rose, and the civilian casualty toll remained among the world’s highest. On the government side, Afghan leaders have spent the year deadlocked over political appointments, rendering governance increasingly dysfunctional. As for the U.S., its approach seems guided by the desire to disengage its troops as soon as possible. Many Afghans and international observers are concerned that a hasty settlement could result in degradation of civil liberties and human rights, especially women’s rights, as well as regression into state fracture and full-fledged civil war. 

To help avoid those outcomes, the European Union and its member states should: 

  • Continue pressing for a more inclusive peace process, particularly in terms of women’s representation in the Afghan government’s negotiating team and affiliated bodies. Europeans should also provide support to civil society initiatives that complement the formal negotiation process and promote peace at grassroots level.
     
  • Call upon all Afghan political figures to uphold the May agreement between President Ghani and Abdullah Abdullah, and encourage Ghani to respect provisions specifying Abdullah’s authority.
     
  • Ensure unified messaging among member states so as to best use Europe’s principal sources of leverage – financial assistance and economic engagement with a future government – to nudge negotiations forward.
     
  • Avoid singling out the Taliban as responsible for threats or obstacles to peace; instead, make clear that any action destabilising the peace process, including by the government, deserves condemnation. Brussels should balance its support for the Afghan government with acknowledgment that the Taliban will be a major political force in any post-peace Afghan order.
     
  • Reassure the Afghan government by committing to continue aid into the future. European leaders could qualify such reassurances and align them with EU principles by allowing for re-evaluation in the event of changes to the government in a peace settlement, as the EU did in its May Council conclusions.

The Hard Road to Talks

An atmosphere of nervous anticipation prevailed in Afghanistan when the U.S. and Taliban signed an agreement in Qatar’s capital Doha on 29 February, laying out a timetable for the withdrawal of foreign troops in exchange for anti-terrorism guarantees and a promise to commence intra-Afghan negotiations. A historic week of reduced violence across the country preceded the accord. Though not technically a ceasefire, this period saw a significant drop in fighting between Taliban and Afghan security forces. It was the insurgent movement’s first major gesture of good-will toward Kabul since its ceasefire declaration during Eid al-Fitr in 2018. 

Any positive feeling quickly dissipated, however, as the Afghan government publicly rejected the terms of the prisoner exchange to which the U.S. had committed in Doha and the Taliban responded by announcing a resumption of hostilities. Fighting picked up across the country, albeit at a lowered intensity that seemed tied to the Doha agreement (although it was not spelled out in the public text). The Taliban carried out fewer high-profile attacks in cities than in previous years and limited their large-scale assaults on government forces. The insurgent group made none of its traditional annual attempts to overrun provincial capitals and did not announce its usual spring offensive. Afghan security forces maintained a largely defensive posture, which officials claimed was a demonstration of the government’s commitment to peace, but almost certainly also owed to the near cessation of U.S. airstrikes after 29 February. Those strikes contributed to record levels of civilian casualties in 2019, and observers hoped that casualty figures would plummet in 2020. The war continued to take a high toll, however, as the rates of targeted killings and small bombings climbed in many parts of the country. These included two attacks on prominent women’s rights activists in Kabul.

The U.S. waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction.

Meanwhile, the U.S. applied pressure on both sides, dragging the prisoner exchange forward, as the government and Taliban let prisoners go in small batches. The releases stretched into September before reaching the 29 February agreement’s promised totals. The U.S. also waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction. Just days before 29 February, President Ghani was declared winner by the narrowest of margins, without official clarity on multiple vote recounts and audits. His chief challenger, Abdullah Abdullah, and allied politicians threatened to not only protest the results but also establish a “parallel government”. Abdullah’s staff refused to vacate Presidential Palace grounds (where they had been working as part of a power-sharing deal struck between Abdullah and Ghani after the previous election in 2014). The standoff prevented politicians from agreeing on the composition of a negotiating team to represent the government in intra-Afghan talks – which donors, including the EU and member states, had repeatedly urged Ghani to do – until late March. Perhaps in part due to acrimony over appointing the negotiators and powerbrokers’ jockeying to place loyal representatives on the team, only four women ultimately were included in a team of 21. Abdullah and Ghani did not reach a governing compromise until late May. Since then, the two leaders and their allies have repeatedly disagreed on appointments of officials and delineation of authority, reminding Afghans of the disputes that plagued the power-sharing government of 2014-2019. 

This deadlock coincided with the spread of COVID-19 across Afghanistan. The virus appears initially to have been transmitted primarily by migrant workers returning from the global hot-spot of Iran. The Afghan government struggled to check what became an unfettered spread. In August, health officials announced that random sampling – actual testing was minimal – suggested that the virus had infected more than 50 per cent of Kabul residents and over 30 per cent of the national population. Lack of reporting made it impossible to measure the death toll with any accuracy. The severe economic impact of lockdowns, however, was evident within weeks, leading many Afghans – including many officials – to ignore restrictions in most of the country outside Kabul. The Taliban publicised a number of COVID-19 initiatives in areas under their control, but many of these reportedly lacked enforcement or follow-up. The group continued to reject international calls for a ceasefire, even in the name of a “humanitarian pause” to enhance the public health response.

