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Sri Lanka’s President Maithripala Sirisena waits to address the United Nations General Assembly in the Manhattan borough of New York, U.S. September 21, 2016 REUTERS/Eduardo Munozala
Report 286 / Asia

Sri Lanka’s Transition to Nowhere

Fragile hopes for lasting peace and cooperation across party and ethnic lines are imperilled. To avoid leaders of the corrupt and violent former regime taking back control of the country, President Sirisena’s two-year-old “unity government” should put aside short-term calculations and return to reform.

Executive Summary

Two years into President Maithripala Sirisena’s term, Sri Lanka’s fragile hopes for lasting peace and cooperation across party and ethnic lines are imperilled. Despite significant achievements in the coalition government’s first nine months, progress on most of its reform agenda has slowed to a crawl or been reversed. As social tensions rise and the coalition slowly fractures, it is unclear whether it can push its signature new constitution through parliament and to a national referendum. Neither the president nor prime minister has made a serious attempt to win support for a more inclusive polity or to reform the national security state to tackle the institutionalised impunity that has fed ethnic unrest and harmed all communities. To protect democratic gains, enable lasting reforms and reduce risks of social and political conflict, the “unity government” should put aside short-term party and individual political calculations and return to a politics of reform and openness.

Ambitious promises to improve the economy, eliminate corruption, restore rule of law, address the legacy of war and write a new constitution remain largely unrealised. Confidence in the government’s reform will has been dented by lack of prosecutions in alleged corruption and political murder cases in the time of ex-President Mahinda Rajapaksa and by allegations of major corruption on its own watch. As the government struggles with large budget deficits and dangerously high debt, hopes for improved living standards have been frustrated, further eroding trust in it and strengthening the appeal of the Rajapaksa-led opposition.

Sirisena is locked in a battle with Rajapaksa for control of their Sri Lankan Freedom Party (SLFP) and hemmed in by the party’s traditional nationalism. SLFP ministers were never enthusiastic about being the junior partner in a unity government with their long-time rival, the United National Party (UNP), and are unhappy with what many see as UNP arrogance and Prime Minister Ranil Wickremesinghe’s less-than-consultative style. Afraid of being outflanked by Rajapaksa’s nationalism, the Sirisena SLFP wing resists key governance and reconciliation promises, even as this weakens support from constituencies that brought Sirisena to power: Tamils, Muslims and Sinhalese dismayed by corruption, abuse of power and high cost of living under Rajapaksa.

Torture of detainees remains routine, and the draconian Prevention of Terrorism Act has yet to be replaced, as promised.

Preoccupied with appearing patriotic and worried about dissent and Rajapaksa loyalists in uniform, the government has done little to reform the national security state or reduce the military’s considerable autonomy. It continues to drag its feet on impunity for human rights violations and abuses of power. Torture of detainees remains routine, and the draconian Prevention of Terrorism Act has yet to be replaced, as promised.

Tamils in the north and east were assured of confidence building measures that require major changes in the security forces’ role. Yet, the military resists returning additional occupied land to its owners in these areas and continues to run shops and hotels and build Buddha statues in Tamil and Muslim communities. Failure to reduce the military footprint has led to a campaign of protests by Tamils in the north that is weakening support for the Tamil National Alliance (TNA), the main Tamil party cooperating closely with the ruling coalition.

Government plans for transitional justice – which would inevitably reveal more about atrocities by the popular, powerful military – have largely not materialised. President Sirisena has prevented the Office on Missing Persons from operating since parliament approved it in August 2016. Mechanisms promised in 2015 are also increasingly in doubt, though the UN Human Rights Council has given the government two more years to make good on commitments. Due to the government’s failure to explain the connection between transitional justice and rule-of-law reforms, many Sinhalese view justice for war-era abuses as a pro-Tamil, anti-military demand, rather than part of a program to protect all communities’ rights.

The government’s fate thus increasingly depends on that of the new constitution. The drafting process, which until late 2016 had been proceeding quietly, now hangs in the balance. Pro-Sirisena SLFP ministers oppose any changes requiring a referendum, which would rule out key reforms, including compromises reached with the Tamil National Alliance to strengthen provincial devolution instead of the federalism they had favoured. With no sustained narrative from the president or prime minister in favour of devolution, politics has been dominated by Rajapaksa-aligned Sinhala nationalists, who present even modest changes as existential threats to the nation’s Sinhala and Buddhist character. The government is on the defensive, denying that it is weakening Buddhism and supporting separatism.

To salvage the chance to address fundamental sources of conflict and instability, the government needs to return to its original good governance and reconciliation agenda. Sirisena and Wickremesinghe must reach workable compromises on key issues: economic reform that shares the pain of change equitably and renewed anti-corruption, anti-impunity drives that prioritise a limited number of significant criminal cases implicating both major parties. To achieve a deal on the constitution that includes strengthened devolution, Sirisena must speak forcefully and lead a campaign that explains the reform package’s benefits for all communities. Renewing transitional justice hopes requires rapid launch of the Office on Missing Persons and faster progress on reducing the military footprint in the north and east. Packaged as part of rule-of-law reforms that include prosecuting alleged corruption and political crimes under the Rajapaksas, transitional justice could yet gain support across communities.

But time is running out. Leaders in both parties should not discount a Rajapaksa return. For their own survival and to deliver on at least some of their big promises, they should reject chauvinistic politics and daily bickering and invest their political capital in promoting an inclusive vision and more accountable polity that can mitigate the risk of new conflict.

Recommendations

To restore momentum for democratic reforms sustainable peace requires

To the Government of Sri Lanka:

  1. Redouble efforts to draft a new constitution that respects the rights of all citizens and communities equally, backed by a public campaign, led by the president, to win support in a referendum.
     
  2. Restore civilian authority and build confidence in the north and east by:
     
    1. expediting and making more transparent the return of military-occupied land to its owners;
       
    2. ending military involvement in farms and shops that harm local businesses;
       
    3. ending military involvement in construction of Buddha statues in Tamil and Muslim areas; and
       
    4. ceasing intimidation and surveillance of lawful political activities.
       
  3. Re-energise the process of addressing the war’s legacy by:
    1. constituting immediately the Office of Missing Persons, with an independent, experienced staff and a significant role for victims’ families; and
       
    2. acknowledging the Consultations Task Force on Reconciliation Mechanisms’ report and using its recommendations to develop a public roadmap for full implementation of the UN Human Rights Council resolution.
       
  4. Address widespread impunity and restore rule of law by repealing the Prevention of Terrorism Act and ensuring any replacement respects essential rights; and investigating alleged corruption and emblematic human rights cases, including:
     
    1. the February 2015 Treasury Bond issue;
       
    2. the series of cases implicating alleged military intelligence death squads in the murder and abduction of journalists and students; and
       
    3. the 2006 massacres of aid workers in Mutur and students in Trincomalee.
       
  5. Establish and empower a high-level United National Party-Sri Lankan Freedom Party team to develop and oversee a consensus policy on economic reforms and how to share resulting short-term hardships more equitably.

To International Financial Institutions, Development Agencies and Donor Countries:

  1. Explore with the government ways to support the economy without demanding disruptive reforms that could trigger social conflict.

Colombo/Brussels, 16 May 2017

I. Introduction

In January 2015, the shock electoral defeat of President Mahinda Rajapaksa by his former ally, Maithripala Sirisena, rescued Sri Lanka from a slide into increasingly harsh nationalist authoritarianism. The victory of a broad coalition representing Sinhalese, Tamils and Muslims gave hope that the country could address its longstanding political challenges: remedying the 60-year failure to grant Tamils a fair share of power on the Sinhala-majority island, and restoring for all citizens the rule of law, damaged by decades of politicisation, bitter ethnic bias and impunity for grave abuses committed during and after the civil war with the Tamil Tigers.

The democratic benefits from the defeat of President Rajapaksa and the removal of his family and supporters from key government positions remain tangible. Sri Lanka’s political dysfunctions began long before the Rajapaksas took power, however, and remain daunting.[fn]For earlier Crisis Group analysis of Sirisena and the unity government, see Asia Reports N°s 278, Sri Lanka: Jumpstarting the Reform ProcessSri Lanka: Jumpstarting the Reform Process, 18 May 2016; and 272, Sri Lanka Between Elections, 12 August 2015; on the Rajapaksa era, see N°s 253, Sri Lanka’s Potemkin Peace: Democracy under Fire, 13 November 2013; 243, Sri Lanka’s Authoritarian Turn: The Need for International Action, 20 February 2013; and 209, Reconciliation in Sri Lanka: Harder than Ever, 18 July 2011; for the politics of the major communities, see N°s 239, Sri Lanka: Tamil Politics and the Quest for a Political Solution, 20 November 2012; 141, Sri Lanka: Sinhala Nationalism and the Elusive Southern Consensus, 7 November 2007; and 134, Sri Lanka’s Muslims: Caught in the Crossfire, 29 May 2007; for background on impunity and the judiciary, see N°s 172, Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights, 30 June 2009; and 135, Sri Lanka’s Human Rights Crisis, 14 June 2007.Hide Footnote Despite positive changes and promises of constitutional changes to come, there has been no substantial, sustainable progress on addressing the two biggest political challenges:

  • Creation of independent institutions capable of upholding rule of law and a concomitant reduction in the power of the national security state and military that grew dangerously under the Rajapaksas. Limited progress has depended on the commitment of a few key politicians. Recent developments, including actions by the president and the growing dominance of party-political calculations, have deepened doubts about the leadership’s ability and willingness to strengthen the rule of law.
     
  • Beyond generic statements in support of “reconciliation” and “addressing the causes of the war”, government leaders have done little to change the underlying ethno-nationalist dynamics that sustained the quarter-century of war. Promises of a new constitution have not been supported by articulation of a pluralist vision of the state as an alternative to one in which entrenched Sinhala Buddhist nationalism does much to alienate Tamils and Muslims.

Until significant progress is made on both sets of issues there is little hope of lasting reconciliation. This report examines the growing difficulties faced by President Sirisena and his national unity government across the interlinked areas that need reform. It is based on interviews with government officials, politicians, lawyers, diplomats, businesspeople and journalists, conducted in Colombo, Jaffna, London, and Geneva and by email and telephone over the past half year.

II. The Politics of Reform

A. A Divided “Unity” Government

Sirisena’s first nine months saw real progress.[fn]See Crisis Group Report, Sri Lanka Between Elections, op. cit.Hide Footnote His electoral coalition, anchored around the United National Party (UNP) and strengthened by much of his – and the Rajapaksa family’s – Sri Lanka Freedom Party (SLFP), had the two-thirds parliamentary majority needed to approve the nineteenth constitutional amendment in April 2015. That fulfilled an electoral pledge to reduce the presidency’s enormous powers and restore the independence of oversight commissions for the police, judiciary and human rights.[fn]The nineteenth amendment in effect annulled Rajapaksa’s 2010 eighteenth amendment, which abolished presidential term limits and gave the president control over police, judiciary, civil service and human rights commissions. Fully abolishing the executive presidency, as Sirisena and his coalition also promised and replacing it by a “Westminster” parliamentary majority arrangement requires more extensive constitutional change and final approval by referendum. On the nineteenth amendment, see Crisis Group Report, Sri Lanka Between Elections, op. cit., pp. 8-9.Hide Footnote The government ended censorship and intimidation of the media and partly scaled back the heavy military presence in Tamil-majority areas in the north and east. The military was persuaded to return, reluctantly, some of the huge swathes of land it had seized there in and after the war.

The presidential election was followed in August 2015 by the narrow victory in parliamentary elections of a UNP-led coalition over a grouping led by former President Rajapaksa and including most of Sirisena’s own SLFP. That allowed Sirisena to convince the fractured SLFP to form an unprecedented national unity government with its often bitter UNP rival, headed by Prime Minister Ranil Wickremesinghe. The grand coalition affirmed Sirisena’s and the UNP’s ambitious agenda to revive the economy, investigate alleged corruption under the previous regime, promote reconciliation and, most importantly, draft a new constitution in parliament.[fn]The pro-business, right-wing UNP and more statist centre-left SLFP have alternated in power since 1956, generally allied with smaller ethnic or leftist parties. While some in the unity government appear committed to the reforms its majority enables, it is mainly a marriage of convenience: a more stable UNP grip, portfolios and patronage for the pro-Sirisena section of the SLFP.Hide Footnote The main aims of constitutional change were to further reduce presidential powers, adopt a new electoral system and expand the powers devolved to provinces so as to address longstanding Tamil demands for autonomy in the north and east.

Keen to reduce international pressure over human rights, the new government co-sponsored a UN Human Rights Council (UNHRC) resolution in September 2015 committing it to a package of transitional justice measures to address the legacy of the 30-year war with the separatist Tamil Tigers, including the horrific final months in 2009, when tens of thousands were killed.[fn]For more on the war’s last months and allegations of grave violations of the laws of war by both sides, see Crisis Group Asia Report N°191, War Crimes in Sri Lanka, 17 May 2010. On the UNHRC resolution, see Crisis Group Report, Jumpstarting the Reform Process, op. cit., pp. 25-29.Hide Footnote Momentum slowed by mid-2016, however, and now seems stalled. Failing to deliver on good governance promises, particularly regarding corruption, and with few signs of the promised economic revival, the government is losing support from its main constituencies: Tamils, Muslims and liberal Sinhalese. This makes it vulnerable to the resurgent populist, majoritarian opposition politics led by Mahinda Rajapaksa.

Divisions inside and outside the government have led to a focus on manoeuvres for political survival rather than pursuit of reforms and maintenance of unity across party and ethnic lines. It is increasingly clear that the “unity” government was principally a creation of the UNP and some of those close to Sirisena that a meaningful part of the SLFP was persuaded to support in exchange for portfolios.

The split in the SLFP weakened Rajapaksa’s hold over Sinhala voters and was the key to Sirisena’s election but is now the cause of political paralysis. Sirisena is consumed with managing factional rivalries and policy divergences. Having done little to reshape the party around a less exclusionary, nationalist vision, he and his SLFP ministers are increasingly concerned with securing its traditional nationalist core, flirting with the Sinhala chauvinism against which they had campaigned.[fn]Sirisena’s pledges to defend the military and criticism of NGOs increasingly recall Rajapaksa’s presidential speeches. “Sri Lanka risks censure as president falters on war legacy”, Agence France-Presse (AFP), 10 March 2017.Hide Footnote

[T]he Rajapaksas are exciting their base, attacking constitutional reform and transitional justice as capitulations to anti-Sinhala and foreign forces.

Ex-President Rajapaksa, whose charisma and civil war success have kept him popular with many Sinhalese, retains the loyalty of most of the SLFP, particularly local party activists, most of whom have never accepted the unity government. His attempt to regain control of the party benefits from the dissatisfaction of SLFP ministers who joined the government but now chafe at what they feel is UNP arrogance and the prime minister’s unilateral policymaking. Looming large with them are local elections, originally due in 2015 but repeatedly postponed for fear the Sirisena-led SLFP might trail not only the UNP, but also Rajapaksa supporters, who operate in parliament as the “joint opposition” and are expected to form a new party. Three provincial council polls, with the same risk for Sirisena and his SLFP wing, are also scheduled in 2017.[fn]North Central, Sabaragamuwa and Eastern Provincial Council terms end in 2017. Unlike local government elections, the government appears to have no way of postponing them. Crisis Group interviews, constitutional lawyers, Colombo, March 2017.Hide Footnote The SLFP is a resentful junior coalition partner, whose ministers see uniting their own party – thus making peace with Rajapaksa – as the best way to regain control of government.

The Rajapaksa clan would need to overcome significant hurdles to return to power before 2020, the earliest that parliamentary elections can be called.[fn]Unable to be president again due to the nineteenth amendment, Mahinda’s only route to power is as Sirisena-appointed prime minister. Sirisena would need to abandon the unity government and constitutional reform, which requires a two-thirds majority and the Rajapaksas strongly oppose. It would also require an unlikely UNP split, with eighteen deputies joining the 95 SLFP and allied deputies in the 225-seat parliament to back a Rajapaksa-led SLFP government.Hide Footnote A more likely scenario is deepening coalition dysfunction, as the SLFP bides its time and prepares to regroup for both parliamentary and presidential elections that year, with Sirisena at growing risk of losing the SLFP presidential nomination to Mahinda’s brother, ex-Defence Secretary Gotabaya Rajapaksa.[fn]Gotabaya, though never elected, is increasingly seen as an SLFP unifier, as presidential candidate or Sirisena’s prime minister. He is thought to have support in the Sinhala middle class, due to his war role and reputation as a no-nonsense administrator. Liberals, governance advocates and minorities, who believe him responsible for human rights abuses, widely fear him. Crisis Group interviews, politicians, journalists, Colombo, March 2017; also, “I have self-confidence to perform the duties of Presidency well: Gota”, Daily Mirror (Sri Lanka), 19 October 2016.Hide Footnote Meanwhile, the Rajapaksas are exciting their base, attacking constitutional reform and transitional justice as capitulations to anti-Sinhala and foreign forces.[fn]The Rajapaksa-led opposition’s 2017 May Day rally was one of the largest in Sri Lanka’s recent history. The national association of professionals, Viyath Maga (Right Way), aligned with Gotabaya Rajapaksa, is of growing importance.Hide Footnote Government ministers and others have said the family funds militant Buddhist monks and others to destabilise the ruling coalition, supported by pro-Rajapaksa elements in the military. Many civil servants are hedging their bets, concerned that the government is weak and fearful of retribution, should Mahinda or one of his brothers return to power.[fn]Crisis Group interviews, Colombo, March 2017.Hide Footnote

B. The Economy: Danger Signs Grow

Inheriting large budget deficits and dangerously high debt, the government has been unable to deliver on election promises of jobs and improved living standards. Prolonged drought, which raised food prices and increased household debt levels, now threatens serious social and economic disruptions. [fn]The budget deficit fell to 5.6 per cent of GDP in 2016, but total public debt reached 76 per cent of GDP at the end of 2015, and the government must repay some $4 billion over the next eighteen months. Marwaan Macan-Markar, “Sri Lanka struggles to build foreign reserves”, Nikkei Asian Review, 3 April 2017. “Drought may leave 80,000 Sri Lankans in need of ‘life-saving’ food aid”, Integrated Regional Information Networks (IRIN), 6 March 2017. The drought has exacerbated inflation and could cost the economy $1 billion. Crisis Group interview, UN official, March 2017; “Sri Lanka’s national inflation soars to 8.6-pct in March”, Economy Next (www.economynext.com), 21 April 2017.Hide Footnote Facing a balance of payments crisis and with few other hard-currency sources, the government has been forced to do a U-turn on its campaign pledges and cancel what it had called wasteful, exploitive Chinese-funded infrastructure projects. A government plan to lease the port and much land for a Chinese-controlled industrial zone in Rajapaksa’s home Hambantota district was met with violent protests in January 2017, organised by Rajapaksa supporters and causing delays in finalising the long-term lease, which would pay off $1.1 billion of the $8 billion owed to the Chinese.[fn]“Clashes erupt as Govt. launches southern development projects”, The Sunday Times (Sri Lanka), 8 January 2017. While Rajapaksa bears significant responsibility for the economic woes, the impact of heavy reliance on Chinese-financed infrastructure projects was not felt while he was in office. This allows him to criticise Sirisena’s concessions to Chinese loan repayment demands many Sri Lankans feel are humiliating. The port deal has also provoked Indian and U.S. concerns about potential Chinese military use. Crisis Group interviews, diplomats, March 2017.Hide Footnote

Despite the prime minister’s repeated attempts to articulate an attractive export- and foreign-investment-oriented economic strategy, officials have issued multiple, often conflicting policy statements. Disagreements between the UNP and SLFP about the costs of International Monetary Fund (IMF)-supported economic restructuring, compounded by public anxiety at the absence of visible development projects and opposition criticism, have led Sirisena to reverse or modify numerous UNP tax and liberalisation proposals. The resulting policy uncertainty has contributed to lower than expected foreign direct investment.[fn]In June 2016, the IMF and Sri Lanka agreed on a three-year “Extended Funds Facility” with $1.5 billion support for reforms. In March, the IMF reported mixed results in implementation, with better tax collection slow to materialise. “IMF Staff Concludes Visit to Sri Lanka to Discuss Progress of Economic Reform Program”, IMF, 7 March 2017. A draft tax law prepared with IMF help has been criticised. “New tax law: Capitulating to the IMF”, The Sunday Times (Sri Lanka), 2 April 2017.Hide Footnote Any benefits from the broad reforms encouraged by the IMF and investors would appear only over years, but their costs would be felt now, in higher taxes, lower subsidies, budget cuts and trade and investment policies giving foreign companies and governments politically controversial privileges.

[T]he social costs of abrupt economic liberalisation undermined support for a UNP government and contributed to the collapse of the peace process.

The government and global financial institutions and development agencies should explore ways to support the economy while mitigating these and other potential sources of social conflict. Otherwise, the government risks a repeat of 2002-2004, when the social costs of abrupt economic liberalisation undermined support for a UNP government and contributed to the collapse of the peace process with the Tamil Tigers, paving the way for Mahinda Rajapaksa’s 2005 election as president on a Sinhala nationalist, anti-ceasefire platform.[fn]Sunil Bastian, “Politics of market reforms and the UNF-led negotiations”, in Jonathan Goodhand et al. (eds.), Conflict and Peacebuilding in Sri Lanka: Caught in the Peace Trap? (Abingdon, 2011); and, for an overview of the politics of economic reforms, Bastian, “Understanding the current regime”, Groundviews (groundviews.org), 4 January 2017.Hide Footnote Sri Lanka is caught between economic paradigms whose interaction has spurred conflict in the past: liberalisation that further transforms the economy according to the needs of global and regional capital, with likelihood of nationalist resistance and increased inequality; and statist resistance to privatisation or trimming of an oversized state many citizens still see as the preferred employer.