By the start of intra-Afghan talks in September, high-level sources told Crisis Group that the Afghan government was considering arming and funding new networks of militias across the country, outside the security forces’ hierarchy and only loosely controlled by the Afghan intelligence agency. Such reports, which have circulated widely among Afghans, amplify fears many already have about the potential impact of peace talks on human rights: not only could talks herald a return to political power of the Taliban, whose abuses many Afghans recall all too well, but they might also lead to the proliferation of government-affiliated militias, who have their own terrible track record. Fears of predation by armed groups of all stripes are hardly new – the EU Council addressed them in its May conclusions. But they have grown amid increasing unclaimed attacks on activists, the U.S.’s announcement of further troop drawdowns and political infighting in Kabul that some worry could create space for extrajudicial action by the security forces. 

Amid these many concerns, the first days of talks between the Taliban and the government-appointed negotiating team already give a taste of the hurdles that lie ahead. While negotiating the rules and procedures to govern the talks, the two sides tangled over what Islamic legal interpretation should be used to mediate future dis­agreements (the government team insisted on acknowledging Shia Islam and non-Muslim minorities’ existence in the framework of the talks, which the Taliban have rejected). The Taliban have yet to fully articulate what they believe a future Afghan state should look like, as Crisis Group has noted. It is far from clear that the Taliban’s vision will be acceptable to other parties and the many Afghans who fear the Taliban may wish to curtail rights and freedoms. What the insurgents have made clear is their stance on a ceasefire. They reject any discussion of a lasting and comprehensive one until, as their spokesperson said, “the root causes of the war” – ambiguous language that could mean anything from the West’s influence, to the exclusion of parts of population from power, to the abuses of government-allied strongmen – are addressed. With current levels of violence having climbed throughout 2020, this may be the most immediate potentially destabilising factor as talks progress.

A Role for the EU and Its Member States

As the intra-Afghan talks proceed, the EU can exert a positive influence. First, it should expand its support for civil society. Given Afghanistan’s contentious politics and its weak formal institutions, civil society's participation in the peace process will be vital to ensure the representation of popular interests and preferences. The EU has already affirmed its commitment to the protection of human and women’s rights and encouraged strong representation of women in intra-Afghan talks, but it should promote efforts that go beyond the structure of formal negotiations to lay grassroots groundwork for lasting peace. Afghanistan’s National Action Plan for implementing UN Security Council Resolution 1325 on Women, Peace and Security is regarded by experts as a “top-down” approach, which should be balanced by EU support to local initiatives such as local councils that advocate for peace. This approach could involve greater cooperation with the UN mission in Afghanistan, with its infrastructure and networks of field offices capable of extending peacebuilding’s reach. The EU should review and report on earlier civil society and development efforts in Afghanistan to support peacebuilding, some of them initiated more than a decade ago, to identify effective initiatives.

Secondly, the EU can help steady the Afghan government’s negotiation approach by offering its good offices to ensure a smoother, more streamlined dialogue to implement the political compromise between President Ghani and Abdullah. Disputes between Ghani and opposition leaders have already hampered governance and they will almost certainly bleed over into the negotiating team’s internal deliberations during talks. The peace process cannot succeed without genuine inclusion of a broad range of political elites in both the talks and the tasks of governance while negotiations are ongoing. Moreover, the political wrangling among elites has reportedly hamstrung civil society efforts to engage with the peace talks: different political factions are now competing for authority over every aspect of the process, which could have the effect of impeding civil society participation. By ensuring that Ghani and Abdullah continue to communicate on and implement their power-sharing commitments, the EU can help mend relations that in turn will improve the negotiators’ effectiveness.

The EU should seek to ensure that member states deliver a unified message.

The EU should seek to ensure that member states deliver a unified message. As the EU stated in its May conclusions, it can use the prospect of financial assistance to and economic engagement with a future government to nudge negotiations forward. But that leverage is only as strong as member states’ unity. Since issuing those May conclusions, European governments have diverged in their reactions to prisoner exchanges, and uncertainty lingers about their views on a major planned donor conference in Geneva. Several European diplomats told Crisis Group that although public unity on Afghanistan policy has been maintained, member states’ own diplomatic engagements have softened or strayed from the common line.

The EU’s influence over the Afghan peace process, and any outcome that may result, depends in large part on whether Afghan parties – including the Taliban – perceive it as a fair interlocutor. Almost any successful settlement will include the Taliban’s re-entry into Afghanistan’s political system. The EU’s current conditions, in particular its explicit rejection of the Taliban’s concept of an Islamic Emirate and its several public disapprovals of Taliban actions, without similar recognition of the Afghan government’s stalling ahead of talks, have been characterised by the Taliban as interference in Afghanistan’s sovereignty. As talks proceed, the EU and European leaders should make extra effort to appear to be more open to a greater Taliban role.

Most importantly, the EU and member states should commit to continue aid and development support to the Afghan government. They should do so before the end of 2020, in spite of the uncertainties surrounding the peace process and U.S. Afghanistan policy. They could qualify such reassurances and align them with EU principles by making clear that aid would be subject to re-evaluation in the event of changes to the government as part of a settlement, as the EU did in its May Council conclusions. This pledge would be the greatest possible show of support for the Afghan government as it negotiates an end to the war, and it would demonstrate to the Taliban that Afghanistan’s international partners remain invested in the post-2004 constitutional order and the gains it has won. It would be another incentive for both sides to reach an agreement.