III. The Politics of Investigations and the National Security State

For the unity government, fulfilling election pledges about corruption and rule of law is essential to retaining support needed to achieve its agenda’s more controversial aspects: a new constitution with greater powers for provinces and dealing with the war legacy. With little to show for two years of investigations, however, many supporters of reform now view the government’s yahapaalanaya (good governance) claims derisively.[fn]“Yahapalanaya is no joke: President”, Daily Mirror (Sri Lanka), 9 December 2016.Hide Footnote

A. Sirisena’s Bombshell Speech

On 12 October 2016, in a speech before military veterans and their families, President Sirisena angrily denounced his own government’s investigations into alleged corruption, saying those undertaken by the police and the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) were politically motivated.[fn]Sirisena also criticised long detention of military personnel in murder cases and expressed displeasure at ex-Defence Secretary Gotabaya Rajapaksa and retired navy commanders being taken to court on corruption charges and his not being informed before charges were filed. “President warns investigative arms: Don’t work to political agendas”, Daily News, 13 October 2016; “Sri Lanka president intervenes on behalf of accused military men”, Journalists for Democracy in Sri Lanka (www.jdslanka.org), 14 October 2016.Hide Footnote This was met with shock and anger by civil society activists and sections of the public that had backed his good governance agenda. By criticising CIABOC and the Financial Crimes Investigation Division of the police, demanding they inform him in advance of filing charges in major cases and appearing to try to protect military suspects, he was seen as undermining the independence of investigations.[fn]“President slams Bribery Commission for ‘hauling’ Gota and navy chiefs to court”, Daily FT, 13 October 2016.Hide Footnote

Four days later, CIABOC Director General Dilrukshi Wickramasinghe humiliatingly resigned.[fn]Wickremesinghe did not explain her resignation. A senior lawyer in the attorney general’s department known as a determined investigator willing to pursue hard cases, she is also a close friend of the prime minister. “Crisis continues: Bribery Commission Director General quits”, Daily FT, 18 October 2016; Crisis Group interviews, lawyers, Colombo, November 2016.Hide Footnote In subsequent weeks, courts released on bail all remaining military intelligence personnel held on suspicion of involvement in murder and abduction cases – including the January 2009 murder of editor Lasantha Wickrematunge and the 2010 abduction of cartoonist Prageeth Ekneligoda. The speech and the releases cast a cloud over ongoing investigations and deepened doubts about government willingness to pursue cases against the security forces and associates of the former regime in the face of military resistance.[fn]“Army not helping probe – ASG”, Ceylon Today, 14 October 2016; “Political interference suspected in Prageeth’s case”, Sunday Leader, 20 November 2016. The murder of Wickrematunge, known for articles exposing alleged government corruption, and the abduction and presumed murder of Ekneligoda, both Sinhalese, were two of many attacks on media people in the Rajapaksa era. They received wide international notice. At his death, Wickrematunge was involved in a court battle with Gotabaya Rajapaksa, who sued his paper after articles alleged he accepted kickbacks in the purchase of MiG fighter jets. “MiG deal: court issues warrant through Interpol to arrest Gota’s first cousin Weeratunga”, Colombo Telegraph, 20 October 2016.Hide Footnote

Those doubts remain, even after new arrests in the Wickrematunge case and in cases related to other attacks on journalists that appear to implicate the highest levels of the Rajapaksa-era defence establishment. On 20 March, police investigators presented court testimony from ex-army commander Sarath Fonseka alleging Gotabaya Rajapaksa oversaw a military intelligence “death squad” responsible for attacks on journalists, including Wickrematunge’s murder. Rajapaksa denied this and said Fonseka had been responsible.[fn]In February 2017, the police Criminal Investigation Department arrested military intelligence officers allegedly responsible for attacks on journalists, including Wickrematunge’s murder. “Sri Lanka ex-leader’s brother ‘led death squad’”, AFP, 20 March 2017; “Gotabaya denies role in killings”, The Hindu, 21 March 2017; “‘Whodunnit’ high noon duel between Gota and Fonseka”, The Sunday Times (Sri Lanka), 2 April 2017. Fonseka led the military’s final offensive against the Tamil Tigers in 2009 but broke with the Rajapaksas and challenged Mahinda for president in 2010. Following his defeat, Fonseka was convicted of corruption and other charges and stripped of his rank. Sirisena named him field marshal in 2015 and minister in 2016 after his release in May 2012.Hide Footnote On 29 March, in a speech to a military audience, President Sirisena vowed that he would protect “war heroes” from prosecution but not security personnel “who killed journalists, sportsmen or others”.[fn]“Sri Lanka’s leader backs arrests of ‘official’ killers”, AFP, 29 March 2017.Hide Footnote

Despite the progress investigators appear to have made and Sirisena’s stated commitment not to protect military killers, his earlier intervention showed two main prosecution obstacles: party-political tensions in the coalition and a desire to placate and be seen to respect the military and the national security state.

B. Party Politics Intervene

Many Rajapaksa-era criminal cases are complex, involving hard-to-unravel financial transactions, but the lack of high-profile indictments appears at least partly a result of partisan efforts to protect members of the old regime. Sirisena’s intervention responded to and deepened tensions within the government over differing approaches to cases. Responding to widespread criticism of his October 2016 speech, Sirisena complained that SLFP ministers were being investigated for relatively minor improprieties, while investigations into larger fraud and other crimes were being obstructed by unnamed sections of his government.[fn]This includes at least one minister, known as close to Sirisena, charged with misusing state vehicles. “Crisis continues: bribery commission director general quits”, Daily FT, 18 October 2016.Hide Footnote He alleged in particular that certain cases involving accusations against Gotabaya Rajapaksa and the investigation into the 2013 murder of rugby player Wasim Thajudeen were being ignored or blocked.[fn]“President concerned – probe on Dubai account has ceased, Thajudeen case has gone under”, The Sunday Times (Sri Lanka), 6 November 2016. Gotabaya Rajapaksa has rejected all allegations of wrongdoing. Investigations into Thajudeen’s murder reportedly implicated members of the Rajapaksa family, who denied any involvement. Greg Bearup, “Phantoms of Mahinda Rajapaksa and Sri Lanka’s reign of terror”, The Australian, 26 November 2016.Hide Footnote

The lack of decisive response to alleged irregularities in a February 2015 treasury bond issue has particularly angered Sirisena and SLFP ministers and become a focus of opposition attacks. A 27 October 2016 report by the parliamentary Committee on Public Enterprises stated that the ex-Central Bank governor, a friend of the prime minister who appointed him, was directly responsible for a possibly illegal deal believed to have lost the government millions of dollars. After SLFP and opposition demands for criminal investigations, Sirisena appointed a commission of inquiry in January to investigate the alleged scam further. Public hearings regularly offer new detail that keeps the controversy, and coalition divisions, alive.[fn]Excess money earned in the deal is widely believed to have gone to the UNP to pay election debts. The former Central Bank Governor, Arjuna Mahendran, and the prime minister deny any wrongdoing. “Mahendran hits back”, Daily Mirror (Sri Lanka), 7 February 2017. While the prime minister publicly welcomed the report, it was released only after strenuous resistance by the committee’s UNP members, who challenged its conclusions. Crisis Group interviews, politicians and activists, Colombo, November 2016. For more, see Crisis Group Report, Sri Lanka Between Elections, op. cit., p. 5; and “Sri Lanka panel questions central bank chief over bond sale”, Reuters, 21 February 2017.Hide Footnote

[T]he more time passes without prosecution of major corruption and political crimes, the more people will lose faith the government is different from its predecessors. The government would then have lost its most powerful asset.

Partisan interests also appear to be a key obstacle to investigations against Rajapaksa family members. The prime minister is widely seen as working to ensure they do not proceed too far, so as to keep the Rajapaksas politically alive and the SLFP divided and weakened.[fn]Crisis Group interviews, journalists, politicians, lawyers, Colombo, March 2017. Critics of the UNP note that the police are under the law and order ministry, led by Sagala Ratnayaka, a UNP minister and confidante of the prime minister. Crisis Group interviews, Colombo, November 2016.Hide Footnote Others more sympathetic to the UNP argue that the president and SLFP ministers are interested in going easy on the Rajapaksas, in exchange for a reunified, Sirisena-led SLFP.[fn]Crisis Group interviews, politicians, diplomats, Colombo, March 2017. In a 24 January parliament speech, opposition and Tamil National Alliance leader R. Sampanthan accused the main parties of protecting each other. “UNP-SLFP hand in glove on corruption: Opposition Leader”, Daily FT, 26 January 2017.Hide Footnote Senior government officials continue to promise early breakthroughs.[fn]Crisis Group interview, Colombo, March 2017; “Mangala says Lasantha and Prageeth investigations moving forward despite delays”, Colombo Telegraph, 22 January 2017.Hide Footnote Regardless of the causes, the more time passes without prosecution of major corruption and political crimes, the more people will lose faith the government is different from its predecessors. The government would then have lost its most powerful asset.

C. Fear and Resistance of the Military and Security State

Sirisena’s corruption intervention was one of a series of speeches praising military audiences’ heroism and promising to preserve their honour and protect national security.[fn]Explaining why he objected to Gotabaya and the former navy commanders being taken to court by CIABOC, Sirisena argued that “the public perception should be understood when action is taken. We should not act against the will of the people”. “President concerned – probe on Dubai account has ceased, Thajudeen case has gone under”, The Sunday Times (Sri Lanka), 6 November 2016.Hide Footnote It was followed two weeks later by one that attacked NGOs, journalists and “traitors” for misusing their freedom to criticise his national security policies.[fn]“President slams some NGOs, media, traitorous forces”, Daily Mirror (Sri Lanka), 27 October 2016.Hide Footnote

Following its victory over the Tamil Tigers, the military is very popular among Sinhalese, a fact the Rajapaksas exploit, given their leadership roles at the end of the war. This helps explain why, as a well-placed political analyst said, “Sirisena has a soft spot for the military. He is giving them a big margin and is protecting them to a large extent …. He wants to keep them happy”.[fn]Crisis Group interview, Colombo, November 2016.Hide Footnote He and other officials appear both generally content with the military’s role in the security state and uncertain about the loyalty of at least some elements and reportedly fearful that a section of military intelligence, still aligned with Gotabaya, will be deployed in a pro-Rajapaksa destabilisation campaign.[fn]The Rajapaksas are alleged to use considerable money to fund protests, militant Buddhists and, possibly, rogue military intelligence-unit actions. Crisis Group interviews, journalists, government officials, advisers, Colombo, November 2016.Hide Footnote The government avoids policies the military is thought to oppose, rather than proactively countering a threat.

Sirisena’s 12 October speech reportedly was sparked by a report, later disproved, from the director of military intelligence, Suresh Salley, detailing allegedly growing opposition to government policies within the military.[fn]Crisis Group interviews, lawyers, diplomats, journalists, Colombo, November 2016.Hide Footnote His November decision to replace that director, widely believed a Gotabaya loyalist, followed sustained civil society calls for the removal, which grew louder after that speech.[fn]Many wondered why Sirisena had not removed Salley earlier, given his close links to Gotabaya. According to a government adviser, “Sirisena assumed Salley would follow orders. He generally assumes subordinates will follow his orders, despite this being proved wrong repeatedly in his attempt to win control of the SLFP”. Crisis Group interview, Colombo, November 2016.Hide Footnote

D. Bureaucratic and Political Resistance to Reform

In addition to military interference and non-cooperation with investigations in which military intelligence personnel are suspects, powerful bureaucrats and politicians fight to keep the security state beyond the control of the judiciary and civilian leadership.[fn]Some are Sinhala nationalists who believe a strong security state is needed to keep potential terrorists at bay; others may be concerned about being implicated in abuses that reforms could reveal. Crisis Group interviews, government officials, lawyers, Colombo, March 2017.Hide Footnote Key officials in the justice and defence ministries, police and attorney general’s office have taken positions or made statements that directly undermine efforts to reform the institutions responsible for decades of major human rights violations.[fn]In some of the cases below, protests, at times backed by diplomatic pressure, have helped mitigate the resistance, indicating the current government, unlike that of the Rajapaksas, is still open to persuasion from constituencies whose support it needs.Hide Footnote Among the most important instances of resistance:

  • Despite promises to citizens and the UN, the government has yet to repeal the draconian Prevention of Terrorism Act (PTA). A proposed replacement Counter-Terrorism Act (CTA) a military- and police-dominated committee drafted added clauses that increase the likelihood of state abuses.[fn]Security force officials and lawyers with the attorney general’s department reportedly vetoed a more human rights-friendly draft. Crisis Group interviews, lawyers, government officials, Colombo, November 2016.Hide Footnote Following outcry when it was leaked in October 2016 and eager to regain the European Union’s human rights-linked Generalised Scheme of Preferences Plus (GSP+) tariff relief, the government initially removed some of the most troubling bits.[fn]In January, the European Commission (EC) announced support for renewal of GSP+ trade benefits to Sri Lanka, which depend on effective implementation of 27 human rights, labour and environmental conventions. The EC revoked GSP+ privileges in 2010 for serious human rights failings. The EC stressed need for further progress on implementing the 27 conventions, in particular bringing anti-terrorism legislation in line. “Commission Proposes Enhanced Market Access for Sri Lanka as Reform Incentive”, EC press release, 11 January 2017. The European Parliament and Council had until 15 May to object to the EC “proposal” but neither did.Hide Footnote Nonetheless, the latest version would still give the state dangerously broad and ambiguous powers.[fn]The cabinet approved a new draft CTA on 25 April 2017, two days before the European Parliament voted down a resolution to block Sri Lanka gaining GSP+. The draft defines “terrorism-related offences” very broadly and authorises extended detention and broad powers of investigation without meaningful judicial oversight and potentially significant restrictions on suspects’ access to counsel. The draft has been widely condemned by rights activists, with the Tamil National Alliance criticising it in unusually strong terms. TNA press release, 4 May 2017.Hide Footnote Arrests under the old law have ceased, but some 125 people arrested under it are in prison or on bail awaiting trial, many for years.[fn]“PTA no longer operational – SCRM chief”, Daily FT, 3 March 2017. Crisis Group interviews, lawyers and activists, Colombo, March 2017.Hide Footnote
     
  • A draft revision of the Criminal Procedure Code released in October 2016 contained new restrictions on suspects’ access to a lawyer while in detention. The justice minister said the restrictions were necessary to prioritise victims’ rights. Following strong condemnation from lawyers and rights activists and worries the draft would not meet criteria for regaining GSP+, the prime minister said it would be amended. However, the version approved by the cabinet on 25 April contains provisions the Human Rights Commission of Sri Lanka earlier found “whittles down the rights of detainees in police custody to have unimpeded access to lawyers”.[fn]“Amendment to the Code of Criminal Procedure Act: HRCSL sets out its recommendation”, Colombo Telegraph, 16 March 2017. The government has been widely criticised for the secretive way in which it drafted the CTA and Criminal Procedure Code amendments, even refusing to share drafts with the Human Rights Commission, which is mandated to review such legislation. “Leaked version: Amendment to code of criminal procedure”, Groundviews, 27 April 2017.Hide Footnote
     
  • In December, the UN Committee Against Torture (UNCAT) issued a strongly critical report on the “routine” use of torture by the security sector and near complete lack of accountability for wartime and post-war human rights violations. Many of these concerns were echoed the next month in the UN Special Rapporteur on Torture’s report, which found a continuing “culture of torture” in the police. Both reports urged repeal of the Prevention of Terrorism Act.[fn]“Report of the Special Rapporteur on torture … on his mission to Sri Lanka”, 22 December 2016; “Concluding observations on the fifth periodic report of Sri Lanka”, UNCAT, 27 January 2017. The November UNCAT session in Geneva was a major embarrassment for the government following revelations its delegation included the former head of the Criminal Investigation Department (CID) of the police, which is credibly accused of torture and sexual violence. “UN Committee on Torture demands answers from DIG on Lankan delegation”, Daily FT, 17 November 2016.Hide Footnote
     
  • Both UN reports also recommended overhaul of the weak witness protection program, originally drafted by the Rajapaksa government, to ensure independence from the police and ability to protect victims and witnesses. There is no sign the government has reviewed or strengthened the law, as it committed to do in the 2015 Human Rights Council. The national protection authority established under the law includes officials against whom allegations of involvement in intimidation and cover-ups have been made.[fn]The Special Rapporteur’s report recommends the law be strengthened “to make the National Authority set up under the Act an independent and accountable agency not managed only by the police but subject to judicial oversight”. The witness protection and anti-torture responsibilities given to Deputy Solicitor General Yasantha Kodagoda have been widely criticised, given his efforts in Geneva to block UN investigations and alleged involvement, as documented by the International Independent Group of Eminent Persons, in undermining past human rights investigations, allegedly including by witness intimidation. “Putting the Wolf to Guard the Sheep: Sri Lanka’s Witness Protection Authority”, International Truth and Justice Project, February 2017.Hide Footnote

The government has taken some positive steps, but their impact will depend on the willingness of officials to comply with their legal obligations.

  • The Right to Information (RTI) Act parliament approved in June 2016 and in force since February gives potentially powerful tools to citizens to make authorities more transparent and accountable. The RTI Commission it established has shown itself to be proactive, and NGOs and individual citizens have filed important requests for information on land issues and missing persons.[fn]“Sri Lanka’s new information law puts corrupt officials in crosshairs”, Nikkei Asian Review, 27 February 2017.Hide Footnote For the act to be effective, the government will need to give adequate resources to the commission and officers in public bodies tasked with responding to requests.
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  • After May 2016 ratification, the cabinet approved in February a draft incorporating the international convention on enforced disappearances into domestic law. Criminalisation of disappearances, if parliament adopts the law, would be a significant step long sought by human rights defenders, but enforcement requires a fundamental shift in how the state relates to victims of abuses by its own personnel. As the above-cited UN reports make clear, a strong law (also incorporating an international convention) has not ended torture and has only rarely been used to prosecute alleged state perpetrators.[fn]According to UNCAT, op. cit., “only 17 cases of torture have been filed under the Convention against Torture Act since 2012 and only 2 have resulted in convictions, suggesting that only a small number of allegations of torture have actually been investigated”.Hide Footnote

E. Continued Impunity for Militant Monks

Despite election promises to crack down on anti-Muslim agitations, the government has not used laws criminalising hate speech and has sent mixed signals in response to renewed threats against Muslims and Tamils by militant Buddhist groups actively cultivated by the Rajapaksa government.[fn]The 2007 act incorporating the International Convention on Civil and Political Rights makes it a crime to “advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence”; offences are punishable by up to ten years imprisonment. This clause has been applied only once. Gehan Gunatileke, “Hate Speech in Sri Lanka: How a New Ban Could Perpetuate Impunity”, Oxford Human Rights Hub, 11 January 2016. On Rajapaksa government support for militant Buddhists, see Crisis Group Report, Sri Lanka’s Potemkin Peace, op. cit., pp. 27-30.Hide Footnote In November 2016, the leader of the best-known militant Buddhist group, Bodu Bala Sena (Buddhist Power Force, BBS), threatened violence against Colombo Muslims if a local Salafist activist who criticised it was not arrested.[fn]The activist, head of Sri Lanka Towheed Jamaat, was arrested in days, along with a Buddhist activist who had called for his murder. Dharisha Bastians, “More equal than others”, Daily FT, 24 November 2016.Hide Footnote On 19 November, BBS held its largest rally in over two years, denouncing the Muslim threat as it marched to the country’s holiest Buddhist temple in Kandy. This came in the wake of a widely circulated videotaped incident in which a prominent monk, Ampitiye Sumana, was seen abusing and threatening a Tamil civil servant in Batticaloa for resisting attempts to settle Sinhalese in the Tamil district. No action was taken against the monk.[fn]‘“You Tamil dog, I will kill you’ Buddhist Monk Tells Grama Sevaka in Batticaloa”, Colombo Telegraph, 12 November 2016.Hide Footnote

Rising tensions prompted the president to call an emergency security council meeting, at which he announced that anyone inciting racism would be arrested. Days later, Justice Minister Wijeyadasa Rajapakshe met with BBS leader Galagoda Atte Gnanasara and Sumana with the declared purpose of encouraging dialogue among communities.[fn]“Arrest all inciters, President orders”, Daily Mirror (Sri Lanka), 20 November 2016. The Office of National Unity and Reconciliation called for “the strictest action … against persons or groups who act to provoke disharmony … along ethnic and religious lines”. “Statement by ONUR on the Rise of Hate Speech in the Recent Past”, 25 November 2016. “Govt. to start dialogue among religious and ethnic groups”, Daily Mirror (Sri Lanka), 23 November 2016; “Justice Minister holds talks with BBS and Batticaloa monk”, Colombo Gazette, 21 December 2016.Hide Footnote On 22 December, Gnanasara was among the monks in attendance at a meeting Sirisena held on preserving Buddhist archaeological sites.

Unlike during the Rajapaksa regime, the police now intervene to keep the peace when communal tensions rise, and the government does not promote violence as a political instrument.[fn]A court order blocked a planned rally in Batticaloa on 3 December designed to link up with a march led by BBS leader Gnanasara. Police brought in armed reinforcements to control crowds led by Ampitiye Sumana, who was later charged with organising an unlawful assembly and released on bail. “Unruly Batticaloa monk summoned to court”, Ceylon News, 6 December 2016.Hide Footnote But appearing to treat Gnanasara and other militant monks as legitimate Sinhala Buddhist representatives has eroded faith among Muslims and those in other communities hoping to see an end to impunity and attacks on minorities and makes militant forms of nationalism seem acceptable.

IV. Transitional Justice Without a Transition

The security services’ successful resistance to investigations and legal reforms, combined with Sirisena’s pro-military statements, add to deep concerns about the government’s ability and willingness to pursue the transitional justice policies promised to the UN Human Rights Council in 2015.[fn]Crisis Group Report, Jumpstarting the Reforms Process, op. cit., pp. 24-29.Hide Footnote Having established none of the agreed institutions – offices on missing persons and reparations, a truth commission and a special court – the government negotiated a “technical roll over” resolution in March to give it more time to implement its initiatives.[fn]“Promoting reconciliation, accountability and human rights in Sri Lanka”, HRC 34/1, 24 March 2017. Many Tamil groups and some human rights activists criticised the two-year extension, which had no additional conditions. “Joint Appeal by Tamil Civil Society Organisations, Political Parties and Trade Unions”, March 2017.Hide Footnote

Unless there is a major change in the government’s approach, the extra time is unlikely to make a big difference. Transitional justice has always been the reform issue with the least backing in government and the Sinhala public, consequently the most dependent on international pressure. The government has done little to build greater support among Sinhalese and Muslims by making a case for the link between transitional justice and the rule-of-law/anti-impunity agenda that has significant backing in all three communities, or explaining the specific benefits of a transitional-justice program.[fn]“Opinion Poll on Constitutional Reform – Topline Report”, Centre for Policy Alternatives, April 2017. For arguments that in Sri Lanka anti-impunity and transitional justice measures need to be intertwined and would have backing among all communities, see Niran Anketell, “Forgetting the Past: A warning”, Daily Mirror (Sri Lanka), 22 March 2017; and Gehan Gunatilleke, “Confronting the Complexity of Loss”, Law and Society Trust, 2015.Hide Footnote By contrast, the Rajapaksa-led opposition has defined transitional justice for many Sinhalese as a pro-Tamil, anti-military agenda.

The lack of progress on establishing the mechanisms and making the rule-of-law reforms necessary for those mechanisms to function effectively appears to confirm long-standing criticisms that transitional-justice promises were principally designed to win international support and manage and ultimately end Human Rights Council oversight. Nonetheless, the March 2017 resolution and the two additional reports it mandates by the High Commissioner for Human Rights offer a framework for continued domestic and international engagement in support of greater efforts to address the legacy of war and strengthen the rule of law.

A. Transitional Justice Mechanisms in Limbo

The government and activists have largely kept the transitional justice focus on the four promised big mechanisms, rather than creating the conditions for their success by putting checks on the national security state and addressing impunity. Even so, none of the mechanisms has been established. Other than parliament’s approval of the Office of Missing Persons in August, 2016 saw no progress.[fn]In 2016, the Secretariat for Coordinating Reconciliation Mechanisms (SCRM) was launched, led by businessman Mano Tittawella and reporting to the prime minister. It sees itself as “the apex body that coordinates all government reconciliation mechanisms”. Crisis Group interview, Tittawella, Colombo, November 2016. A working group aided by two international experts prepares draft laws for the four transitional justice mechanisms but has few staffers and no one below Tittawella with bureaucratic experience or political influence. It is thus hostage to the lack of direction and political will from the top. “Coordinated” by but independent of SCRM, the Office of National Unity and Reconciliation (ONUR), led by ex-President Chandrika Kumaratunga, has significant UN funding but no clear mission or significant policy impact. SCRM reportedly may be restructured as a formal government “authority” with cabinet approval. Crisis Group interviews, SCRM staff, Colombo, March 2017. Until political leaders commit to coherent reconciliation and transitional justice policies, however, neither body can play more than a limited role.Hide Footnote The office itself remains in limbo, as Sirisena has put obstacles in its path, including not assigning it to a ministry, which is necessary for it to function.[fn]An amendment the cabinet approved in February needs parliament’s approval. The president’s refusal to make the office operational largely responds to strong criticism of the law by the Rajapaksa-led opposition and is unlikely to change. “He won’t touch it”, said a well-connected activist. “He sees it as slippery slope that will get the joint opposition up in arms”. Crisis Group interviews, government advisers, human rights lawyers, Geneva, Colombo, February-March 2017.Hide Footnote

The government has repeatedly pushed back the timetable for the other three mechanisms: a reparations office, truth commission and special court. The whole project increasingly appears on hold, with the president worried about military discontent and the potential for the Rajapaksas to exploit it.[fn]This was reportedly the president’s blunt message to the members of the consultation task force (CTF) with whom he met on 30 January. Crisis Group interviews, CTF members, March 2017.Hide Footnote Ex-President Chandrika Kumaratunga, a Sirisena ally, made clear nothing will be done to establish the court before completion of the slow-moving constitutional reforms process when she told reporters: “If you start the war crimes tribunals now, you can be sure there will be no constitution. There will be such an uproar in the country. … We have to prioritise and see what is more important”.[fn]

Regular statements by the president and prime minister opposing any role for foreign judges in the special court, as agreed in the 2015 Human Rights Council resolution, also raise doubts the government will set up this body.[fn]On 4 March, the president said, “I will not listen to … calls to prosecute my troops”. “Sri Lanka risks censure as president falters on war legacy”, AFP, 10 March 2017. The prime minister appeared to suggest a truth commission could be a possible substitute for a war crimes court. “‘Hybrid court’ not feasible: Prime Minister”, Daily News, 3 March 2017. There has been no effort to introduce legislation to make prosecution of war crimes and crimes against humanity possible, which would be essential to the ability to consider the worst wartime atrocities.Hide Footnote Sirisena said on 26 November that he was writing to ask U.S. President-elect Donald Trump to “free” the military from “accusations” it had committed war crimes and to end U.S. support for Council action.[fn]“Sirisena to write to Trump seeking relief for Sri Lanka from human rights allegations”, The New Indian Express, 27 November 2016.Hide Footnote Statements casting doubt on the court carry particular weight given the failure to pursue even cases in which the Sinhala public is interested and supportive, like the Wickrematunga murder. The surprise acquittal in December 2016 of all accused in the 2006 murder of N. Raviraj, a Tamil National Alliance parliamentarian, dented slim hopes the judiciary might fairly try cases in which the accused are military or police and the victims Tamil.[fn]The case was heard before an all-Sinhala jury. In July 2016, a similar jury acquitted six soldiers of the 1996 massacre of 26 Tamil civilians at Kumarapuram in the eastern port city Trincomalee. “Impunity reigns in Sri Lanka: The Kumarapuram massacre and acquittals”, PEARL, March 2017.Hide Footnote

“Govt. to launch hearts and minds campaign to win support for constitution: CBK”, Daily FT, 16 February 2017. Kumaratunga, previously supportive of trials, also said once a new constitution and the Office of Missing Persons are in place, “there would not be any necessity to have courts to probe war crimes”. “CBK drops bombshell, says no need for war crimes probe”, Colombo Telegraph, 2 February 2017.Hide Footnote

Sri Lanka’s specific history of commissions of inquiry that ratify, rather than end, impunity, lead many to fear a truth commission would at best merely substitute for eventual trials

With war-related prosecutions off the table, the government may eventually establish a truth commission.[fn]With little backing in government and no larger momentum behind it, this is far from guaranteed. The foreign minister told the Human Rights Council on 28 February a draft law for a “truth seeking commission” would be presented to cabinet “within the next two months”. “Statement to the High-Level Segment of the 34th Session of the UN Human Rights Council Geneva”, 28 February 2017. Draft laws for a truth commission and reparations office have been prepared by the reconciliation “working group” that reports to SCRM and the prime minister, but he made no mention of the latter. Crisis Group interviews, government officials, March 2017.Hide Footnote Properly designed, staffed and publicised, it might have potential to inform each community about the suffering of others in ways that build trust and generate the acknowledgement of state crimes Tamil victims have long been denied. That might help reduce the Tamil Tigers’ continued appeal for many Tamils and to change Sinhala attitudes enough to open political space for war-related trials. But Sri Lanka’s specific history of commissions of inquiry that ratify, rather than end, impunity, lead many to fear a truth commission would at best merely substitute for eventual trials.[fn]Indumini Randeny and Isabelle Lassée, “The Politics of Sequencing: A Threat to Justice?”, South Asian Centre for Legal Studies, November 2016.Hide Footnote To mitigate this risk, no truth commission should be created until there is tangible progress toward prosecutions in emblematic human rights cases, ideally led by a properly-resourced special prosecutor’s office, independent of the attorney general.[fn]Numerous Sri Lankan commissions of inquiry have recommended such an office. See Crisis Group Report, Jumpstarting the Reform Process, op. cit., p. 9. Should it be successful at prosecuting the non-battlefield cases noted by the UN High Commissioner, the office could later be strengthened to deal with the alleged war crimes to be handled by the UN-mandated special court. “Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka”, 10 February 2017, pp. 8-10.Hide Footnote

B. National Consultations with No Visible Government Support

The government’s failure to publicise or build cross-ethnic support for even the less controversial of its reconciliation and transitional justice initiatives is striking.[fn]On 2 May, the Cabinet approved a long-delayed National Policy on Reconciliation and Coexistence, prepared by the Office of National Unity and Reconciliation (ONUR). The policy argues power sharing and recognition of ethnic and religious pluralism are necessary to reconciliation. The “National Action Plan” that is due to follow will need strong backing from the president and prime minister to be effectively implemented. “National policy on Reconciliation and Co-existence approved”, Daily News (Sri Lanka), 4 May 2017.Hide Footnote Lack of enthusiasm was evident in the treatment of its own national consultations on “reconciliation mechanisms”. Appointed by the prime minister in January 2016, the eleven-member, multi-ethnic Consultations Task Force on Reconciliation Mechanisms (CTF) was composed entirely of well-known civil society advocates. Working with fifteen “zonal task forces”, it held hearings in all provinces and received over 7,000 submissions from the public. [fn]“Final Report of the Consultations Task Force on Reconciliation Mechanisms”, 17 November 2016, p. viii, at www.scrm.gov.lk/consultations.Hide Footnote However, the president and prime minister ignored its report and senior ministers attacked it, particularly for its endorsement of a role for foreign judges.[fn]To disappointment of victims, grassroots activists and the CTF, neither the president nor prime minister attended the 3 January report launch, though it was postponed at least once to fit the president’s schedule. He met the CTF privately on 30 January, with no announcement. CTF members have criticised the failure to take ownership of the process. “Statement by the former members of the Consultation Task Force on Reconciliation Mechanisms (CTF)”, 15 March 2017.Hide Footnote

Public distancing from the report was only the most obvious example of reluctance to support the consultations process, which from the beginning faced delays and complications. Lack of backing from government leaders and minimal media outreach reduced public awareness of hearings and the call for submissions, particularly among Sinhalese. Failure to develop an effective media campaign was due in part to the process’ ad hoc, civil society-led nature, which also resulted in bureaucratic hurdles for paying staff and other expenses that led in turn to frustration. Despite assurances of cooperation from civilian and military leaders, some who attended hearings in the north and east, as well as members of the zonal task forces, were later questioned and intimidated by the military and police.[fn]Crisis Group interviews, CTF members, Colombo, March 2017.Hide Footnote All this limited the consultations’ ability to generate a national conversation on and support for transitional justice and other reconciliation means.

Nevertheless, the report is a landmark that offers a roadmap for the changes needed if the government decides it is serious about addressing the war legacy. It articulates the stories of victims from all communities and builds on them and preferences of the war-affected to develop practical recommendations for how all four transitional justice mechanisms could best support reconciliation and democracy. Crucially, it reminds the government of the many steps it must still take, independent of the four mechanisms, to address the immediate needs of conflict-affected communities in the north and east – on livelihoods, land, military economic activities and surveillance – and to strengthen rule of law for all.[fn]See in particular its chapter VI, “Transitional justice beyond the four mechanisms”.Hide Footnote

The failure to pay more attention to these enabling conditions has contributed to the lack of progress. Domestic and international focus on the four mechanisms – and civil society preoccupation with educating people in the international language of transitional justice – diverted attention and energy from many reforms needed for those mechanisms to function effectively: reducing the security state’s political influence, repealing the Prevention of Terrorism Act, creating effective witness protection, ending military surveillance and intimidation of activists in the north and east and prosecuting key corruption and political murder and abduction cases. These steps would help open space for transitional justice by making it safer to discuss and challenge state abuse. Connecting the two agendas would also make it easier to explain transitional justice to Sinhalese audiences.

V. Growing Discontent in the North

The growing doubts about government commitment to even a basic transitional justice process is further weakening low levels of trust among Tamils in the north and east. The second half of 2016 saw little progress on the confidence-building measures the Sirisena government had promised. The slow but steady return of military-occupied land to Tamil owners in Sirisena’s first year waned; indeed, additional land has been taken for new camps.[fn]Since April 2016, there have been some small land releases in the north. There are no public, trusted figures for how much land, public or private, the military holds and no transparency regarding often contradictory government claims. Crisis Group interviews, Colombo, November 2016. A government baseline study of such land, preferably with the northern and eastern provincial councils and the UN or another international body, would build trust and capacity.Hide Footnote The military continues to run shops, hotels and farms in the north, to the local economy’s detriment, and to involve itself in a range of civilian activities. Buddha statues are still being set up with its help in Tamil and Muslim villages where the only near Buddhists are soldiers.[fn]Crisis Group interviews, community leaders, Jaffna, March 2017.Hide Footnote

Since the start of 2017, there has been a wave of protests across the north and into the east demanding return of military-occupied land and information on the disappeared. Angry at unfulfilled government promises, communities have launched sit-down strikes outside military camps, and relatives of the disappeared have gone on hunger strikes. Following direct appeals to the president from Tamil National Alliance leader Sampanthan, small amounts of military-held land in Mullaitivu districts were released in March. TNA meetings with the military led to further small releases in April, with more promised, but protests continue.[fn]A small amount of private land was returned on 1 March in Pilakudiyiruppu. Owners complain the military looted and destroyed their houses. An additional 480 acres in nearby Kepapilavu division remains occupied. “In Post-war Sri Lanka, Returning IDPs Face Fresh Challenges”, Roar.lk, 10 March 2017; “‘We will not move from here until we get our land back’: from inside the Pilavu protest”, Tamil Guardian (www.tamilguardian.com), 13 February 2017. On 3o April the Navy returned 100 acres to families in Mullikulam. “Navy to release 100 acres of land for the Mullikulam public”, www.defence.lk, 30 April 2017. “Govt. agrees to release more military-occupied land: TNA, Daily Mirror (Sri Lanka), 18 April 2017. Despite hunger strikes, including by elderly women, there has been no progress on disappearances. Families were angry when a meeting with the president and prime minister, promised for ending the strike, was hosted by ministers and the head of police. “Sri Lankan government sends back families of missing with yet another promise”, The New Indian Express, 18 February 2017.Hide Footnote

The sense of grievance generated by the continued heavy military presence and lack of progress on addressing the war legacy is strengthening the nationalist sentiments of many Tamils and increasing tensions with Sinhalese and Muslims.[fn]Crisis Group interviews, Colombo, Jaffna, March 2017. While both Tamils and Muslims in the north and east have suffered from militarisation and Sinhala nationalist policies, mistrust is strong between the communities over land issues, the war legacy and Tamil Tiger violence. Crisis Group Asia Report N°219, Sri Lanka’s North I: The Denial of Minority Rights, 16 March 2012, pp. 26-30.Hide Footnote With the Tamil National Alliance leadership working to maintain smooth relations with the government so as to facilitate constitutional negotiations, Tamil disappointment and anger have largely been channelled by Northern Province Chief Minister C.V. Wigneswaran and his Tamil People’s Congress (TPC), which poses a growing challenge to the more accommodating TNA.[fn]The TPC does not contest elections and has TNA members, including the chief minister, as well as smaller political parties, including the Tamil National People’s Front.Hide Footnote

The chief minister and organisers were called “extremists”, even racists and pro-Tamil Tiger separatists.

The TPC-organised “Eluga Tamil” (“Tamil, Rise”) rally in Jaffna in September 2016 was the post-war’s largest in the north. Some 10,000-15,000 protested continued militarisation of area and what many see as growing threats to the Tamil character of the province. The rally, addressed by Wigneswaran, highlighted many grievances and called on the government to live up to its promises to return private land, resettle those still in camps, remove the military from economic and civilian activities and give answers to the families of the thousands of Tamils who disappeared in the war, many after being taken into military custody. Many Tamils in and out of Sri Lanka were gratified by the turnout and publicity, but there was wide criticism by many Sinhalese and Muslims, and by Tamils committed to engaging the government on constitutional and other reforms. The chief minister and organisers were called “extremists”, even racists and pro-Tamil Tiger separatists.[fn]Critics included ministers, radical Buddhist nationalists and some northern Tamils. “Demo in North; Govt not afraid – Ruwan”, Daily Mirror (Sri Lanka), 25 September 2016; “‘Eluga Tamil’ and the constitutional litmus test”, Daily FT, 30 September 2016. For the rally’s declaration, see “Thousands take part in Ezhuka Tamil rally in Jaffna”, Tamil Guardian (www.tamilguardian.com), 24 September 2016.Hide Footnote

Criticism centred on calls for an international investigation into alleged genocide against Tamils, removal of the military from the north (as distinct from reducing its size and removing it from non-military activities) and a halt to the spread of Buddha statues and settling of Sinhalese in the north. Echoes of Tamil Tiger-organised “Pongu Tamil” (“Tamil Uprising”) rallies and failure to reach out to Muslims caused the standard Tamil nationalist demand for a federal constitution and recognition of the Tamil homeland in the north and east to look more threatening.

The negative reaction among Sinhalese, including many who see themselves as supporters of reconciliation, reveals how wide the gap is between communities.[fn]The limited support for the rally outside the north angered many Tamil activists and deepened divisions with counterparts in Colombo and the south. Relations were already tense due to differences over how and whether to engage the government on its reform initiatives, including the civil-society run CTF, the Office of Missing Persons and the March 2017 Human Rights Council extension. Crisis Group interviews, Tamil Civil Society Forum members, March 2017.Hide Footnote It resulted from organisers’ failure to frame demands in ways that could be more easily accepted by potential allies in other communities. The lack of a Sinhala translation of the chief minister’s speech as he spoke made it more likely Sinhala media would present a distorted version of the rally.[fn]Following the strong criticism of the rally, Wigneswaran reached out more to Sinhalese, including by press conferences with the Sinhala- and English-language media. “Wigneswaran calls for north-south dialogue”, The Hindu, 23 November 2016.Hide Footnote

The rally also needs to be seen in the context of political struggles within the Tamil community. Tamil National Alliance leaders were publicly critical of its timing, sought postponement and reportedly tried to persuade people not to take part.[fn]“Wigneswaran urges Tamils to join mass protest in Jaffna tomorrow, Daily FT, 23 September 2016. Crisis Group interviews, Tamil Civil Society Forum members, Jaffna, March 2017.Hide Footnote The rally was at least in part an expression of discontent with Sampanthan and his de facto deputy, M.A. Sumanthiran. Often overlapping political formations that have been very critical if not directly opposed to the alliance leadership organised this rally: Wigneswaran and the TPC, but also the Tamil Civil Society Forum and a chief TNA electoral rival, the Tamil National People’s Front.[fn]Unhappiness with the TNA’s pro-engagement policies among northern Tamil civil society, backed by many in the diaspora, has not been enough to overcome Tamil voters’ desire for unity and traditional support for the Illankai Tamil Arasu Kachchi (ITAK), the main constituent of the TNA. Crisis Group interviews, Tamil academics, Jaffna, March 2017. The January 2017 foiling of a plan to assassinate Sumanthiran, allegedly by ex-militants with links to rump Tamil Tigers abroad, came in the wake of denunciations of Sumanthiran as a traitor to the Tamil cause. There are suspicions the plot may have been planned by military intelligence elements loyal to ex-Defence Secretary Gotabaya Rajapaksa. Crisis Group interviews, journalists, diplomats, Colombo, March 2017. Dharisha Bastians, “The perils of traitorisation”, Daily FT, 2 February 2017.Hide Footnote

The TNA’s Tamil rivals argue that its strategy of working closely with the government on constitutional reforms has led it to soften criticism of unfulfilled promises. Growing anger and frustration at lack of change in the north could make it harder for the TNA leadership to win Tamil support in a constitutional referendum, though expected opposition from the Rajapaksa-led opposition could be enough to generate a strong Tamil vote for even relatively modest changes.[fn]Crisis Group interviews, Tamil academic, Jaffna, March 2017.Hide Footnote

VI. A New Constitution?

Sirisena came to office on a promise to change the constitution, a goal also endorsed by the victorious UNP-led coalition in the 2015 parliamentary elections and by the unity government. Key changes envisaged are abolition or further weakening of the executive presidency, a new mixed electoral system, a bill of rights, and, most important but most controversial, deepened devolution of power to provincial councils so as at least partially to resolve the Tamil national question.[fn]For a useful overview of constitutional promises made at various elections, see “Two Years in Government: A Review of the Pledges Made in 2015”, Centre for Policy Alternatives, February 2017, pp. 13-14. While Sirisena is believed to have agreed to pursue greater devolution in exchange for the Tamil National Alliance support in the January 2015 election, the issue was not mentioned in his manifesto or in the UNP-SLFP coalition agreement. For more on constitutional reforms, see Crisis Group Report, Jumpstarting the Reforms Process, op. cit., pp. 19-23.Hide Footnote

Abolishing the executive presidency and devolution beyond what is in the thirteenth amendment have been stated government goals since 1994. Once a president is in office, however, surrendering powers has been difficult; likewise, the required cross-party consensus on devolution repeatedly has been blocked by Sinhala fears of separatism, as well as more cynical party politics.[fn]The most sustained attempt at constitutional reform was President Kumaratunga’s, 1995-2000, but Mahinda Rajapaksa, too, was elected on a pledge to end the executive presidency and maximise devolution, though in a unitary state. For more on constitutional reform history, see Crisis Group Report, Tamil Politics and the Quest for a Political Solution, op. cit.Hide Footnote With the unity government’s two-thirds majority in parliament and support expected from the Tamil National Alliance’s sixteen deputies, there is, in principle, an unprecedented opportunity both to achieve devolution and design a more coherent constitution, rather than piecemeal amendments.

While encouraging progress was made in negotiations through 2016, deep divisions over the nature of the state and short-term calculations on the political futures of individuals and factions have reasserted themselves and threaten any compromise. The government’s apparent decision to postpone major transitional justice initiatives until after constitutional reforms has increased the stakes.

A. A Quiet Process

Parliament began drafting a new constitution in March 2016 by forming a Constitutional Assembly of its whole membership. The Assembly formed a cross-party steering committee and six subcommittees (with all parties represented) to draft proposals.[fn]There are subcommittees for fundamental rights, the judiciary, law and order, public finance, public service and centre-periphery relations. The Steering Committee took the “nature of the state, sovereignty, religion, form of government, electoral reforms, principles of devolution, land and “matters covered by Chapter 1 and 2 of the present constitution”. http://english.constitutionalassembly.lk/. Finding consensus on the full range of issues was always going to be hard, and no partial agreement is considered final until the whole package is agreed.Hide Footnote Work proceeded quietly throughout 2016, backed by occasional direct meetings between the president, prime minister and Tamil National Alliance.[fn]Crisis Group interviews, steering committee members, Colombo, November 2016.Hide Footnote Though slower than the original one-year timetable, the process appeared to be on track as late as November, when the subcommittees published reports on a range of issues. Devolution proponents welcomed the proposals of the subcommittee on centre-periphery relations, and the steering committee was poised to ratify and even strengthen them in its report to the full Assembly by year’s end.[fn]Ibid. In an attempt to generate cross-party consensus from the initial stages of negotiations, members of Rajapaksa’s “joint opposition” were on all subcommittees and endorsed their reports.Hide Footnote

While short of the TNA’s federalism goal, a compromise appeared in the works to strengthen the limited and ambiguous powers of provincial councils under the never-fully-implemented thirteenth amendment.[fn]The thirteenth amendment, adopted as a consequence of the 1987 India-Sri Lanka accord, established provincial councils with limited powers. Resistance from Sinhala nationalists and central government bureaucrats has meant provinces have never had power over land and police. A host of “concurrent” powers and ambiguous, open-ended clauses have allowed the central government to reclaim many apparently devolved powers. See Crisis Group Report, Tamil Politics and the Quest for a Political Solution, op. cit., pp. 18-21.Hide Footnote Most contentious is the definition of Sri Lanka as a “unitary state”, which courts have invoked to restrict devolution. The emerging consensus was to retain “unitary” but define and contextualise it to allow greater provincial powers.[fn]“Report of the Public Representations Committee on Constitutional Reform”, May 2016, pp. 20-25. While expanding and clarifying provincial powers, including over land and police, the emerging compromise was expected to keep the clause giving Buddhism pre-eminent status, despite Tamil and Muslim support for a secular state, and keep the northern and eastern provinces apart, though Tamil nationalists and the Alliance’s 2015 election manifesto demanded re-merger.Hide Footnote While pleasing neither Sinhala nationalists (for whom “unitary” is synonymous with “united”) nor Tamil nationalists (whose minimal demand is federalism), there was hope this could win cross-party and public endorsement and allow meaningful autonomy in the north and east.

Political reality struck when the steering committee postponed debate on the subcommittee reports planned for 10 December and a subsequent debate planned for the second anniversary of Sirisena’s January election, when its own report was to be discussed. The SLFP and left-wing Janatha Vimukthi Peramauna requested additional time to study the still-unpublished latter, which proposes on overall outline of a new constitution, drawing on the subcommittee reports and adds its own ideas on the unitary state, executive presidency, privileged status of Buddhism and a new electoral system.[fn]Dharisha Bastians, “President steps in to break deadlock in constitutional negotiations”, Daily FT, 16 February 2017. On the electoral system, there is cross-party consensus to move from the proportional, party-list preferences system to a mixed first-past-the-post and proportional system, but deep differences remain on details. Smaller parties are concerned their votes could be diluted. Attempts to reach consensus on a twentieth constitutional amendment failed in 2015. Crisis Group Report Sri Lanka Between Elections, op. cit., pp. 11-12.Hide Footnote

Without a referendum, there can be no new constitution […] nor any meaningful increase in the powers devolved to provinces.

SLFP ministers were actually backing away from key assumptions underpinning the process. In a 3 January meeting with Sirisena, they unanimously decided to oppose any devolution beyond the thirteenth amendment and any changes requiring a referendum, which in effect rules out significant reform. The ministers also announced support for the executive presidency and called on Sirisena to be the SLFP’s presidential candidate in 2020, despite his promises to abolish the position and not stand again.[fn]“SLFP wants executive president retained and Sirisena to contest”, The Sunday Times (Sri Lanka), 8 January 2017. Their position on devolution is also in the mainstream of Sinhala political thinking and consistent with traditional SLFP policy, with the exception of the Kumaratunga years. Key players in the SLFP’s pro-devolution wing such as Mangala Samaraweera and Rajitha Senaratne are now aligned with the UNP. Considerable uncertainty remains about the UNP, which on 8 December restated support for a new constitution, for “maximum devolution within a unitary state”, and for retaining the executive presidency (which it pledged to abolish in 2015). “UNP approves two resolutions to honour mandate”, Daily News, 9 December 2016.Hide Footnote Without a referendum, there can be no new constitution – which the SLFP agreed to pursue when it voted to create the Constitutional Assembly – nor any meaningful increase in the powers devolved to provinces.[fn]Change of certain “entrenched” constitutional clauses requires a two-thirds parliamentary majority and a referendum. These include Article 2: “The Republic of Sri Lanka is a Unitary State”; and Article 9: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana”.Hide Footnote

While the SLFP central committee has not formally endorsed the position, it is clear Sirisena has not persuaded even the wing of the party that formally supports him. He has since increased his effort to broker an SLFP-UNP-Tamil National Alliance compromise, and a new steering committee report is being drafted, but it is an uphill battle. “The president is insisting he is committed to a new constitution and ending the executive presidency”, said a close observer, “but it’s also clear SLFP bigwigs are opposed. The big question now is who will come out on top”.[fn]Crisis Group telephone interview, Col0mbo lawyer, February 2017; Dharisha Bastians, “President steps in to break deadlock in constitutional negotiations”, Daily FT, 16 February 2017.Hide Footnote

SLFP ministers are spooked by the threat Mahinda Rajapaksa and the joint opposition present to the pro-Sirisena SLFP in 2017 local and provincial polls. Rajapaksa denounced the subcommittee proposals, particularly on devolution, as “designed to end the unitary character of Sri Lanka without however deleting that word from the constitution”. The new constitution, he warned, “will divide the country without using the word division”.[fn]Among other aspects, Rajapaksa opposed reducing provincial governors’ powers, removing the list of powers shared by the centre and provinces and giving provinces significant powers over land and police. He also warned against limiting executive and emergency powers and expanding rights. His statement rejected positions he had taken as president, even criticising national-language status for Tamil, which is already in the constitution. “Rajapaksa fires first salvo against constitutional reform process”, Sri Lanka Brief (srilankabrief.org), 4 December 2016.Hide Footnote In March, he accused the government of a “traitorous agenda” to encourage “separatism”, saying proposed constitutional changes and other reforms were aimed at “demoralising and breaking the will of the majority of the population and the armed forces.[fn]Mahinda Rajapaksa, “Constitutional and legal reforms to destroy the nation”, Colombo Telegraph, 14 March 2017.Hide Footnote The SLFP is also responding to worries about the difficulty of winning a referendum that have grown in the wake of recent results in the UK, Colombia and Italy and are compounded by discontent over the government’s failure to deliver on the economy or governance.[fn]Crisis Group interviews, government officials, Colombo, November 2016. “Most people worried about referendum: Chandrika”, The Hindu, 16 February 2017. Some advisers are counselling Sirisena to give up the constitution and limit changes in provincial powers to laws needing only a parliamentary majority, such as an amended Provincial Councils Act. Ibid.Hide Footnote

Doubts are also an effect of the lack of consistent, strong, public support for expanded devolution from the president, prime minister and other key ministers. While Sirisena defended devolution before parliament on 2 December, he avoided taking positions on specific provisions. His strategy has been to keep discussions out of the public eye, in the hope the Constitutional Assembly would produce a detailed consensus. This has backfired, leaving public debate on constitutional reform and devolution dominated by nationalists on both sides, but particularly Rajapaksa-aligned Sinhala politicians.[fn]“Need of the hour is leaders who can find just solutions – President”, PMD News (www.pmdnews.lk), 2 December 2016. The lack of a government information campaign has also contributed to poor knowledge of the constitutional reforms process in the public. “Opinion Poll on Constitutional Reform – Topline Report”, Centre for Policy Alternatives, April 2017.Hide Footnote Having failed to propose any alternative to the exclusionary Sinhala nationalist vision of the state articulated by Mahinda Rajapaksa, the government is on the defensive, denying that it plans to weaken Buddhism and supports separatism.[fn]“Prime Minister reassures foremost place for Buddhism”, Daily News, 11 October 2016.Hide Footnote A prominent pro-devolution activist said, “Ranil is hopeless, and Maithri is staying quiet”.[fn]Crisis Group email correspondence, February 2017.Hide Footnote The costs are now uncomfortably clear.

B. The Way Forward

With nationalist sentiments rising in north and south, the government needs to make a major effort to inform the public about the reforms under negotiation. The president and other top officials should begin a campaign to persuade Sinhalese that a fair political solution to the ethnic conflict requires expanded provincial powers, while reassuring Tamils a united Sri Lanka can protect their rights. Repeated promises to launch such a campaign have not materialised.[fn]“Govt. to launch hearts and minds campaign to win support for constitution: CBK”, Daily FT, 16 February 2017. Plans for a media campaign have been under consideration for months. Crisis Group interviews, government officials, November 2016, January 2017.Hide Footnote Chief ministers from all provinces should be at the forefront. Many support more devolution and could speak to what all communities could gain.[fn]See, for instance, “A New Devolution Settlement for Sri Lanka: Proceedings and Outcomes”, Conference of Provincial Councils, Centre for Policy Alternatives, August 2016.Hide Footnote Sinhalese and SLFP chief ministers would be particularly effective at diluting the line it is only for Tamils.[fn]Proponents say the constitution should include a bill of rights, likely also socio-economic rights, but there is a debate over whether these would be justiciable in court. Such enforceable rights could make a constitution more attractive to Sinhala in a context where devolution would otherwise dominate debate. Crisis Group interviews, lawyers, activists, Colombo, March 2017.Hide Footnote

The government has reached the limits of quiet deal making. Without a fight, there is little chance a decent constitutional package will emerge and survive a referendum. The president and prime minister face a crucial choice: going all out risks a defeat that could well mean the end of the unity government and a strengthened hand for the Rajapaksas in their battle to win back the SLFP. Alternatively, they could abandon the constitution and new devolution and give up on the agenda central to their already-damaged yahapaalanaya brand. But that retreat would almost certainly only postpone a collapse back into dangerous, polarising politics as usual. Abandoning the constitution would also deal another blow to Tamil hopes of securing meaningful autonomy from the Sinhala-dominated state. It would cripple pro-engagement Tamil leaders who have taken a big risk in working closely with the government and being willing to accept compromises at a considerable distance from the traditional Tamil nationalist demand for federalism.[fn]These have been most recently articulated in a Tamil People’s Council statement: “A viable solution to the Tamil National question could only be achieved by establishing sovereign institution[s] of self-government which recognise the Tamil people of the North and East as a distinct nation, while … respecting their right to self-determination”. “Ezhuga Thamizh” Declaration, Batticaloa, 10 February 2017. Moves to amend the provincial councils act as a step toward more effective provincial autonomy would fall far short of demands and likely be viewed as humiliating.Hide Footnote

Should Sinhala political leaders again fail to offer meaningful provincial autonomy, the repercussions may be felt for decades. Restlessness and radicalisation among Tamils in the north and east almost certainly would grow, provoked daily by the heavy presence of a virtually all-Sinhala military. While the 100,000 or more troops and their thousands of informants would be able to prevent a return to war, the lack of political power they signify and prolong would perpetuate conflict.

VII. International Support

Internationals have been too quick to celebrate a Sri Lanka success story and failed to maximise their leverage. Today’s greatest danger is moving too slowly on reforms and losing what remains of the public support and enthusiasm essential to success. Without significant external pressure, the government is unlikely to pursue reforms seriously enough. A renewed “good governance” agenda needs more effective backing from partners beyond the essential UN oversight that will be maintained through the rollover resolution unanimously approved at the Human Rights Council’s March 2017 session. Lacking enforcement powers, the Council has impact primarily through the willingness of UN member states to use their influence to encourage Sri Lanka to fulfil the commitments it has reaffirmed in Geneva.

Influential states, multilaterals and campaigners have limited tools to influence Sri Lanka, particularly as sovereignty concerns are not always a mere proxy for chauvinism or resistance to change. But smart, calibrated engagement could play a useful role in putting reforms back on track:

  • Sri Lanka’s international partners should send clear messages to President Sirisena and his wing of the SLFP that reunifying the party around either Gotabaya or Mahinda Rajapaksa will not only damage Sri Lanka’s long-term prospects for sustainable peace but also endanger the international backing it has recently regained.
     
  • With the renewal of GSP+ trade benefits, the European Commission should devise a rigorous monitoring process, and should work with the government to strengthen the National Human Rights Commission including by codifying its right to review all draft bills with impact on fundamental rights as part of its mandate to monitor Sri Lanka’s compliance with treaty commitments.
     
  • Foreign militaries and the UN could use increased cooperation with the military to encourage security sector reform and greater accountability, while rigorously vetting personnel considered for training and peacekeeping operations.[fn]The UN and key military partners, notably the U.S., should press the government to hold criminally accountable army personnel responsible for documented peacekeeper sexual abuse in Haiti in 2007. “UN child sex ring left victims but no arrests”, Associated Press, 12 April 2017.Hide Footnote
     
  • Global financial institutions and development agencies could tailor support to encourage equitable sharing of costs and benefits of growth from economic reforms and minimise risks of social conflict from abrupt economic liberalisation.
     
  • Civil society’s ability to hold the government to at least some promised reforms is encouraging. Donors should strengthen support to its efforts to hold government accountable and encourage groups to collaborate more actively across regional, linguistic and ethnic differences.
     
  • India should follow up on Prime Minister Modi’s successful May visit to reaffirm India’s traditional support for expanded provincial powers and encourage more effective cooperation between President Sirisena and Prime Minister Wickremesinghe.
    ​​​​​​​
  • China should show flexibility, allowing renegotiation of Rajapaksa-era loans to give the government manoeuvre room in a difficult economic situation that produces hardship for ordinary people and potential political instability.

VIII. Conclusion: Renew or Collapse

If the government is to not lose its chance to address Sri Lanka’s key sources of conflict and instability, it must return to its good governance and reconciliation agenda. The democratic middle ground is still there to be had, but the government must work to expand it. Achieving sustainable changes to the political culture requires retaining support from the three key constituencies that brought it to power: reform-minded Sinhalese, Muslims, and Tamils. While few from these are likely to support the Rajapaksa-led opposition, discouragement and abstentions could be enough for an SLFP triumph under restored Rajapaksa leadership.

Rebuilding trust in the yahapaalanaya project requires compromise and balancing expectations and risks across the spectrum of challenges. At a minimum, president and prime minister need to agree on a five-point program of renewal:

  • Set up an UNP-SLFP economic team to develop and oversee consensus policy on economic reforms and sharing short-term hardships more equitably.
     
  • Launch a campaign for a new, more democratic, pluralist constitution, including increased devolution, and commit to achieving the two-thirds majority needed in parliament, while building support to win a referendum.
     
  • Operationalise the Office of Missing Persons, with independent staff well-versed in disappearance issues and a significant role for victims’ families.
     
  • Restore normalcy in the north and east and increase Tamil trust by returning military-occupied land to owners, ending military involvement in farms and shops and spread of Buddha statues, and ceasing surveillance and intimidation of political activities.
     
  • Restore rule of law by long-promised institutional reforms, pursuing crimes allegedly committed by military intelligence death squads and preventing and punishing any corruption by insiders in either party, including a thorough criminal investigation into the February 2015 Treasury Bond issue.

Civil society in all communities has an important role in achieving meaningful reforms. Sinhala groups that backed Sirisena’s good governance agenda should do more to bring Tamil issues to the Sinhala south and argue the concerns of all communities on rule of law, ending impunity and achieving a constitution with deeper devolution, expanded rights and a less powerful presidency. In turn, Tamil activists and civil society groups in the north and east should resist the growing trend toward exclusively Tamil positions and advocacy, however severe their frustrations. There is no other route to achieving their rights than with Sinhala and Muslim allies; appeals for international intervention lack traction in today’s context.

Finally, Tamils and Muslims need to do more to rebuild their relationship. Each community has made mistakes and has much to gain from strengthened ties. Both continue to suffer from language discrimination and expansionist forms of Sinhala Buddhist nationalism. They should press their political leaders to develop a transparent and equitable process to ensure return of those displaced by the war in both communities, as well as the small number of Sinhalese.

This year is another decisive one in Sri Lanka’s political history. If current dynamics continue, the country will likely lose a real opportunity to address the roots of its decades of political turmoil. The chances of an eventual return to violence would then grow considerably. To prevent this, the president, prime minister and leaders in both unity-government parties will need to jointly take up the challenge of persuading their colleagues and the public that a more equal and inclusive Sri Lanka is possible and the best way of insuring prosperity and peace for all.

Colombo/Brussels, 16 May 2017

Appendix A: Map of Sri Lanka

Map of Sri Lanka Crisis Group. Based on UN map No. 4172 Rev. 3 (March 2008)

Appendix B: Glossary of Terms

CIABOC – Commission to Investigate Allegations of Bribery or Corruption: One of Sri Lanka’s independent government commissions, members appointed by the Constitutional Council.

CTA – Counter-Terrorism Act: Draft legislation designed to replace the widely-criticised Prevention of Terrorism Act, as agreed in the 2015 UNHRC resolution.

CTF – Consultation Task Force on Reconciliation Mechanisms: 11-member group of civil society activists appointed by the prime minister in January 2016 to lead nationwide public consultations on the design of transitional justice mechanisms agreed in the 2015 UNHRC resolution; issued report in January 2017.

GSP+ – Generalised System of Preferences Plus: The European Union’s program of unilateral tariff preferences for developing countries, designed to support sustainable development and the full implementation of 27 international conventions on human and labour rights and environmental protection.

ONUR – Office of National Unity and Reconciliation: Established in 2015, led by ex-President Chandrika Kumaratunga and reporting to President Sirisena in his capacity as Minister of National Integration and Reconciliation.

SCRM – Secretariat for Coordinating Reconciliation Mechanisms: Established in 2016 to coordinate government work on transitional justice and reconciliation; reporting to the prime minister.

SLFP – Sri Lanka Freedom Party: The main left-of-centre party, headed by Mahinda Rajapaksa until January 2015 and now by President Maithripala Sirisena. Party is split between those aligned with Sirisena and those still loyal to Rajapaksa. The latter faction forms the core of the “joint opposition” in parliament and includes smaller parties formerly part of the United People’s Freedom Alliance: the Sinhala nationalist National Freedom Front (NFF), Mahajana Eksath Peramuna (MEP) and PHU (Pivithura Hela Urumaya), and the leftist Lanka Sama Samaja Party (LSSP) and Democratic Left Front (DLF).

TNA – Tamil National Alliance: A coalition of four parties – Illankai Tamil Arasu Kachchi (ITAK), Eelam People’s Liberation Front (EPRLF), People’s Liberation Organisation of Tamil Eelam (PLOTE) and Tamil Eelam Liberation Organisation (TELO) – led by veteran politician R. Sampanthan. Originally formed in 2001 under pressure from the Tamil Tigers to support its claims to leadership of the Tamil people, it currently supports a political solution under a federal system in a united Sri Lanka.

TPC – Tamil People’s Council: A Tamil civil society group uniting groups and activists dissatisfied with the positions of the leadership of the Tamil National Alliance; formed in December 2015 and co-chaired by Northern province Chairman C.V. Wigneswaran.

UNP – United National Party: The traditional centre-right party, headed by Prime Minister Ranil Wickremesinghe.

UNCAT – UN Committee Against Torture: Oversees compliance by signatory states with requirements of the UN Convention Against Torture; formally considered Sri Lanka in November 2016.

UNHRC – UN Human Rights Council: The council unanimously approved resolution on accountability and reconciliation in Sri Lanka in October 2015, reaffirmed in March 2017, committing Sri Lanka to establishing a range of transitional justice institutions and related governance reforms.

Ruined houses at the entrance to Kubatly town. All rights reserved
Report 255 / Europe & Central Asia

Digging out of Deadlock in Nagorno-Karabakh

If they move quickly, Armenia and Azerbaijan could break out of their long impasse over the disputed territory of Nagorno-Karabakh. They could pursue quiet talks on thorny issues – settlements, peacekeepers and final status – but along separate tracks rather than in a single package.

What’s new? An opportunity has opened to reset deadlocked talks between Baku and Yerevan over the breakaway region of Nagorno-Karabakh. The parties are a long way apart, but negotiations could help prevent a new escalation after years of growing militarisation and lay the groundwork for the conflict’s eventual resolution.

Why does it matter? The window may close if Baku and Yerevan do not act. Already the thaw in Armenia-Azerbaijan relations shows signs of frost. Without talks on key issues – the future of areas adjacent to Nagorno-Karabakh and people currently residing there, prospects for international peacekeeping, and Nagorno-Karabakh’s status – positions risk hardening further.

What should be done? On the adjacent territories, temporarily freezing new settlement construction in return for Azerbaijan refraining from legal action or new sanctions could improve prospects for talks. For peacekeepers, the OSCE High-Level Planning Group could reassess options. On Nagorno-Karabakh’s status, the parties remain far apart but informal talks could still be worthwhile.

Executive Summary

A narrow opening to breathe life into the moribund peace process between Azerbaijan and Armenia over the breakaway territory of Nagorno-Karabakh risks closing. If it does, Baku and Yerevan may not only lose the gains they have recently made but also bury the peace process for some time. Yerevan and Baku would be wise to act fast. They could start talks on issues underpinning the standoff: the future of territories adjacent to Nagorno-Karabakh in which Armenian settlers have made their homes; a potential role for international peacekeepers; and, the core issue, Nagorno-Karabakh’s status. On the adjacent territories, a time-bound freeze on new settlements in return for Azerbaijan’s pledge to pause any international legal action or new sanctions could check a gnawing problem and help unlock talks on other core disagreements. On prospects for peacekeeping, the Organization for Security and Co-operation in Europe’s (OSCE) High-Level Planning Group (HLPG), set up in the 1990s to plan for such missions, could assess options anew. The parties are bitterly divided on Nagorno-Karabakh’s status but starting discreet, informal talks could still be worthwhile.

In early 2019, progress seemed palpable. A new government in Yerevan said it was ready to seek a compromise solution. Baku appeared to be more open to exploring ways to resolve the dispute. The two countries’ relations, acrimonious since a 1992-1994 war and further damaged by clashes in 2016 that killed hundreds of people, slightly thawed. Renewed diplomatic engagement between the two reduced flare-ups and created a more favourable environment for negotiations. The Armenian and Azerbaijani governments agreed to launch humanitarian projects near the front lines and let journalists and relatives visit detainees in their respective capitals.

But the rapprochement has not led to renewed peace talks. Discussion between the two sides on their main points of disagreement over Nagorno-Karabakh have been suspended for more than a decade. Years of estrangement have hardened positions: Yerevan, Baku and the de facto authorities in Nagorno-Karabakh’s capital Stepanakert continue to make uncompromising demands regarding Nagorno-Karabakh’s ultimate fate. Moreover, over recent months Armenia-Azerbaijan relations have cooled again as each leader issued tit-for-tat claims over Nagorno-Karabakh that the other considered provocative. If the two sides fail to build on the cornerstones laid in 2019, the relative calm may not hold.

Finding a way forward ... will be no small challenge.

A renewed effort to seek compromise could help prevent tensions from once again spiralling. Specifically, the parties could revisit three issues over which they have been at loggerheads since the 1992-1994 war. The first involves the fate of territories adjacent to Nagorno-Karabakh. Azerbaijanis were forced to flee these areas during the war. Settlers – mostly ethnic Armenians displaced from Azerbaijan itself – moved in. Stepanakert now exerts authority over and funds settlements that have expanded to most of the area between Armenia and Nagorno-Karabakh. Settlers contribute significantly to the breakaway region’s economy, mostly through booming agriculture, and have strong ties to homes and communities they have built from the ground up. Finding a way forward that meets the interests of both settlers and people displaced from the adjacent areas, and also involves the return of those areas to Azerbaijan, will be no small challenge.

One option to nurture conditions for talks might be for Armenia to persuade Nagorno-Karabakh’s de facto authorities to suspend plans for new settlements and, in return, for Azerbaijan to pledge not to act on plans to pursue settlement-related complaints in international courts or impose further sanctions for a set period. Yerevan argues that decisions regarding settlement expansion are in Stepanakert’s hands. In reality, however, Armenia has considerable influence as Nagorno-Karabakh’s main security guarantor, provider of around half of its budget and main market for its products. For its part, Baku is likely to oppose such reciprocal steps, fearing that pausing legal action in return for a settlement freeze would risk appearing to accept existing settlements at a time when it feels there is greater international support for its stance. But it could reiterate publicly its position that the settlements violate international law even while pledging to halt new sanctions or legal action, and thus signal it rejects the continued existence of those settlements that are in place.

The second issue revolves around the composition and mandate of a potential international peacekeeping or monitoring mission. Such a mission could help minimise violence, create conditions for a peace deal and monitor or enforce such a deal if and when one is reached. While proposals have been circulated intermittently since 1994, particularly by Russia, no such force has ever deployed. The parties have both tended to oppose a military force or one with an outsized Russian role. An OSCE HLPG was set up in the 1990s to plan for such missions but – in the absence of progress in talks – has foundered. With the support of the parties, the OSCE could reinvigorate it and task it with a specific, time-delimited (perhaps one year) mandate to define a set of options. These could then form the basis for the parties’ discussions on such a mission.

The last issue is Nagorno-Karabakh’s independence claim, at the conflict’s core and the hardest to resolve. Armenia and Stepanakert insist on statehood. Baku is at most prepared to offer Nagorno-Karabakh self-rule within Azerbaijan. Though the parties share little common ground, there are tentative signs of movement. In Azerbaijan, senior officials have begun exploring precisely what granting the region autonomy would entail and how a referendum on its status could be organised. Their ideas remain far from anything Yerevan or Stepanakert would accept; nor do they reflect an accurate grasp of life and governance in Nagorno-Karabakh today. They could, however, offer an opening for discussion. Given the sensitivity of the issue and the distance between the parties, any talks on status would likely have to start discreetly and semi-formally.

While past dialogues have failed mostly due to disagreement and distrust between the parties, the fact that the three issues have always been discussed together, as a single package, arguably has not helped. The three are interconnected, and progress on any requires (and could enable) progress on the others. But parties have been slow to act on the first two – the settlements and the potential role of international peacekeepers or monitors – for fear that doing so could influence future discussions of the third, Nagorno-Karabakh’s status. To mitigate this constraint, the parties could pledge that any agreement reached would be without prejudice to talks on other issues.

Direct talks between the parties inevitably entail risks. They could highlight the distance between the two sides’ positions, thereby fuelling mutual anger and potentially reversing the past months’ gains. But years of continued stalemate have put a potential solution further out of reach and isolated Armenians and Azerbaijanis from one another. The more time goes by, the more facts on the ground will be entrenched, the harder they will be to reverse and the graver the risk of war. If talks might make matters worse, their continued absence almost certainly will. Getting back to the table will be difficult but is the only way Armenia and Azerbaijan can start digging out of their deadlock.

Baku/Yerevan/Stepanakert/Tbilisi/Brussels, 20 December 2019

Flowers have been placed here, 100m from the Line of Contact, in memory of a girl shot dead during the 2016 escalation in Hasanqaya, a village located in Azerbaijan's Tartar region.  CRISISGROUP/Jorge Gutierrez Lucena

I. Introduction

The coming to power in 2018 of a new government in Yerevan raised hopes of a reset in relations between Armenia and Azerbaijan. The two countries have been deadlocked for over two decades over Nagorno-Karabakh, which declared independence from Azerbaijan in 1991. The 1992-1994 war that followed pitted Azerbaijan’s armed forces against Nagorno-Karabakh rebels backed by the Armenian army. It ended with Nagorno-Karabakh’s de facto independence and a self-proclaimed government based in Stepanakert. Armenian forces also took effective control over seven regions adjacent to Nagorno-Karabakh.[fn]UN Security Council Resolutions 822, 853, 874 and 884, all adopted during the 1992-1994 war, as well as UN General Assembly Resolution 62/243 adopted in 2008, refer to these territories as occupied.Hide Footnote Tens of thousands died in the fighting. Although exact numbers are contested, well over 400,000 ethnic Azerbaijanis were displaced from the territories adjacent to Nagorno-Karabakh and some 40,000 from Nagorno-Karabakh itself.[fn]See “Всесоюзная перепись населения 1989” [Soviet Census 1989], which lists 440,000 inhabitants in total on those territories. Official Azerbaijani statistics count over 700,000 Azerbaijanis displaced from the adjacent territories, but also include descendants of those who initially fled. “On the districts bordering Armenia or Nagorno-Karabakh, territories of which are either occupied or affected by the Armenian armed forces”, official website of the State Committee for the Affairs of Refugees and Internally Displaced Persons of the Republic of Azerbaijan.Hide Footnote In addition, hundreds of thousands of Armenians from throughout Azerbaijan and Azerbaijanis from throughout Armenia fled their homes during the war.[fn]See “Soviet Census 1989”, op. cit., which lists a total pre-conflict Azerbaijani population in Armenia of 84,860 and a pre-conflict Armenian population in Azerbaijan of around 245,000, excluding around 145,500 Armenian living in the Nagorno-Karabakh Autonomous Oblast (NKAO). The Armenian government estimates that there are now more than 360,000 refugees from Azerbaijan. Also see “Azerbaijan: Analysis of Gaps in the Protection of Internally Displaced Persons”, UN High Commissioner for Refugees, October 2009, which estimates that 200,000 Azerbaijanis fled Armenia.Hide Footnote

Although a May 1994 ceasefire ended open conflict, peace has been elusive. Since the ceasefire, the conflict parties have reviewed and rejected several plans proposed by international mediators. Armenia has continued providing political, military and financial support to the breakaway region, which Baku views as Armenia-occupied Azerbaijani territory. Tension occasionally has led to clashes, the worst of them in the spring of 2016. Then, four days of fighting killed hundreds, although again exact numbers are disputed. It left Azerbaijan in control of slightly more territory in Nagorno-Karabakh and the adjacent territories than before. It also left the combatants thinking about a rematch.

Armenian and Azerbaijani leaders have taken steps to reverse what had seemed a slide toward a new war.

In the last eighteen months, however, Armenian and Azerbaijani leaders have taken steps to reverse what had seemed a slide toward a new war. Direct leadership contacts and communication channels between security personnel and political representatives in capitals have minimised flare-ups and casualties. Both countries’ leaders also agreed to launch humanitarian projects and support visits of relatives of detainees held in each other’s capitals as well as of journalists, the first of which occurred in November.[fn]“Leyla Abdullayeva answers the question of media regarding the mutual visits of journalists from Azerbaijan and Armenia”, official website of the Republic of Azerbaijan, 25 November 2019; “Answer by spokesperson of the MFA of Armenia on the question about the journalist exchange programme”, official website of the Ministry of Foreign Affairs of the Republic of Armenia, 26 November 2019.Hide Footnote This slight thaw marks a substantial shift. It is the first reversal in what had been a steady decline in relations since the April 2016 clashes.

When they are ready to come to the table, the parties will have a quasi-roadmap at hand. If, despite decades of negotiations, they have never settled on a peace plan, Baku and Yerevan have agreed to a framework for talks. It begins with the core principles of the Helsinki Final Act, which mediators and the parties endorsed during the Organization for Security and Co-operation in Europe (OSCE) Ministerial Summit in Madrid in 2007. These include refraining from the threat or use of force, preserving states’ territorial integrity, and protecting the equal rights and self-determination of peoples.[fn]“Fifteenth Meeting of the Ministerial Council 29 and 30 November 2007: Statements and Declarations by the Ministerial Council Decisions of the Ministerial Council”, OSCE, 30 November 2007; “Seventeenth Meeting of the Ministerial Council 1 and 2 December 2009: Statements and Declarations by the Ministerial Council Decisions of the Ministerial Council”, OSCE, 2 December 2009.Hide Footnote

Based on these principles, in 2009-2012 the OSCE Minsk Group, co-chaired by the U.S., Russia and France, proposed six additional elements as a guide for talks, which neither Baku nor Yerevan has ever publicly rejected:[fn]Since 2009, the de facto authorities of the Nagorno-Karabakh entity voiced repeated concerns over the elements. For example, see “Statement of the MFA of NKR”, official website of the Ministry of Foreign Affairs of the Republic of Artsakh, 15 July 2009.Hide Footnote

  • Creating an interim status for Nagorno-Karabakh that provides guarantees for security and self-governance;
     
  • Returning the territories surrounding Nagorno-Karabakh to Azerbaijani control;
     
  • Building a corridor linking Armenia to Nagorno-Karabakh;
     
  • Determining the final legal status of Nagorno-Karabakh through a legally binding expression of will;
     
  • Upholding the right of all internally displaced persons (IDPs) and refugees to return to their former places of residence; and
     
  • Granting the parties international security guarantees that would include a peacekeeping operation.[fn]“Statement by the OSCE Minsk Group Co-Chair countries”, OSCE, 10 July 2009.Hide Footnote

If the parties appeared to accept these elements, they understood them differently. Armenia viewed “interim status” warily, but agreed because it expected that the proposed referendum, held in Armenian-majority areas, would culminate in Nagorno-Karabakh’s independence. Even if some ethnic Azerbaijani IDPs were to return, their numbers would be insufficient to sway the result.[fn]Crisis Group interviews, current and former Armenian officials, analysts, December 2017-March 2019.Hide Footnote For its part, Azerbaijan assumed that interim status, which would involve Azerbaijani rule in some form for as long as it lasted, could be indefinite – as no deadline was set for the referendum – or at least offer an opportunity for Azerbaijanis to reintegrate and, officials say, win over the Armenian population.[fn]Crisis Group interview, former senior Azerbaijani official, Baku, March 2019.Hide Footnote Baku also saw an opportunity to restore control over the adjacent territories “without a shot being fired”.[fn]President of Azerbaijan: ‘Our patience also has limits’”, Euronews, February 2010; Crisis Group interviews, current and former Azerbaijani officials, analysts, May 2018-March 2019.Hide Footnote

Given the distance between the two sides’ understanding of where the six elements would lead, it is perhaps not surprising that progress since has stalled. There is no agreement on interim, let alone final, status, the adjacent territories remain under Armenian control, IDPs are still displaced and no international peacekeepers or monitors have deployed. To break out of this deadlock, the parties must find ways to resolve three main areas of disagreement:

  • the fate of seven adjacent regions in which thousands of ethnic Armenians have settled and which are under the effective control of the de facto authorities in Nagorno-Karabakh;
     
  • the mandate and composition of an international peacekeeping or observer mission that could buttress any political agreement; and
     
  • Nagorno-Karabakh’s ultimate status.

Thus far, all efforts to tackle the three issues have sought to do so in toto. The three are interdependent: resolution of the conflict will require a single comprehensive agreement, not piecemeal understandings. But failure to look at each issue independently has hampered discussion of any of them.

This report examines these three issues with an eye to finding ways to break the impasse. It is based on interviews with local and international officials, experts, and members of the general population residing in Armenia, Azerbaijan and Nagorno-Karabakh and the adjacent areas in 2017-2019. It factors in the parties’ legal and political positions, but does not advocate any particular stance in the ongoing dispute, simply aiming to help the parties overcome a debilitating stalemate and take advantage of a slight thaw in relations. Geographical names reflect the usage of the pre-war years in the 1990s. The report acknowledges that the current population of the de facto Nagorno-Karabakh entity does not include ethnic Azerbaijani IDPs forced to flee the territory during the 1992-1994 war.

Crisis Group's expert Zaur Shiriyev (seated) meets with Azerbaijani IDPs living close to the Line of Contact. CRISISGROUP/Jorge Gutierrez Lucena

II. Territories Adjacent to Nagorno-Karabakh

In 1994, Armenian forces took control of the seven Azerbaijani districts adjacent to Nagorno-Karabakh. In five (Jebrail, Zangelan, Kubatly, Lachin and Kelbajar) they took full control, while seizing only parts of Agdam and Fizuli. Settlers soon followed. Today, they comprise around 11 per cent of the combined population of the adjacent areas and Nagorno-Karabakh itself – the territories that Azerbaijan views as occupied by Armenia and their numbers continue to grow.[fn]Estimate based on information from the current and former de facto officials, who consider that 147,000 people live in the areas under their control; about 15,000 live west and south west of Nagorno-Karabakh, while around 2,000 live in smaller settlements south and east of the region. See “Demographic handbook of Artsakh 2019”, National Statistical Service of the Republic of Artsakh, 2019. This information was cross-checked with other public sources; for more details, see Appendix C.Hide Footnote They represent a major challenge for both Armenia and Azerbaijan. Neither country has publicly expressed willingness to discuss the settlements as part of peace talks, even as Azerbaijan continues to demand the return of those territories.[fn]Crisis Group interviews, officials, Yerevan, Stepanakert, Baku, 2017-1018.Hide Footnote

A. History

Before the war, the seven districts were populated predominantly by Azerbaijanis. This population fled during the fighting. Afterward, Armenian and de facto authorities in Stepanakert saw limited settlements as a way to establish control over strategically important territory, notably the one road connecting Armenia with Nagorno-Karabakh, which runs through the town of Lachin.[fn]Crisis Group interview, former de facto officials, Stepanakert and Yerevan, March-April 2018.Hide Footnote According to a former de facto official, a secret order issued by the de facto authorities, under Yerevan’s supervision, called on ethnic Armenians to settle in the town and a handful of nearby villages in order to control that road.[fn]Crisis Group interview, former de facto official, Yerevan, April 2018.Hide Footnote The de facto authorities felt that four settlements in Lachin district would suffice.[fn]Ibid.Hide Footnote

Some Armenian activists and war veterans had bigger plans, however. Instead of limiting settlements to Lachin, they argued that it was ethnic Armenians’ “moral right” to settle land that centuries ago was part of the Kingdom of Greater Armenia.[fn]

Many Armenian nationalists argue that these territories are part of Artsakh, a region in the Kingdom of Greater Armenia, which existed for almost 600 years starting in the 2nd century BC. They refer to history in general and to specific artefacts, sites and monuments of cultural and religious significance. Since 1995, de facto authorities have asserted different names for towns, villages and districts in these territories. Some were picked from Armenian history books, while others correspond to the names of Armenian towns and villages in eastern Turkey under the Ottoman Empire. Crisis Group interview, former de facto senior official, Yerevan, April 2018; Crisis Group interviews, leaders of resettlement process, Lachin and Kelbajar districts, Stepanakert, December 2017, March 2018. Also see fn 28.

Hide Footnote Through media campaigns and Armenian charities, they encouraged ethnic Armenians to move to not only the town of Lachin and nearby villages but all the adjacent territories. Areas between Armenia and Nagorno-Karabakh – namely Lachin, Kelbajar, Kubatly and Zangelan – and along the roads connecting Stepanakert to Agdam district saw the most substantial growth.[fn]Crisis Group interviews, former de facto senior official and leaders of resettlement process, Yerevan, Stepanakert, Lachin and Kelbajar districts, December 2017, March-April 2018.Hide Footnote By 1995, Lachin district housed twelve settlements instead of the planned four.[fn]There are no signs that military authorities took part in fostering the settlement process. The first military units were deployed in the main towns of the adjacent districts. Their bases remain fenced in and personnel rotate on a regular basis. No military personnel have permanent homes in any nearby settlements. Crisis Group interviews, December 2017, March 2018. Whose army is present in the conflict region is disputed. Stepanakert insists that these are its troops and that any linkages with Armenian military personnel or institutions take place only through special bilateral agreements. Because Baku rejects the possibility of an independent Karabakh force, it views military personnel in the area as occupying Armenian forces.Hide Footnote By 2004, there were about 13,500 permanent residents in dozens of new villages across the four districts between Nagorno-Karabakh and Armenia.[fn]Crisis Group interviews, former de facto officials, leaders of resettlement process, settlers, December 2017, April-March 2018.Hide Footnote

The settlers arrived at the ruins of Azerbaijani villages destroyed during the war. In some areas, the Armenian forces had burned homes and other infrastructure and mined the land to prevent Azerbaijanis from returning.[fn]Crisis Group interviews, Armenian veterans, December 2017.Hide Footnote Most settlers were already socially or economically vulnerable. The majority were ethnic Armenians displaced from neighbouring regions of Azerbaijan during the conflict or migrants from nearby mountainous areas of Armenia in search of free housing and land.[fn]De facto authorities have registered up to 30,000 people as “Armenian refugees from Azerbaijan”. Another 60,000 ethnic Armenians are considered IDPs by Stepanakert as they come from Shahumyan district. This is a district in Azerbaijan where Armenians have a long history. De facto authorities consider it a part of Nagorno-Karabakh “occupied by Azerbaijan”. Crisis Group interviews, de facto officials and civil society representatives, March 2018. The 2005 Report of the OSCE Fact-Finding Mission also mentions victims of 1988 Armenia’s earthquake among the new settlers; see “Report of the OSCE Fact-Finding Mission (FFM) to the occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK)”, OSCE, 2005.Hide Footnote

Yerevan strongly opposed attempts to settle the surrounding territories except for the Lachin road, to which “no Azerbaijani was going to return anyway”.

The settlements, especially those outside Lachin, made the Armenian government nervous. While some Armenian charities offered limited help with relocation costs, Yerevan refused to provide direct assistance for fear of international criticism and Azerbaijani legal action.[fn]Crisis Group interviews, settlers and former de facto officials, Stepanakert and Yerevan, December 2017, March-April 2018. Armenian leaders have never provided direct support to settlements. But Yerevan has provided budget support to Stepanakert since the 1990s, part of which the latter has used to finance the settlements since 2006. For details see Appendix C.Hide Footnote Several of those who founded settlements say that Yerevan even tried to prevent them doing so.[fn]Crisis Group interviews, founders of settlements and former de facto officials, Stepanakert and Yerevan, March-April 2018.Hide Footnote One former de facto official who sought financial support from private sources in Yerevan to improve living conditions in Zangelan and Kubatly reported consistent obstacles throughout his tenure, which lasted into 2004. Change, he said, came only after he left office and Stepanakert took full control of the territories in 2006.[fn]Crisis Group interview, former de facto official, Yerevan, April 2018.Hide Footnote A politician with close links to the Armenian leadership of the 1990s confirmed that Yerevan strongly opposed attempts to settle the surrounding territories except for the Lachin road, to which “no Azerbaijani was going to return anyway”.[fn]Crisis Group interview, Armenian politician, Yerevan, July 2018.Hide Footnote

With limited resources, settlers throughout the 1990s lacked proper construction materials or equipment. To repair schools and other public buildings, they tried to raise private funds locally and in Armenia.[fn]Crisis Group interviews, settlers, Lachin and Kubatly districts, December 2017.Hide Footnote The settlements were isolated, with minimal access to public goods or services such as electricity or telephone connections.[fn]In some settlements, residents took part in local parliamentary elections organised by de facto authorities since 1997. In 1998, de facto authorities mentioned the adjacent territories in a law “on administrative division”; see “ԼՂՀ ՎԱՐՉԱՏԱՐԱԾՔԱՅԻՆ ԲԱԺԱՆՄԱՆ ՄԱՍԻՆ” [About NKR’s Administrative Division], official website of the National Assembly of the Republic of Nagorno-Karabakh, adopted on 16 June 1998. In 2000, the de facto parliament invited representatives of the settlements to take part in its sessions as “observers”. Crisis Group interviews, current and former de facto officials, member of de facto parliament, former and current heads of settlements, Stepanakert, Lachin, Kubatly, Zangelan and Kelbajar districts, December 2017, March 2018.Hide Footnote

In 1998, de facto authorities in Stepanakert began to exert control over the settlements, starting in Lachin and continuing with Kelbajar, though their investment in those areas remained minimal.[fn]Crisis Group interviews, former de facto officials, Yerevan and Stepanakert, March-April 2018. In 1998, de facto authorities assigned new names to the main towns and administrative units. Lachin town was renamed Berdzor. Lachin, Kubatly and Zangelan districts were merged into one administrative unit called Kashatagh. Zangelan was renamed Kovsakan, Kubatly to Sanasar. Kelbajar town was renamed Karvachar, and the district was renamed Shahumyan to recall the territory to the north of Nagorno-Karabakh, which the de facto leadership considers “occupied by Azerbaijan”. Agdam merged with a new Askeran district and was renamed Akna. Fizuli became part of Martuni district and was renamed Varanda. Jebrail district was merged with Hadrut and its main town renamed Jrakan. For some of the names, see “About NKR’s Administrative Division”, op. cit.Hide Footnote De facto officials deployed, and the authorities took on partial salary payment for local teachers, workers responsible for public cultural events, and nurses (of whom there are few, and only in some settlements).[fn]The 1999 budget law already included an explicit reference to expenditure in Kelbajar, see “ԼՂՀ 1999Թ. ՊԵՏԱԿԱՆ ԲՅՈՒՋԵԻ ՄԱՍԻՆ” [About 1999 State Budget of NKR], official website of the National Assembly of the Republic of Nagorno-Karabakh; “ԼՂՀ ՕՐԵՆՔԸ ԼՂՀ 1999 ԹՎԱԿԱՆԻ ՊԵՏԱԿԱՆ ԲՅՈՒՋԵԻ ՄԱՍԻՆ” [Decree to the Law on 1999 State Budget of NKR], Database of the Ministry of Justice of the Republic of Nagorno-Karabakh, 30 December 1998.Hide Footnote Local residents did not always welcome the new authorities.[fn]Crisis Group interviews, settlers and former and current heads of settlements, Kelbajar district, December 2017.Hide Footnote One of the first de facto police officers deployed to Kelbajar reports that due to hostility from inhabitants he spent several nights in his car instead of asking for shelter at a local house.[fn]Crisis Group interview, de facto official, Kelbajar, December 2017.Hide Footnote Even if other districts were more welcoming, Stepanakert’s involvement failed to bring what settlers wanted most: real financial support.[fn]Crisis Group interviews, settlers, Kelbajar, Lachin, Kubatly and Zangelan districts, December 2017.Hide Footnote

International attention to the settlements continued to make Yerevan uneasy. After a 2005 fact-finding mission, the OSCE Minsk Group co-chairs explicitly called for an end to new settlements.[fn]“Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the occupied territories of Azerbaijan surrounding Nagorno-Karabakh”, OSCE, 24 March 2011; “Executive summary of the Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the occupied territories of Azerbaijan surrounding Nagorno-Karabakh”, OSCE, October 2010.Hide Footnote They also urged the parties to reach agreement on the territories’ fate, which they saw as the only way to avoid settlers laying down deeper “roots and attachments to their present places of residence”.[fn]“Letter of the OSCE Minsk Group co-chairs to the OSCE Permanent Council”, p. 3.Hide Footnote An agreement, they thought, could also make it possible to end the settlers’ “miserable and isolated” living conditions.[fn]Ibid.Hide Footnote One former de facto official told Crisis Group that these statements led Yerevan to instruct Stepanakert to halt even the basic financial support it was providing. “Because of [the co-chairs], people were spending winters with holes in their roofs, and I could not help them”, he said.[fn]Crisis Group interview, former de facto official, Yerevan, April 2018.Hide Footnote Indeed, many former and current de facto officials and politicians continue to blame the OSCE Minsk Group for, in their view, forcing settlers to live for years in poverty.[fn]Crisis Group interviews, former and current de facto officials, politicians, Kelbajar, Lachin, Kubatly and Zangelan districts, Stepanakert, Yerevan, December 2017, April 2018, October 2019.Hide Footnote

This changed in 2006, when the de facto government in Stepanakert adopted a constitution claiming full but temporary jurisdiction over the adjacent territories and thus the settlements.[fn]Article 142 of the Nagorno-Karabakh constitution says: “Until the restoration of the state territorial integrity of the Nagorno-Karabakh Republic and the adjustment of its borders public authority is exercised on the territory under factual jurisdiction of the Republic of Nagorno-Karabakh”.Hide Footnote The constitution was recognised only by the de facto Nagorno-Karabakh authorities. Nonetheless, it provided a framework through which Stepanakert began to increase services throughout the surrounding settlements.[fn]One popular program among this predominantly poor population aims to increase birth rates through financial allowances and special banking preferences for each child born to a family in the de facto region: after the birth of a fifth or sixth child, families often receive free housing. Some families in the settlements with four or more children have received help from the de facto government with housing repairs or been given a new home. See the de facto government’s decrees to this effect on its official website.Hide Footnote

Perhaps most significantly, Stepanakert’s greater involvement after 2006 has jumpstarted agriculture in the area.[fn]The program officially started with the 2007 establishment of the agriculture fund, which offered farmers preferential credits for grain and fertilisers. New technology and equipment helped increase yields. Produce was sold inside the de facto region, as well as in Armenia. The program led to a sharp increase in demand for agricultural land, with the size of cultivated land tripling in ten years. About 80 per cent of the economically active population is now engaged in farming, which is the leading source of employment after the local army. Crisis Group interviews, senior de facto official, de facto officials and parliamentarians, Stepanakert, December 2017, March 2018. Also see “Made in Artsakh: Как бизнесмены подняли с колен непризнанную республику” [Made in Artsakh: How businesspeople raised the unrecognised republic from its knees], Sekret Firmy, 14 October 2015.Hide Footnote Although agricultural programs are meant to span the whole region, they have little success in Nagorno-Karabakh’s mountainous terrain. In the settlements, however, agriculture boomed. This helped improve living standards and attract new settlers. Entrepreneurs began to lease large plots of land, employing other settlers to work them. Over time, settlers began to organise their own plots. “Nine years ago, when we first arrived, we worked only on 150 hectares of land”, said a settler in Kubatly. “Now there is not a piece of land to spare”.[fn]Crisis Group interviews, settlers in Kubatly district, December 2017.Hide Footnote

Baku has closely followed these developments. Since the 2005 OSCE fact-finding mission, Azerbaijan has increasingly emphasised the growing settlements and illegal economic activity at international organisations and in bilateral discussions with foreign partners.[fn]Illegal settlement of Armenians in the occupied territories of Azerbaijan by Armenia as a gross violation of the principles of international law”, Council of Europe (CoE), 28 June 2006; “The situation in the occupied territories of Azerbaijan”, UN General Assembly (UNGA) 62/243, 25 April 2008; “Annex to the letter from the Permanent Representative of Azerbaijan to the United Nations addressed to the Secretary-General”, 27 April 2010; “Speech by Ilham Aliyev at the 65th session of the United Nations General Assembly”, official website of the President of the Republic of Azerbaijan, 23 September 2010.Hide Footnote Since 2016, the Azerbaijani foreign ministry has disseminated regular reports and satellite imagery of settlement expansion.[fn]For more details, see “Illegal economic and other activities in the territories of Azerbaijan occupied by Armenia”, Ministry of Foreign Affairs of the Republic of Azerbaijan, 2016; and “Illegal activities in the territories of Azerbaijan under Armenia’s occupation: Evidence from satellite imagery”, Report by Azercosmos OJSCo and the Ministry of Foreign Affairs of the Republic of Azerbaijan, 2019.Hide Footnote Some Azerbaijani officials suggest that the settlements could be cause for future sanctions and legal action against Armenia.[fn]Crisis Group interviews, officials, Baku, May 2018-March 2019. Also see “Azerbaijan calls on PACE to impose sanctions on Armenia”, Azernews, 23 June 2015; “Azerbaijani Embassy in Washington calls on the international community to consider sanctions against Armenia”, New Azerbaijan Party website, 6 August 2014.Hide Footnote

B. The Settlements Today

Yerevan’s apprehension, Baku’s protests and the OSCE Minsk Group’s appeals have not constrained the settlements’ growth. Today, about 17,000 ethnic Armenians live in the territories between Armenia and Nagorno-Karabakh.[fn]The population of the Nagorno-Karabakh conflict region is about 140,000. See “The Results of 2015 population census of the Republic of NKR”, National Statistical Service of the Republic of Artsakh. Before the war in 1990s, the population numbered around 190,000. See “Soviet Census 1989”, op. cit. For more details on demography in the adjacent territories, see Appendix C.Hide Footnote Among them are some 4,000 children and young people born since 1994, a faster rate of growth than in Nagorno-Karabakh itself.[fn]De facto officials and politicians argue that about 10,000 children were born in the adjacent territories. Crisis Group could not find evidence for this claim. According to the statistics of the de facto authorities in 2004-2018, 3,889 children were born in the most populated districts of Kelbajar, Kubatly, Lachin and Zangelan. Crisis Group estimates based on figures published by the local statistical office. See “The Demographic Handbook of Artsakh 2019”, op. cit.; “The Regions of NKR in Figures 2010-2016”, The National Statistical Service of the Republic of Artsakh, 2016; “The regions of NKR in figures 2008-2014”, The National Statistical Service of the Republic of Artsakh, 2015; “The regions of NKR in figures 2003-2009”, The National Statistical Service of the Republic of Artsakh, 2010. For more demographic details, see Appendix C.Hide Footnote

Life remains tough in the settlements. Settlers have restored water and power supplies, but public transport between settlements and other destinations remains non-existent. The trip from either Stepanakert or any of the closest towns in Armenia along the remains of winding, damaged roads to settled areas can take up to a day.[fn]Crisis Group interviews, settlers in Zangelan, Kubatly and Kelbajar districts, December 2017.Hide Footnote With public hospitals far away and bad roads limiting access to emergency health care providers, people have adapted. Home births, for example, are typical.[fn]Ibid.Hide Footnote While many settlers are displaced victims of war, they have been unable to receive foreign aid because the settlements are illegal according to international law.[fn]Crisis Group interviews, representatives of international humanitarian organisations, March 2018.Hide Footnote

But if public transport, connectivity and health-care access have not much improved, the agricultural sector continues to expand rapidly.[fn]Crisis Group interviews, settlers in Zangelan, Kubatly and Kelbajar districts, December 2017.Hide Footnote Lachin, Kubatly and Zangelan districts dominate local agricultural production, accounting for more than one quarter of Nagorno-Karabakh’s and the adjacent territories’ output (for both export and local consumption) in 2016.[fn]See “The regions of NKR in figures 2000-2016”, op. cit.Hide Footnote Indeed, farming and the construction of small- and medium-sized hydroelectric power stations in the adjacent territories have significantly contributed to Nagorno-Karabakh’s economy and the de facto government’s revenues.[fn]For more details on agriculture in the adjacent territories, see Appendix C.Hide Footnote

To maintain growth driven by agricultural expansion, Stepanakert now plans to start developing previously unsettled areas.[fn]Crisis Group interviews, de facto leadership, Stepanakert, December 2017, March 2018.Hide Footnote Parts of Jebrail and Fizuli districts, to the south and east of Nagorno-Karabakh, had been largely left settlement-free, possibly due in part to pressure from Yerevan, which sought to leave itself the option of a peace deal that would return those areas to Baku’s control.[fn]Ibid.Hide Footnote Increasing demand for land, however, has made de facto officials and the Nagorno-Karabakh population more determined to maintain control of those areas. Even those who once saw the territory as subject to a bargain now want to hold on to it. Settlers have cultivated unsettled land along all major roads in the territories, up to the rear positions of Armenian troops along the line of contact with Azerbaijani forces. Areas near the Araks River on the Iranian border have proven particularly promising for farming.[fn]Crisis Group interviews, de facto leadership and parliamentarians, Stepanakert, December 2017 and March 2018.Hide Footnote

In October 2017, Nagorno-Karabakh’s de facto president, Bako Sahakyan, identified expanding the settlement of the adjacent territories as a priority for 2017-2020.[fn]“Speech of President Sahakyan at the enlarged consultation dedicated to the key points of the 2017-2020 Artsakh Republic President Program”, official website of the President of the Republic of Artsakh, 16 October 2017.Hide Footnote In 2018, his government allocated $800,000 in the de facto entity’s annual budget to populate and develop new settlements, the first time that funds were earmarked for this purpose.[fn]Crisis Group interviews, de facto leadership and parliamentarians, Stepanakert, December 2017, March 2018. See “Արցախի Հանրապետության 2018թ. պետական բյուջեի մասին” [About State Budget of Artsakh government for 2018], Ministry of Finance of the Republic of Artsakh, 2018. The 2019 budget does not include a similar line. See “Արցախի Հանրապետության 2019թ. պետական բյուջեի մասին” [About State Budget of Artsakh government for 2019], Ministry of Finance of the Republic of Artsakh, 2019.Hide Footnote In early 2019, it unveiled plans for a new settlement in Fizuli with several rows of houses close to fertile farmlands.[fn]Արաքսի հովտում նոր գյուղ է ձևավորվում” [A new village getting founded in the Araks valley], Armenia Public TV on YouTube, 28 February 2019.Hide Footnote At the time of writing, however, no new settlement was reported either in Fizuli or Jebrail.

If the Armenian government decides [to transfer the territory to Azerbaijani control], I am ready to take up arms against them

As settlements grow, so does opposition to returning the lands to Azerbaijan.[fn]For instance, de facto officials, analysts and civil activists voiced similar sentiments during Crisis Group interviews in Stepanakert in July 2015.Hide Footnote Stepanakert and the settlers increasingly question any sort of peaceful coexistence with ethnic Azerbaijanis.[fn]Crisis Group interviews, de facto officials and politicians, Stepanakert, December 2017, March 2018.Hide Footnote Many settlers say that they have lived for twenty years in extremely tough conditions, without financial support, and will fight to stay. “If the Armenian government decides [to transfer the territory to Azerbaijani control], I am ready to take up arms against them”, said an Armenian villager in Lachin district.[fn]Crisis Group interview, resident of settlement, Lachin district, December 2017.Hide Footnote The Armenian diaspora’s backing, which has kept these communities afloat in the absence of other assistance, strengthens settlers’ belief that these territories are “primordially Armenian lands”.[fn]Crisis Group interviews, de facto officials, politicians, experts, Stepanakert and Yerevan, December 2017, March-April 2018. See comment by the representative of the Tufenkian Foundation, an Armenian diaspora organisation that has been the main provider of financial support to projects in the adjacent areas, in “For Armenians, they’re not occupied territories – they’re the homeland”, Eurasianet, 6 August 2018. For more detail on the support of the Armenian diaspora organisations, see Appendix C.Hide Footnote April 2016’s outbreak of fighting hardened these positions.

Nor is it clear that settlers would be willing to move elsewhere if offered compensation, as some Armenian officials and politicians suggest.[fn]Crisis Group interviews, former officials and politicians, Yerevan, December 2017, April 2018.Hide Footnote A minority might: “If people ask us to leave, we will not stay”, said a settler in Jebrail district.[fn]Crisis Group interview, resident of settlement, Jebrail district, December 2017.Hide Footnote But given the settlements’ growing economic importance, the investments settlers have made in creating homes and communities for themselves, and the narrative that the land is Armenian, financial incentives may not suffice. One diplomat suggested that attempts at resettlement would prompt a “tsunami of protest” from both settlers and inhabitants of Nagorno-Karabakh itself, to say nothing of Armenian nationalists at home and within the diaspora.[fn]Crisis Group interview, diplomat, Tbilisi, December 2017.Hide Footnote He cautioned that the issue of settlements could become a Pandora’s box: adding one more insurmountable issue to an already long list.[fn]Crisis Group interview, diplomat, Tbilisi, December 2017.Hide Footnote For Armenian officials pessimistic that peace talks will get anywhere, avoiding any discussion of the settlements, and thus allowing their growth and postponing decisions on their fate, is preferable to trying to resolve the question now.[fn]Crisis Group interviews, former and current officials, Yerevan, March 2018, July 2018, October 2019.Hide Footnote

A legal dimension further complicates the situation. In 2015, the European Court on Human Rights ruled that Armenia exercises effective control over the territory of Nagorno-Karabakh and the surrounding areas and therefore bears responsibility for them under the European Human Rights Convention.[fn]“Case of Chiragov and others v. Armenia”, European Court of Human Rights, 16 June 2015. The European Court of Human Rights issued two similar decisions in Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan, which discussed the issue of financial compensation to displaced people as a result to the ongoing conflict. Those decisions held that due to a lack of political solution to the Nagorno-Karabakh conflict, the applicants should be awarded compensation as just satisfaction in respect of pecuniary and non-pecuniary damage.Hide Footnote The case has increased Armenia’s concern that discussing settlements would amount to an admission of occupation, and thus its legal responsibility for Nagorno-Karabakh and the adjacent districts.[fn]Crisis Group interviews, former and current officials, Yerevan, March 2018, July 2018, October 2019.Hide Footnote

Since 2016, Baku has intensified international outreach to warn countries against contacts with and aid or investment to settlements in the adjacent areas. It has gathered satellite imagery documenting the settlements’ expansion and hired lawyers to build its case for how they violate international law.[fn]“Baku calls foreign companies to avoid illegal activity at the occupied territories”, Turan Agency, 23 July 2018.Hide Footnote The Azerbaijani government is now considering filing lawsuits in the European Court of Human Rights against the Armenian government and individuals engaged in the regions. It hopes that victory in these cases will lead to asset freezes and other penalties against those responsible.[fn]Crisis Group interview, senior officials, Baku, November 2019.Hide Footnote While Yerevan does not fear that such cases or sanctions would substantially harm the Armenian economy, it does worry that the cases may bolster Azerbaijan’s stance that the territories are occupied.[fn]Crisis Group interviews, senior officials, Yerevan, October 2019.Hide Footnote

C. Steps to More Constructive Talks on Settlements

Space for starting any conversation on settlements is limited. Azerbaijan’s current position is clear: the settlements are illegal, and their continuation is creeping expropriation of Azerbaijani territory.[fn]“Speech by Ilham Aliyev at the 65th session of the United Nations General Assembly”, op. cit.; “Letter dated 10 April 2017 from the Permanent Representative of Azerbaijan to the United Nations addressed to the Secretary-General”, op. cit.Hide Footnote Azerbaijani officials fear that opening talks could implicitly signal recognition of the settlements. Baku wants to link any discussion of the settlements to the return of the adjacent territories and IDPs.[fn]Crisis Group interview, senior official, Baku, November 2019.Hide Footnote Yerevan and Stepanakert usually dispute that the territory in question is occupied; they also cite security requirements as their rationale for maintaining control of the land.[fn]Crisis Group interviews, officials and politicians, Yerevan and Stepanakert, 2017-2019.Hide Footnote For Yerevan, any talks must be tied to Azerbaijani compromises including on Nagorno-Karabakh’s status. As noted, it also fears that any talks in which it is perceived as representing Stepanakert’s interests regarding the settlements could be read as a tacit admission of occupation, bolstering Azerbaijani claims in international courts regarding the settlements and potentially serving as fodder in a future Azerbaijani campaign to convince other states to impose sanctions against Armenia.[fn]Crisis Group interviews, officials and politicians, Yerevan, December 2017, April 2018.Hide Footnote

But if prospects for substantive discussions between Armenia and Azerbaijan regarding the settlements appear remote, failure to talk incurs mounting risks. The gap is widening between the sides: Azerbaijanis believe that the territories could be easily returned, while Armenians are increasingly convinced that they should not be. Neither side discusses how Armenian settlers could coexist with returning Azerbaijani IDPs; absent such a dialogue, there is no hope of reversing resistance to a possible compromise within those two groups.

One option for paving the way for more substantive talks might be for Yerevan and the de facto authorities to cease settlement construction in return for Baku pledging to abstain from advocating settlement-related sanctions or filing any related claims in international courts against Armenia. This moratorium could be time-delimited (perhaps for one year) to provide a window for talks to show progress. Without it, the settlement expansion that Stepanakert plans would create more obstacles to a resolution, further harden positions and bolster constituencies against peace in both countries.

Such an arrangement would have advantages for Yerevan. As things stand, new settlements strengthen the belief among settlers and Armenian nationalists that no territory can be given up. By turning a blind eye to them, Yerevan sets the stage for the problem to grow and complicate any eventual discussions. Building new settlements also risks making the situation on the ground even more unmanageable as existing ones are plagued by poverty, dilapidated housing and shoddy infrastructure.

Yerevan would likely have to apply substantial pressure to persuade the de facto leadership to accept a one-year moratorium on further settlements, but the de facto entity’s dependence on Yerevan gives it considerable influence. Armenia is Nagorno-Karabakh’s main security provider and represents it in the official talks with Azerbaijan. Yerevan also supplies around half of Stepanakert’s budget and remains the main market for Nagorno-Karabakh’s products.[fn]For more details, see Appendix C.Hide Footnote

Azerbaijani officials understandably fear that accepting an arrangement ... could signal that Baku accepts existing settlements.

For its part, Baku would likely have strong reasons to reject reciprocal steps along these lines, but there might be ways to address its concerns. Azerbaijani officials understandably fear that accepting an arrangement whereby settlement expansion ceases in return for a freeze on sanctions or legal action could signal that Baku accepts existing settlements. They may also sense they have international winds in their sails given their chairmanship of the Non-Aligned Movement, a grouping set up for nations that backed neither the U.S. nor the Soviet Union during the Cold War, and support for Azerbaijan’s position on Nagorno-Karabakh from the Organisation of Islamic Cooperation.[fn]“The Aggression of the Republic of Armenia against the Republic of Azerbaijan”, Organisation of Islamic Cooperation Resolution No. 10/11, in “Resolutions on Political Affairs adopted by the Eleventh Session of the Islamic Summit Conference”, March 2008; “Cairo Final Communique of the Twelfth Session of the Islamic Summit Conference”, 6-7 February 2013; “OIC adopts two resolutions on Azerbaijan”, Azernews, 25 January 2018.Hide Footnote

But accepting a freeze does not mean accepting the settlements. Baku could make public statements reiterating its view that the settlements are illegal under international law even while pledging to put any plans for new sanctions or legal action on hold for a delimited time. This would signal that it does not accept the legality or continued existence of those settlements that are in place. Moreover, a freeze on settlements would serve Azerbaijan’s interests as much as those of Armenia. The settlement expansion threatens to make any prospective return of the adjacent territories harder and costlier for Azerbaijan.

Another option to help break the deadlock on settlements might be a comprehensive, independent assessment of the situation in the adjacent territories. This would in turn help counter misperceptions and potentially lay the groundwork for an informed discussion about those territories’ future. Past OSCE fact-finding missions, in 2005 and 2010, were intended to document the settlements’ existence. Both were brief, enjoyed limited access and lacked relevant expertise. In 2005, the team identified a small number of settlements and reported the destruction of infrastructure and high levels of poverty among the local population.[fn]“Report of the OSCE Fact-Finding Mission (FFM) to the occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK)”, OSCE, 28 February 2005.Hide Footnote As noted above, OSCE Minsk Group co-chairs recommended that Yerevan and Stepanakert prevent new settlements on the back of that report.[fn]Ibid.Hide Footnote The 2010 mission published only an executive summary, which echoed the 2005 findings. It called on “the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas”.[fn]“Executive summary of the Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the occupied territories of Azerbaijan surrounding Nagorno-Karabakh”, op.cit.Hide Footnote

In 2018, the question of an assessment resurfaced. First, at the January meeting of the Armenian and Azerbaijani foreign ministers, the OSCE Minsk Group co-chairs discussed a possible new mission.[fn]“Press Statement by the Co-Chairs of the OSCE Minsk Group”, OSCE, 18 January 2018.Hide Footnote Baku was supportive, hoping that an assessment would draw fresh international attention to the settlements and more support for Azerbaijan’s demand for the territories’ unconditional return.[fn]Crisis Group interview, senior Azerbaijani diplomat, Baku, May 2018.Hide Footnote Some de facto officials in Stepanakert were also positively inclined but, for their part, hoped an assessment would demonstrate that the territories’ immediate return was no longer feasible.[fn]Crisis Groups interviews, de facto officials, Stepanakert, December 2017, March 2018.Hide Footnote Yerevan never made its position public.[fn]Crisis Group interviews, officials, Yerevan, July 2018.Hide Footnote In late 2018, after the change in Armenian leadership, Baku proposed a fact-finding mission. This time, Yerevan conditioned a mission on a similar assessment in the relatively small territories of the Soviet-era Nagorno-Karabakh oblast currently controlled by Azerbaijan.[fn]These are parts of Martakert and Martuni regions of Nagorno-Karabakh that both Armenian and de facto authorities consider “occupied” by Azerbaijan. In 2015, one of these territories started building a settlement for around 1,100 people, mainly IDPs from the Nagorno-Karabakh conflict zone. For more details about the settlement, see “Məcburi köçkünlər üçün yeni salınmış qəsəbədə Novruz şənliyi” [IDPs celebrate Novruz in a newly built settlement], official website of the Tartar Regional Administration, 20 March 2018. Stepanakert also claims authority over the former Shahumyan region, which was mainly populated by the ethnic Armenians, who fled the region during the war in 1990s. Stepanakert declared this region part of its territory when announcing independence in 1991.Hide Footnote Baku rejects this idea because, as one Azerbaijani official told Crisis Group: “Those territories are part of the internationally recognised lands of Azerbaijan and should undoubtedly be under Azerbaijan’s legal authority”.[fn]Crisis Group interview, senior Azerbaijani official, November 2019.Hide Footnote

In principle, a new, comprehensive survey of the facts on the ground could prove valuable to all sides. By providing a neutral outside perspective, the assessment could give Yerevan, Baku and Stepanakert a shared understanding of realities and constraints on the ground and help them look for pragmatic solutions that would best serve those affected by their decisions. The problem is that the disagreement between the two sides on an assessment’s purpose for now appears unbridgeable. For Armenia and the de facto authorities, it would have to focus primarily on settlers’ needs – their livelihoods, access to health care and education and other aspects of their socio-economic well-being – and thus potentially open up the area to international humanitarian organisations that for now do not work in the settlements.[fn]Representatives of two such organisations told Crisis Group they would be ready to do so if Armenia and Azerbaijan reached an agreement, endorsed by international mediators, to give them access. Crisis Group interviews, representatives of international humanitarian organisations, Yerevan, Tbilisi, March and November 2018, January 2019.Hide Footnote Azerbaijan rejects an assessment with that focus, fearing it would solidify the settlements’ existing status. For Baku, the main purpose of an assessment should be to draw international attention back to the settlements and their illegality and pave the way for displaced Azerbaijanis to return.[fn]According to a senior Azerbaijani official, a new survey must assess “the factual situation in order to prepare for the eventual safe and dignified return of Azerbaijani IDPs and in accordance with UNGA Resolution 62/243, for ‘creating appropriate conditions for this return, including the comprehensive rehabilitation of the conflict-affected territories’”. Crisis Group interview, senior Azerbaijani official, Baku, November 2019.Hide Footnote

While for now it appears unlikely that a way through exists, the co-chairs could continue to explore options with the two sides to see if there is some space for compromise.

Armenians in the Ishkhanadzor settlement on the main road between Zangelan and Kubatly districts. It is one of the biggest and fastest growing settlements in the region. All rights reserved

III. Prospects for an International Mission

Proposals for an international peacekeeping or monitoring mission to Nagorno-Karabakh are as old as the peace talks themselves. Here, too, breakdowns in communication have stymied useful discussions. Four questions pertaining to an international mission are relevant. The first concerns any potential mission’s mandate, including whether it would be military or civilian and whether it would deploy before or after a peace agreement. The second relates to the role of the OSCE’s HLPG, established after the 1992-1994 war to explore peacekeeping options. The third involves a potential expansion of the regional Office of the Personal Representative of the OSCE Chairman-in-Office (PRCiO), established in 1995. The last concerns Russia’s role.

A. Mandate and Makeup

The main questions concern what an international mission would do – whether helping reduce risks of violence even absent a peace deal or deploying after a deal to monitor or enforce its provisions – and, following from that, who it would comprise. Officials, military officers and civil society representatives in Yerevan, Baku and Stepanakert mostly oppose any foreign military deployment, which they fear could lead to “an occupying force”.[fn]Crisis Group interviews, political and military officials, Baku, Yerevan and Stepanakert, December 2017, March-May 2018, February-March 2019, October 2019.Hide Footnote Armenian, Azerbaijani and de facto officials tend to prefer that any mission be civilian-led, limited to observation and armed only for self-defence.

Agreement ends there, however. The two sides’ perspectives on a mission’s potential role and conditions under which it would deploy differ, based on their contrasting visions of peace. Yerevan and Stepanakert oppose any mission that would require Armenians to withdraw their military forces. They see themselves as guarantors of ethnic Armenians’ security and are unwilling to surrender that role to outsiders.[fn]Crisis Group interviews, de facto political and military officials, Stepanakert, December 2017, March 2018, October 2019. In its official statements, Armenia advocates for a heavily armed peacekeeping force in case of a peace agreement that would discuss a need for withdrawal of the Armenian troops from the conflict zone. (See Armenia’s “Statement on the 2019 Programme Outline”, PC.DEL/652/18, 22 May 2018; “Statement on the 2020 Programme Outline”, PC.DEL/476/19, 6 May 2019.) Crisis Group interview, official, Yerevan, October 2019.Hide Footnote They do, however, feel that a civilian observer mission deployed as peace talks continue would signal international commitment and build confidence.[fn]Crisis Group interviews, officials, de facto political and military officials, Stepanakert and Yerevan, December 2017, March-April 2018, February and October 2019.Hide Footnote

In contrast, Baku would like a mission to deploy as part of an agreement that includes the withdrawal of Armenian (whether they report to Yerevan or Stepanakert) forces. It supports the demilitarisation of the lines between Nagorno-Karabakh and the adjacent territories. That said, Baku is sceptical of any international mission absent agreements on the return of both the adjacent territories to Azerbaijani control and Azerbaijani IDPs to those territories and Nagorno-Karabakh itself, fearing that it could entrench the status quo. Were such agreements in place, a mission could monitor their implementation and undertake some policing functions in areas with mixed populations. This, Baku believes, could support “integration and peaceful coexistence” between Armenians and returning Azerbaijanis.[fn]Crisis Group interview, senior Azerbaijani diplomat, Baku, May 2018.Hide Footnote

B. The OSCE’s High-Level Planning Group

Although peacekeepers have never been deployed to Nagorno-Karabakh, the OSCE High-Level Planning Group, which reports annually to the OSCE Permanent Council, has had a nearly three decades-long mandate, approved at the 1994 OSCE Budapest Summit, to figure out how they could be.[fn]The office of the Personal Representative of the OSCE Chairperson-in-Office is the only international mission to promote peace in relation to Nagorno-Karabakh, but it consists of only six unarmed international members and has no mandate to monitor the conflict, let alone keep the peace. For more, see “Mandate of the Personal Representative of the OSCE Chairman-in-Office on the conflict dealt with by the OSCE Minsk Conference”, European Parliament, 15 June 2011 and the official website of the OSCE Minsk Group. The HLPG’s mandate, adopted by the Chairperson-in-Office (CiO) on 23 March 1995, tasks it: a) to make recommendations for the Chairperson-in-Office on developing as soon as possible a plan for the establishment, force structure requirements and operation of a multinational OSCE peacekeeping force; and b) to make recommendations on, inter alia, the size and characteristics of the force, command and control, logistics, allocation of units and resources, rules of engagement and arrangements with contributing states. See “Survey of OSCE Field Operations”, OSCE Secretariat, June 2019.Hide Footnote But the HLPG is handicapped by the absence of progress toward a peace agreement, without which peacekeeping scenarios and its operational requirements remain theoretical or outdated. Reportedly, the HLPG presented four options for a multinational peacekeeping mission in 1995, ranging from traditional armed peacekeeping to unarmed observer/monitoring missions. But the OSCE acknowledged soon after that “conditions which would allow the deployment of such an operation are […] still lacking”.[fn]“Fifth meeting of the Ministerial Council: Chairman’s summary decisions of the Budapest Ministerial Council Meeting”, OSCE, 8 December 1995.Hide Footnote

While successive OSCE Chairmen-in-Office have approved the HLPG’s work, some OSCE personnel worry about its capacity. Its annual papers are often repetitive and fail to reflect changing political realities.[fn]Crisis Group interviews, diplomats, Vienna, November 2017.Hide Footnote Former OSCE personnel argue that plans developed in the 1990s are also out of step with modern UN peacekeeping standards.[fn]Ibid.Hide Footnote The HLPG comprises nine people, based in Vienna. The number is a fraction of the 31 originally planned though the organisation is not fulfilling its full mission and could ramp up if needed.[fn]Crisis Group interviews, former OSCE personnel, Vienna, November 2017.Hide Footnote It reported on conditions in the conflict zone in 1995-1997 and, in 2007, prepared an estimate of the costs for a military peacekeeping and an unarmed observer mission.[fn]The group also updated its operating plans in 2007. “Annual Report 2008”, OSCE, 2009.Hide Footnote Today, however, HLPG staff rarely visit the area.[fn]Crisis Group interviews, OSCE current and former staff, Armenian, Azerbaijani and de facto officials, November 2017, May, July and October 2018, October and November 2019.Hide Footnote To do so, they require – and often fail to secure – explicit consent from Baku, Yerevan and Stepanakert.[fn]Yerevan and Stepanakert have consistently raised concerns over a Turkish former military officer on the HLPG staff because Turkey that openly supported Azerbaijan during the April 2016 escalation. Crisis Group interviews, officials and de facto officials, Yerevan and Stepanakert, December 2017, October and November 2019.Hide Footnote

For more than a decade, attempts to improve the HLPG’s capacity have been blocked by the fact that both sides link it to their wider disagreements, when they need not do so. Each has politicised the body’s work by seeking to use it as a tool to advance their agendas: in Azerbaijan’s case, to push its demand that Armenian forces withdraw from Nagorno-Karabakh and the adjacent areas; and in Yerevan and Stepanakert’s case, to force a discussion of Nagorno-Karabakh’s status mission.[fn]Crisis Group interview, official, Yerevan, October 2019.Hide Footnote This has hobbled the body’s ability to provide the technical expertise needed to support discussions of new security arrangements for populations living in the conflict zone to support the peace process. Neither Yerevan nor Baku has called for the body’s dissolution, for fear of appearing the spoiler. Yet both sides voice frustration with its functioning, suggesting an opening for agreeing to reform efforts by the HLPG’s own staff.[fn]Crisis Group interviews, OSCE, Armenian and Azerbaijani former and current officials, Vienna, Tbilisi, Yerevan, Baku, November 2017, May and October 2018, July and October 2019.Hide Footnote

The OSCE, co-chairs and parties to the conflict could take steps to make the HLPG more useful. They could grant it the necessary access and resources and charge it with a time-delimited (perhaps one year) task of defining an updated set of scenarios and options for international peacekeepers or monitors. The resulting report would be provided to the OSCE, co-chairs and parties. The latter should then disseminate it and foster expert debate in Baku, Yerevan and Stepanakert. Updated plans would allow all involved to assess the value and feasibility of an international mission, whether before or after a final peace agreement is defined. For its work in Nagorno-Karabakh and the adjacent areas, the HLPG would need to cooperate with the OSCE’s Office of the PRCiO, which has unrestricted access to the de facto authorities in the region.

C. The OSCE’s Office of the PRCiO

Another modest step forward could be for the parties to reach agreement on an increase of personnel in the Personal Representative’s office, which is responsible for monitoring along the Line of Contact and the Armenia-Azerbaijan border, and other trust-building measures.[fn]For the full list of responsibilities of the PRCiO, see “Mandate of the Personal Representative of the OSCE Chairman-in-Office”, op. cit.Hide Footnote Since the office’s establishment in 1995, its six international staff have been based in Georgia’s capital Tbilisi.[fn]The Personal Representative does not have a permanent base and travels between Baku, Tbilisi, Yerevan and Stepanakert on a regular basis.Hide Footnote Twice a month they visit the conflict zone for a short-term monitoring exercise that usually lasts several hours. The time and location of their visits are agreed with Baku, Yerevan or Stepanakert – depending on which front lines they are visiting – beforehand.[fn]See Crisis Group Europe Report N°244, Nagorno-Karabakh’s Gathering War Clouds, 1 June 2017. Who on the Armenian side is communicating details depends on the location of the visit: if it takes place along the Armenian-Azerbaijani border, then the logistics are settled between Baku and Yerevan; if it takes place in the Nagorno-Karabakh conflict zone, then Baku and Stepanakert make the arrangements.Hide Footnote

The question of reinforcing its staff numbers has been on the table since the aftermath of the April 2016 escalation. Back then, Baku and Yerevan agreed in principle to increase the office’s staff, envisaging adding between four and six international personnel to the current six.[fn]Crisis Group Commentary, “Politics and Security Hold Each Other Hostage in Nagorno-Karabakh”, 17 January 2018.Hide Footnote That agreement was endorsed by the three Minsk co-chairs (the U.S., France and Russia).[fn]“Joint Statement of the Minister of Foreign Affairs of the Russian Federation, Secretary of State of the United States of America and State Secretary for Europe Affairs of France”, OSCE, Vienna, 16 May 2016.Hide Footnote It was then re-confirmed by the Armenian and Azerbaijani leaders in a joint statement with the Russian president.[fn]Совместное заявление президентов Азербайджанской Республики, Республики Армения и Российской Федерации по нагорнокарабахскому урегулированию” [Joint Statement of the Presidents of the Republic of Azerbaijan, Republic of Armenia and the Russian Federation], official website of the Kremlin, 20 June 2016.Hide Footnote Since then, both Armenia and Azerbaijan have, in principle, remained committed to that deal.

What stops its implementation is disagreement over where the new staff will be located. Yerevan and Stepanakert would want new staff based not in Tbilisi but on either side of the line of contact, with two or three on each side.[fn]Crisis Group interviews, officials, Stepanakert and Yerevan, May 2017, April 2018, October 2019.Hide Footnote Some Armenian and de facto officials also want PRCiO’s staff to enjoy unlimited access to the front line without having to request permission in advance from the parties.[fn]Crisis Group interviews, officials, Stepanakert and Yerevan, October and November 2019.Hide Footnote Armenia thus hopes to deter any potential assault from Azerbaijan. Baku rejects those ideas, which run contrary to its core demand for peacekeepers or monitors to deploy only after an Armenian troop withdrawal. It supports an increase only if staff are based in Tbilisi and their modus operandi remains unchanged. Baku also insists that any increase be temporary, with a duration probably of one year. That way, “if we don’t see any progress on the settlement of the conflict, we reserve the right to return to earlier arrangements”, said one senior Azerbaijani diplomat.[fn]Crisis Group interview, senior official, Baku, November 2019.Hide Footnote

Despite the parties’ deeply rooted concerns, the staff increase might still be possible and would allow the PRCiO to better monitor the front lines and fulfil other trust-building steps, potentially including humanitarian projects. One way out might be assigning new staff to Tbilisi, but with an agreement that they would visit the conflict zone more often. Moving forward even on a modest increase of four to six personnel on the basis of the parties’ agreement would be a confidence-building step for wider discussions on potential security provisions for people living in affected areas. Revising the PRCiO’s modus operandi is a taller order. Azerbaijan is unlikely to give up its requirement that monitors seek its permission before travelling to the front lines. Doing so would make it resemble too closely a monitoring mission, which Baku finds unacceptable absent an agreement on the return of adjacent territories and IDPs. The sides could continue discussing this option, possibly with the involvement of the HLPG’s reformed staff and the support of the OSCE Minsk Group co-chairs.

D. Russia’s Role

Azerbaijani and Armenian fears of Russian domination of any mission pose another obstacle to the agreement on peacekeepers deploying. Russia has played a leading role in mediating the Nagorno-Karabakh conflict for more than a decade. It is the only regional power to have publicly pledged peacekeepers, offering to deploy troops to Nagorno-Karabakh at least twice since the 1992-1994 war (first shortly after the 1994 Bishkek protocol was signed and more recently since 2015, as discussed below).[fn]Vladimir Kazimirov, “Мир Карабаху” [Peace for Karabakh], International Relations, 2nd edition (Moscow, 2015), p. 184. Crisis Group interviews, Russian diplomats, Yerevan, December 2017.Hide Footnote Current and former Russian officials argue that a Russian-led peacekeeping force could help prevent further hostilities, even absent a wider agreement.[fn]Crisis Group interviews, Russian diplomats, Yerevan, December 2017.Hide Footnote Indeed, Russia is the only world power still actively involved with Nagorno-Karabakh. For more than a decade it has been the main player in the OSCE Minsk Group. The two other co-chairs – France and the U.S. – are increasingly disengaged.[fn]Crisis Group interviews, officials, foreign diplomats, Yerevan, Baku, March-May 2018.Hide Footnote The EU has no formal role.[fn]Some experts still suggest a possible role the EU could play in supporting confidence-building measures between the conflict actors. See “Nagorno-Karabakh: Is it time to bring peacekeeping and confidence building back on the agenda?”, European Policy Centre, 29 September 2016.Hide Footnote Yerevan views Turkey, another significant regional power, as Azerbaijan’s backer, and thus not a plausible actor for negotiations or peacekeeping.[fn]Crisis Group interviews, officials, Yerevan, December 2017, April 2018.Hide Footnote

Yet Russia’s offers to deploy troops to Nagorno-Karabakh have consistently been rebuffed by Armenia, Azerbaijan or both.[fn]Crisis Group interviews, current and former officials, military, Baku, Yerevan, Stepanakert, 2017-2018.Hide Footnote The two countries share fears that a mission led by Russia or comprising its forces would fail to solve the conflict while creating new dangers.[fn]Crisis Group interviews, officials, Baku, Yerevan, December 2017, March-May 2018.Hide Footnote Sceptics argue that peacekeepers would serve as cover for an increased Russian military presence in the region. Yerevan and Baku also fear a Russian mission could undermine their sovereignty and increase their dependence on Moscow.[fn]Crisis Group interviews, officials, Baku, Yerevan, December 2017, March-May 2018.Hide Footnote Both maintain good relations with Russia, but with the Kremlin selling weapons to the two of them and working to increase its influence throughout the broader region (including in Turkey, Iran, and Georgia), neither fully trusts Moscow’s motives.[fn]Crisis Group interviews, foreign diplomats, Yerevan, December 2017, April 2018.Hide Footnote

Moscow’s most recent offer to send peacekeepers was part of the so-called Lavrov Plan. First mooted by Russian Foreign Minister Sergei Lavrov in 2015 and reiterated in 2016, following the outbreak of hostilities, it was never formally acknowledged by the Kremlin. The plan proposed pairing the deployment of Russian armed forces to Nagorno-Karabakh with a gradual withdrawal of Armenian forces from the adjacent territories and granting “interim status” to the breakaway entity for an unidentified period of time. It did not offer any clarity on what a referendum or longer-term status would look like.[fn]Crisis Group interviews, foreign diplomats and officials in Baku, Yerevan, May 2018.Hide Footnote

Azerbaijani ruling elite has increasingly accepted that Russia will be part of any resolution to the conflict.

Azerbaijani leaders, backing away from their usual opposition to a Russian presence, first supported the concept, hoping it could lay the groundwork for the return of the adjacent territories and reduce the number of Armenian forces in the conflict region. Baku’s willingness to consider the Russian proposal, despite its reservations about Moscow’s role and armed peacekeepers, also reflected its recognition that Western disinterest meant that no other outside power was likely to get involved. Over time, the Azerbaijani ruling elite has increasingly accepted that Russia will be part of any resolution to the conflict. Indeed, in 2016, the Azerbaijani government was open to a Russian-led peacekeeping mission in Nagorno-Karabakh, which it hoped would replace Armenian forces and guarantee security for settlers until the territories’ return to Azerbaijan’s control (at which point IDPs could return).[fn]Crisis Group interviews, senior officials, Baku, May 2018.Hide Footnote

Yerevan, for its part, rejected the proposal. The central problem was the lack of provisions for resolving Nagorno-Karabakh’s final status and Armenian leaders’ fear that such peacekeepers would effectively eliminate future prospects for the region’s independence.[fn]Crisis Group interviews, officials, foreign diplomats, Baku, Yerevan, Tbilisi, 2017-2018.Hide Footnote Some Armenian officials reportedly said the paper could have been drafted in Baku, given how closely they believed it hewed to Azerbaijani interests.[fn]Crisis Group interview, diplomat, January 2017.Hide Footnote

Today, the Lavrov proposal is off the table. Not only does Armenia continue to reject it, but Azerbaijan, too, has reverted to past calls for “balanced peacekeeping forces” comprising contingents from several countries, not only Russia.[fn]Crisis Group interviews, senior officials, Baku, February-May 2019.Hide Footnote Some in Baku have even returned to old formulae, arguing that if co-chair countries contribute to the peacekeeping force, their individual contributions should make up no more than 10 per cent of the mission’s personnel – thus keeping Russian numbers down – and that peacekeepers should be unarmed.[fn]Crisis Group interviews, senior officials, Baku, May 2018.Hide Footnote As for Armenia, it remains ready to support a multinational presence with Russian participation while negotiations continue, as long as it is unarmed, has an observation mandate only and does not require Armenian troops’ immediate withdrawal.[fn]Crisis Group interviews, officials, Stepanakert, Yerevan, December 2017, March-April 2018.Hide Footnote

The HLPG likely has to factor Armenian and Azerbaijani uneasiness over a large Russian contingent into its planning. Objections in Baku and Yerevan do not necessarily rule out Russia playing an important role. Indeed, Azerbaijan’s previous acceptance of the Lavrov plan shows that it at least could agree to a Russian-led mission under appropriate conditions. But the HLPG might explore a formula that allows for a mix of forces without a majority from any one state, which would temper fears of excessive Russian influence.

Sarsang water reservoir in the north of Nagorno-Karabakh. All rights reserved

IV. Nagorno-Karabakh’s Status

Whether Nagorno-Karabakh will remain part of Azerbaijan or become an independent state is the conflict’s central question. Both Armenian and de facto leaders demand independence, which for many of them would serve as a stepping-stone to Nagorno-Karabakh’s eventual unification with Armenia. Azerbaijan, on the other hand, considers independence anathema. It is willing to allow Nagorno-Karabakh substantial autonomy within Azerbaijan, though has never presented a clear and detailed proposal on what that would look like.[fn]Azerbaijan’s position is founded on the 1996 Lisbon Declaration adopted at the annual OSCE Summit. Baku refers to the 1996 OSCE summit declaration that stated that the status of Nagorno-Karabakh should be “defined in an agreement based on self-determination which confers […] the highest degree of self-rule within Azerbaijan”. Armenia did not endorse this statement. See Annexes 1 and 2 in “Lisbon Document 1996”, OSCE, 2 December 1996.Hide Footnote All previous debates on status were spurred by proposals from foreign mediators.

Both sides claim strong ties to the territory. While Nagorno-Karabakh has long been home to many ethnic groups, Armenians have been the majority for centuries and Armenian culture and society have deep roots there. The region also figures prominently in Azerbaijan’s history, literature and art. The suffering of hundreds of thousands of Azerbaijanis forced to flee Armenia, Nagorno-Karabakh and the adjacent territories during the 1992-1994 war has kept alive Baku’s demands for the territory’s return. In the words of one Azerbaijani politician, “you cannot concede part of your identity, especially when it is tangible and visible like pieces of land”.[fn]Crisis Group interview, official, Baku, September 2018.Hide Footnote

Both countries agreed to these [three] principles believing they could serve their own aspirations.

With both parties making unyielding claims, the only breakthrough in 25 years of negotiations came at the 2007 Madrid OSCE Ministerial meeting – and even then, progress was limited. Armenia and Azerbaijan agreed to the three basic principles, which were later developed into the six elements (all outlined in this report’s introduction). These included granting Nagorno-Karabakh a temporary “interim status” that would end after “a legally binding expression of will” – a referendum, in other words – to determine the region’s final status. Details on how the vote would work, what question or questions it would ask and who could cast ballots were left to further negotiations. As described, both countries agreed to these principles believing they could serve their own aspirations regarding status, not to find solutions that the other would accept.[fn]Since 2009, the de facto authorities of Nagorno-Karabakh entity voiced repeated concerns over the elements. For example, see “Statement of the MFA of NKR”, op. cit.Hide Footnote

Since that time, deadlock, militarisation and the 2016 clashes have not only worsened prospects for Baku and Yerevan to reach agreement on status but also closed space for discussion of the issue between the two societies. Baku’s legal restrictions on civil society, widespread support among both sides’ populations for military action during and after the 2016 clashes and collapsing faith in negotiations have strongly discouraged Azerbaijanis from talking to Armenians.[fn]Crisis Group interviews, pro-government analysts, Baku, April 2018.Hide Footnote In both Azerbaijan and Armenia, only a handful of activists spoke out against the 2016 confrontation, highlighting how small (and narrowing) any potential lobby for dialogue is on both sides.[fn]“Assessment of the April 2016 Conflict Escalation between Armenia and Azerbaijan: A Critical Analysis of the Reaction of the ‘Track Two’ Community in Azerbaijan”, Eurasia Partnership Foundation/Caucasus Research Resource Centre, 2018.Hide Footnote For its part, Yerevan is hostile to any conversation that might throw into question Nagorno-Karabakh’s future independence. Stepanakert is determined not to give up the self-governance it has enjoyed for two and a half decades.[fn]Crisis Group interviews, Armenian officials and the de facto officials, Yerevan and Stepanakert, March-April 2018; Yerevan, February and October 2019.Hide Footnote All this leaves little room for discussion between the conflict-torn populations about Nagorno-Karabakh’s future and further hardens public opinion across the board.[fn]“Azerbaijan detains activists amid Karabakh tensions”, Institute for War and Peace Reporting, 15 August 2014; on the situation of Azerbaijan’s civil society in 2014-2017, see “2018 Country Reports on Human Rights Practices: Azerbaijan”, U.S. Department of State, 2018.Hide Footnote

Moreover, after the thaw of early 2019, Baku-Yerevan relations appear to have become frostier again over recent months, with the leaders exchanging tit-for-tat claims on the disputed territory, sometimes referred to as the battle of punctuation marks. In August 2019, Prime Minister Pashinyan appeared to toughen his rhetoric, declaring: “Artsakh [Nagorno-Karabakh] is Armenia, period”.[fn]“Nikol Pashinyan attends opening of 7th Pan-Armenian Summer Games”, official website of the Prime Minister of the Republic of Armenia, 5 August 2019.Hide Footnote The next day, his foreign ministry downplayed the comments.[fn]“The Statement of the Ministry of Foreign Affairs of the Republic of Armenia”, official website of the Ministry of Foreign Affairs of Armenia, 6 August 2019.Hide Footnote But the comment was welcomed by hardliners in Armenia and denounced in Azerbaijan. Two months later, Azerbaijani President Aliyev retorted: “Karabakh is Azerbaijan, exclamation point”.[fn]Ilham Aliyev, speech to the 16th Annual Meeting of Valdai International Discussion Club, 3 October 2019, cited on the official website of the President of the Republic of Azerbaijan.Hide Footnote

The impasse over Nagorno-Karabakh’s status has precluded discussion of just about anything else. Both sides fear compromising on issues ranging from broader economic and humanitarian cooperation to short-term confidence-building measures for fear of undermining their positions on status.[fn]Crisis Group interviews, Azerbaijani officials, Baku, March 2019; Armenian and de facto officials, December 2017, February and October 2019.Hide Footnote

There are, however, small signs of movement. In contrast to its predecessors, the new Armenian administration expresses more interest in finding a compromise to resolve the conflict. For the first time, Yerevan speaks publicly about its readiness to take into account the interests of people living in not only Armenia and Nagorno-Karabakh, but also Azerbaijan.[fn]According to Pashinyan, “[A]ny solution to the Karabakh issue should be equally acceptable to the people of Armenia, the people of Artsakh [Nagorno-Karabakh] and the people of Azerbaijan”. Quoted in “Nikol Pashinyan, Bako Sahakyan co-chair joint meeting of Security Councils of Armenia and Artsakh”, official website of the Security Council of Armenia, 12 March 2019. All Armenian governments since the 1992-1994 war have declined to recognise Nagorno-Karabakh’s independence, which they have claimed signals their readiness to find a compromise with Azerbaijan on the breakaway region. Crisis Group interviews, former and current officials, Yerevan, March-July 2018, October 2019.Hide Footnote Azerbaijanis increasingly discuss what a peace process and Nagorno-Karabakh self-rule might entail, with some analysts and officials thinking creatively about possible next steps on the main status-related issues in the Madrid principles: interim status, the referendum and final status.[fn]Crisis Group interviews, Azerbaijani officials, experts and civil society members, Baku, May 2018, March 2019, November 2019.Hide Footnote Baku has made no proposal to its Armenian counterparts and the ideas circulating, which do not envisage the region’s independence, remain far from anything to which Yerevan, let alone Stepanakert, will agree. Still, they can be seen as suggesting a desire to talk rather than fight.

If Baku turns such ideas into official proposals and Yerevan is ready to make good on its expressed desire to find a peaceful solution acceptable to Azerbaijan and reciprocate with its own suggestions that factor in Stepanakert’s views, the resulting conversation in theory could help both sides better understand one another. Such discussion will not resolve the question of status any time soon, but it can perhaps help identify potential areas of cooperation.

A. “Interim Status”

President Aliyev repeatedly argues that “the people and state of Azerbaijan will never allow the creation of a second Armenian state on Azerbaijan’s historical lands”.[fn]“Azerbaijan won’t allow creation of second Armenian state on its historical lands – Ilham Aliyev”, Azvision, 31 October 2017. For a similar presidential statement, see Ilham Aliyev, speech at the official reception on Republic Day, cited in the official website of the President of the Republic of Azerbaijan, 27 May 2014.Hide Footnote This attitude is shared among Azerbaijani public figures and opposition groups.[fn]Crisis Group interviews, current and former officials, opposition members, Baku, May 2018- February 2019.Hide Footnote But something officials term “high-level autonomy” is, they say, palatable. This would grant Nagorno-Karabakh substantial self-rule within Azerbaijan.

In discussions of “interim status”, Azerbaijanis have mentioned retaining current de facto governing structures, but as part of Azerbaijan.[fn]According to Taleh Ziyadov, Azerbaijan could temporarily recognise the de facto governing arrangements in Nagorno-Karabakh until its final status is determined. In exchange, Armenia should return Azerbaijani territories adjacent to Nagorno-Karabakh. See Taleh Ziyadov, “Nagorno-Karabakh Negotiations: Though the Prism of a Multi-Issue Bargaining Model”, International Negotiation, vol. 15, no. 1 (March 2010), p. 107.Hide Footnote To sweeten the deal, they suggest Nagorno-Karabakh could have the authority to conduct a limited foreign policy on an agreed set of issues, which it cannot do today as an entity not recognised by any nation-state. The autonomous Nagorno-Karabakh region would extend only to the region’s Soviet borders. Indeed, in return for Nagorno-Karabakh’s interim autonomy, Baku would expect Yerevan and Stepanakert to give up claims or control over the adjacent territories.

Azerbaijani officials see such a formula as a substantial concession, but one they say they would be willing to pursue if Yerevan and Stepanakert agree.[fn]Crisis Group interviews, senior officials, Baku, May-June 2018, March 2019.Hide Footnote “This is the greatest compromise Azerbaijan can offer”, one said.[fn]Crisis Group interview, senior official, Baku, June 2018.Hide Footnote They also feel it could offer many mutual advantages, including contacts between the two societies and the return of IDPs. “Communication on demining will open up, investment to the [Nagorno-Karabakh] region will be launched”, one senior official said.[fn]Crisis Group interview, official dealing with the Nagorno-Karabakh conflict, Baku, May 2018.Hide Footnote Azerbaijani proponents argue that this would help both societies overcome their prejudices and smooth the way for resolving the question of Nagorno-Karabakh’s final status.[fn]Crisis Group interviews, senior officials, Baku, May-June 2018, March 2019.Hide Footnote

A proposal of interim autonomy along these lines would be rejected out of hand by Yerevan and Stepanakert.[fn]Crisis Group interview, de facto official, Stepanakert, November 2019.Hide Footnote Even if the move proposes no real change in the self-governance and life of the de facto entity, and is billed as “interim autonomy”, many Armenians will suspect that it is an Azerbaijani attempt to attain its goals in the “interim” only then to cement them permanently. Even were Yerevan somehow to accept the idea of Azerbaijan granting Nagorno-Karabakh an indefinite “interim status” in exchange for the return of adjacent territories (another step that Armenians presently adamantly refuse), many Armenians would want additional security arrangements to protect settlers given the likely inflow of Azerbaijani IDPs to those areas.[fn]Crisis Group interviews, officials of Armenia and de facto Nagorno-Karabakh, Yerevan, October 2019.Hide Footnote Armenian officials have avoided offering “interim status” proposals of their own, for fear of undermining their position on Nagorno-Karabakh’s independence.

B. Referendum on Final Status

Baku accepts that a referendum on the future status of Nagorno-Karabakh would be legally binding. But it believes that the timing of the referendum and the question of voter eligibility require further negotiation. Otherwise, according to one former senior Azerbaijani official, “Armenians would vote for independence and will get it, and Azerbaijan will have to agree”.[fn]Crisis Group interview, former senior official, Baku, September 2018.Hide Footnote

Among the alternatives Baku has considered is the prospect of two separate votes – one for the Armenian majority, another for Azerbaijani IDPs, such that both groups must agree in order for the vote to be binding (this can be thought of as the Cyprus model).[fn]Crisis Group interview, senior official, Baku, September 2018. In 2004, parallel referendums on a reunification plan were held in the Republic of Cyprus and the breakaway Turkish Republic of Northern Cyprus. Both communities had to approve the plan on offer for it to be implemented. In the event, Turkish Republic of Northern Cyprus voters approved the plan, but Republic of Cyprus voters rejected it. Thus, the plan was rejected. For more see Crisis Group Europe Report N°171, The Cyprus Stalemate: What Next?, 8 March 2006.Hide Footnote Baku has helped foster institutions for Nagorno-Karabakh Azerbaijanis in part so they are organised to participate in such a vote – or, indeed, in negotiations – in the future. One such institution is the Azerbaijani Community of the Nagorno-Karabakh Region, created in 2006 by a group of IDPs from Nagorno-Karabakh in the form of a public union. Most members are from Shusha, where over 20,000 ethnic Azerbaijanis lived before the war.[fn]Before the 1992-1994 war, the entire population of the Shusha city was 23,156: 92 per cent of residents were ethnic Azerbaijanis and around 7 per cent were ethnic Armenians. The total pre-war ethnic Azerbaijani population of NKAO was around 40,000, while Armenians comprised 150,000. See “Soviet Census 1989”, op. cit.Hide Footnote Community leaders say that the population of Azerbaijanis displaced from the Soviet-era Nagorno-Karabakh Autonomous Oblast has since grown to over 60,000, roughly a third of Nagorno-Karabakh’s current population which is estimated at 150,000.[fn]Various sources cite different figures for total numbers of IDPs both at the time of displacement and in the community today. These figures are difficult to verify and remain debated. 2009 Census in the Republic of Azerbaijan, Azerbaijan State Statistics Committee, 1st Volume, Baku, 2010.Crisis Group interviews, Azerbaijani community leaders, Baku, March 2019.Hide Footnote

The Cyprus model – in effect, giving a veto to displaced Azerbaijanis – is almost certain to be rejected out of hand by Yerevan and Stepanakert. Armenia endorsed the six elements of the OSCE Madrid Principles because it saw in them a clear prospect for Nagorno-Karabakh’s independence through a public vote recognised by Azerbaijan.[fn]Crisis Group interview, Armenian historian, Yerevan, December 2017.Hide Footnote In the words of a senior Armenian diplomat, the idea of a referendum “is a good face-saving tool for Azerbaijani leadership that otherwise cannot declare Nagorno-Karabakh ‘independent’”.[fn]Crisis Group interview, Armenian official, Yerevan, April 2018.Hide Footnote Some Armenian officials and politicians are ready to discuss voting rights for Azerbaijani IDPs, though as part of a single vote rather than having their own separate vote (as in the Cyprus model).[fn]Crisis Group interviews, officials, parliamentarians, politicians, Yerevan, December 2017, April 2018, June and November 2019.Hide Footnote As the number of IDPs is insufficient to make Azerbaijanis the majority in the region, letting them vote would not block independence.

C. Final Status

For final as for interim status, Azerbaijan may accept considerable autonomy for the region but not independence. In October 2016, President Aliyev surprised many when he referred to “an autonomous republic” of Nagorno-Karabakh in an interview.[fn]“Алиев: Нагорный Карабах может стать автономной республикой” [Aliyev: Nagorno-Karabakh can become an autonomous republic], Sputnik, October 2016.Hide Footnote No Azerbaijani leader had ever used the word “republic” in this context, always referring to it as a “region”. Almost immediately, then OSCE Minsk Group U.S. Co-Chair James Warlick lauded the statement and welcomed the president’s decision to start “discussions on status”.[fn]“Aliyev’s remarks on Karabakh’s status must be discussed: OSCE envoy”, Panarmenian.net, 26 October 2016.Hide Footnote

Some Azerbaijani politicians advocate skipping “interim status” and a referendum and negotiating Nagorno-Karabakh’s final status from the outset.[fn]Crisis Group’s interviews, Azerbaijani politicians, Baku, May-June 2018.Hide Footnote Their stated logic is that the effort that would go in to negotiating a referendum and interim status would be better spent sorting out a more lasting way forward. Although jettisoning the OSCE’s six principles implies a difficult negotiation in its own right, the same questions and issues arise in discussions of interim status suggesting it is not impossible that such conversations could lead to a final status resolution that avoids the intermediate step.

While no Azerbaijani official has publicly offered details of how Nagorno-Karabakh’s self-rule under Azerbaijan would work, in interviews with Crisis Group several discussed models that involve minimal subordination to Baku. These tend to envision a future in which Nagorno-Karabakh authorities:

  • Can reject decrees or laws from Baku related to self-governance in the region;
     
  • Enjoy considerable self-governance, including in educational and cultural policy, public health, some branches of the economy, law enforcement and postal services, among others;
     
  • Are subject to Azerbaijan’s judicial and customs systems;
     
  • Can establish economic representation in foreign countries;
     
  • Have a role in formulating foreign and security policies (but no veto over Azerbaijan’s policies in those areas);
     
  • Maintain a demilitarised zone with no armed forces inside the region.

At the same time, Baku would want to ensure that returning Azerbaijani IDPs are well represented in Nagorno-Karabakh’s governance structures, including as elected and appointed officials.[fn]The list is prepared based on Crisis Group interviews with Azerbaijani senior officials, Baku, May-June 2018.Hide Footnote

These options draw substantially on the experience of European countries that resolved territorial disputes without changing their borders. Many in Baku point to the Åland Islands, Northern Ireland and South Tyrol as examples:

  • The Åland Islands have a Swedish-speaking majority but are part of Finland. They are demilitarised, with self-rule, their own police force, a flag and other attributes of a sovereign entity. International treaties signed by Finland have to be ratified by the Åland parliament to have legal force on the islands.
     
  • Northern Ireland is an appealing model to many in Baku because the territory, like Nagorno-Karabakh, fought a war for independence. In addition to its own self-rule and distinctive state attributes, Belfast controls an independent judiciary, but the highest court of appeal remains the UK Supreme Court.[fn]Northern Ireland Law: Legal System – An Introduction to Northern Ireland Law”, Oxford LibGuides.Hide Footnote It also has a sovereign parliament, as well as representation in the British parliament and central government in London.
     
  • South Tyrol in the north of Italy has three official languages, reflecting a diverse local population. Along with executive and legislative sovereignty, its local government enjoys fiscal independence.

None of these models is directly comparable to Nagorno-Karabakh. The Åland Islands, for example, enjoy more authority than Baku wants to grant Nagorno-Karabakh. Moreover, neither Europe’s relatively long democratic history nor the supranational umbrella of the EU is present in the South Caucasus.[fn]“Azerbaijan is not Finland and Armenians are not Swedes”, Aravot, October 2014; Crisis Group interview, foreign diplomat, Baku, March 2019.Hide Footnote A Nagorno-Karabakh solution would also have to align with the region’s specific needs. Nevertheless, “although not all features are relevant to Nagorno-Karabakh, learning about these models should provide a reference point”, suggested an Azerbaijani analyst.[fn]Crisis Group interview, analyst, Baku, April 2019.Hide Footnote

The principal problem, however, is that even if Baku is open to granting Nagorno-Karabakh considerable autonomy, anything short of independence is unacceptable to Yerevan and Stepanakert. “There will be no return to the [early] 1990s”, a senior Armenian official told Crisis Group. The Armenian side rejects any plan in which Nagorno-Karabakh returns to Baku’s direct control, whether in the short or long term.[fn]Crisis Group interview, senior Armenian official, February 2019.Hide Footnote Stepanakert says it has built a functional entity whose economy is growing despite political and legal pressure from Baku.[fn]Crisis Group, de facto senior official, Yerevan, October 2019.Hide Footnote

That said, the fact that Baku is putting ideas forward could at least create space for discussions on governance and security in Nagorno-Karabakh. Baku should formalise proposals that delineate how autonomy can guarantee the rights and meet the needs of both local Armenians and displaced Azerbaijanis who may seek to return. While this will not be enough to convince Yerevan or Stepanakert, it might at a minimum start a conversation.

D. Talks on Status

While the two sides are far from one another on Nagorno-Karabakh’s interim status, a referendum and its final status, discussions of these issues could still be beneficial. The converse is almost certainly true: in the absence of such talks, the gulf separating the two sides and societies on each issue is likely to widen. These conversations could begin to lay the groundwork for eventual compromise, however difficult it is to envisage today.

Putting out concrete options on interim and final status might be useful. Baku should convert some of the ideas circulating among official and experts into formal proposals. For its part, the Armenian leadership and the de facto authorities in Nagorno-Karabakh could demonstrate their interest in compromise by engaging constructively and offering their own ideas. Insofar as Azerbaijani proposals underestimate the true extent of self-rule and institutionalisation of the de facto authorities in Nagorno-Karabakh today, Yerevan and Stepanakert can offer Azerbaijan a more accurate picture, which might lead to adjustments at least in Azerbaijani perspectives. Armenian suggestions are unlikely to be initially received in Baku any more warmly than Azerbaijani ideas are in Yerevan or Stepanakert, but they might similarly help set a starting point for talks.

The enormous sensitivity of Nagorno-Karabakh’s independence demand means that any engagement by the two parties on the issue is best undertaken initially through semi-formal or informal channels, lest the publicity of formal talks lead to greater acrimony. All recent attempts to start formal discussions have deepened confrontation between Yerevan and Baku. None has led to serious debate on any of the main issues.

A final challenge is Stepanakert’s role in talks. Since spring 2018, the new Armenian government has demanded that the de facto leadership join. Azerbaijan has always disputed the de facto leadership’s participation. In any case, while Stepanakert was part of 1994 and 1995 ceasefire agreements, it lost its independent negotiating role when its first president, Robert Kocharyan, became Armenian president in 1998.[fn]See Lévon Ter-Petrossian, Armenia’s Future, Relations with Turkey and the Karabagh Conflict (New York, 2018), p. 118.Hide Footnote Before 2018, there was little question that Yerevan represented Stepanakert’s interests, as successive Armenian leaders had personal ties to the region and the 1992-1994 war. Pashinyan, in contrast, has no such connection. Baku has rejected calls for Stepanakert to return to the table, arguing that Nagorno-Karabakh is under Armenian occupation and that for its leadership to participate would imply the de facto authorities represent an independent entity, potentially strengthening their statehood claim.[fn]Crisis Group interview, senior Azerbaijani official, Baku, March 2019.Hide Footnote Baku countered that if Stepanakert joins talks, so should Azerbaijanis displaced from the region.[fn]“Nikol Pashinyan, Bako Sahakyan co-chair joint meeting of Security Councils of Armenia and Artsakh”, op. cit. Baku references the 1992 Commission on Security and Cooperation in Europe Helsinki meeting and the definition of the parties of the Nagorno-Karabakh conflict: “elected and other representatives of Nagorno-Karabakh will be invited to the [Minsk] Conference as interested parties”, which it sees as an acknowledgement that the Nagorno-Karabakh Azerbaijanis have equal rights to the region’s Armenians in the negotiations process. The Armenian side does not agree and references other documents from the past, including ceasefire document, which contains signatures of representatives from Baku, Yerevan and Stepanakert.Hide Footnote Both Yerevan and Stepanakert reject that idea, arguing that Baku represents the IDPs.[fn]Crisis Group interviews, officials and politicians, Yerevan and Stepanakert, April, June and November 2018, April and October 2019.Hide Footnote

Disagreement over Stepanakert’s role strengthens the case for informal talks, at least as a starting point. One option could be discussions among Baku, Yerevan and Stepanakert, initially including only independent experts, former officials or civil society groups endorsed by the leaderships in the three places, potentially with lower level or no officials participating from the outset. To meet Baku’s demand that the concerns of Azerbaijani IDPs be heard, representatives from this community could be included as part of the delegation endorsed by Azerbaijan. Such a dialogue would not replace direct talks between the sides, but take place in parallel.

Both sides ought to agree on two key principles: first, to keep talks on status separate from those on adjacent territories and international missions; secondly, that any agreement on steps prior to final status determination will be without prejudice to that determination and would be revisited if incompatible with that decision once made. Indeed, in the past, fear of setting precedents that could limit manoeuvre on final status has hindered conversation on other topics.

An Armenian villager shows Crisis Group's expert Olesya Vartanyan the positions of the Armenian and Azerbaijani militaries. CRISISGROUP/Jorge Gutierrez Lucena

V. Conclusion

The nearly three decades since the 1992-1994 war have made peace harder. Antagonism and distrust have grown. The two societies have less interaction, even as the line of conflict is more militarised. But while the chasm between them is huge, the recent relative thaw in relations between Baku and Yerevan offers a modicum of hope and a window of opportunity.

Armenia and Azerbaijan ought to take advantage of this situation by initiating direct talks about the issues underpinning their standoff: the adjacent territories’ fate, a potential role for international peacekeepers or monitors, and Nagorno-Karabakh’s status. On the first issue, a preliminary agreement could trade a temporary freeze on new settlement construction for Azerbaijan’s pledge to pause taking legal action or imposing new sanctions. For the second, the HLPG can be tasked with, and provided the access to carry out, a renewed assessment of peacekeeping or monitoring options under various contingencies. This could be coupled with a compromise agreement to expand the OSCE’s Office of the PRCiO. These steps might build some trust and enable further discussions. The distance between the parties on the third issue – status (final or interim) and how a referendum might be organised – means that even conversation on these matters would be a radical step and would likely need to take place initially through semi-formal or informal channels.

There are inevitable pitfalls to reopening dialogue. Discussions when views are so opposed could fuel anger, between the two governments and among the broader public, especially if information is not carefully managed. Yet without talks, opinion in Armenia and Azerbaijan will likely continue to drift further apart. Failure to reset the peace process could also reverse progress that has been made on the front lines. Direct talks could minimise risks of a new war and rekindle a measure of hope in resolving the Nagorno-Karabakh conflict. The last several months of calm are a significant improvement over years of flare-ups that risked triggering wider violence. If the two sides can exploit this interlude, they might be able to create a new norm of engagement that helps them at least discuss some of their differences. Over time this might create openings for the broader and lasting settlement that has been so elusive for so long.

Baku/Yerevan/Stepanakert/Tbilisi/Brussels, 20 December 2019

Our newest Visual Explainer features a uniquely detailed map of the front lines and interactive data charts on reports of casualties and on the use of heavy weaponry, drones and special operations in the conflict zone.

Appendix A: Detailed Map of the Conflict Zone

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Appendix B: Map of the Conflict Zone in a Regional Context

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Appendix C: Data Collection Methods

Information provided during field trips to Nagorno-Karabakh and the adjacent areas was cross-checked with reports regularly published by the statistical offices of Armenia and the de facto entity along with press reports, local legislation, institutional websites and materials made public by diaspora organisations active in the region.[fn]The de facto Nagorno-Karabakh authorities routinely publish legislative acts on a dedicated portal. As of January 2018, this included about 12,000 acts dating from 1992. In some cases, detailed annexes to budget laws have not been published, but they still often include significant information that corroborates data from other sources.Hide Footnote All these sources have been systematically analysed and compared with each other. As a whole, data published by local authorities are generally internally coherent and primarily produced for local consumption and for administrative purposes. They have also previously been referenced by international organisations, as well as by the Azerbaijani government in official statements.[fn]“Letter dated 15 August 2016 from the Permanent Representative of Azerbaijan to the United Nations addressed to the Secretary-General”, Permanent Representative of Azerbaijan to the UN, 16 August 2016.Hide Footnote

There is no direct correspondence between the current administrative subdivisions of the de facto entity and the formerly used borders of the adjacent territories. The most populated parts correspond with the districts that the de facto authorities call Kashatagh and Shahumyan, respectively located to the west and south west of Nagorno-Karabakh. They bring together large parts of four administrative units known as Kelbajar, Lachin, Zangelan and Kubatly. For these territories, separate statistics are more readily available. Therefore, unless otherwise noted, data from Kashatagh and Shahumyan form the basis of this report.

Demography of the adjacent territories

Around 11.48 per cent of the population of areas now controlled by the de facto Nagorno-Karabakh authorities lives in the adjacent territories. As a whole, the total estimate of about 17,000 people corresponds to the number of registered residents, and only slightly overestimates the number of people actually living there:

  • Almost 15,000 registered in areas west and south west of Nagorno-Karabakh (Kelbajar, Lachin, Kubatly and Zangelan). According to de facto authorities, there are 14,913 people living in this area as of January 2019. Local administrative documents, including the number of pupils recorded in schools in areas south west of the former (Soviet-era) Nagorno-Karabakh Autonomous Oblast, present figures that are about 17 per cent lower than the number of children in population statistics, which may partly be due to underreported emigration from these areas.[fn]
    See, in particular, “The Demographic Handbook of Artsakh 2019”, op. cit.; decision by the de facto authorities on education and schools for the academic year 2018-2019, Decision 1047-N, 24 December 2018.Hide Footnote
  • In addition, up to 2,000 people mostly live in settlements near the former town of Agdam. The 2005 OSCE mission that visited these villages confirmed that about 800-1,000 people were living in areas outside of Nagorno-Karabakh’s borders in Agdam district.[fn]See “Report of the OSCE Fact-Finding Mission (FFM) to the occupied territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)”, 2005.Hide Footnote The number of residents in these settlements has increased substantially in recent years, in part due to external assistance. Diaspora organisations working in these areas report numbers of residents that are significantly higher than those in the 2005 census of the de facto authorities (eg, Nor Maragha was reported to have 516 residents in 2013 compared to 349 in 2005; and Ukhatsar was reported to have 285 residents in 2017 compared to 144 in 2005).[fn]“De Facto and De Jure Population by Administrative Territorial Distribution and Sex”, National Statistical Service of the Republic of Artsakh; see himnadram.org for reports on projects conducted by the All Armenian Fund.Hide Footnote

Chart 1. Natural population increase in adjacent territories 2003-2018
(including only areas west and south west of former NKAO)

Office for statistics of the de facto Nagorno-Karabakh entity.

Due to both natural growth and migration, settlements have disproportionately contributed to the de facto entity’s population growth, accounting for about one third of the total growth recorded in the 2010-2015 period.[fn]Estimate based on accounting for migration and natural growth as reported by the Nagorno-Karabakh statistical office in adjacent territories west and south west of the former (Soviet-era) Nagorno-Karabakh Autonomous Oblast. See “The Regions of NKR in Figures 2010-2016”, op. cit.Hide Footnote Relatively small number of pensioners and recorded deaths, as well as the relatively high number of births and school-age children recorded in these areas, strongly suggest that the settlements are mostly inhabited by working-age people and children. As of 2017, about 8 per cent of residents in adjacent territories south west of Nagorno-Karabakh are pensioners, while this figure for other areas controlled by the de facto authorities is well over 20 per cent.[fn]See “The Regions of NKR in Figures 2010-2016”, op. cit.Hide Footnote Given this demographic trend, natural growth is due to remain remarkably strong, in line with the data recorded for the last decade, with between four and seven times more births than deaths recorded in any given year. Migration patterns to and from adjacent territories have been more volatile, with periods of outbound migration (2005-2009, 2016-2018), as well as periods of inbound migration (2010-2015).

Agriculture in the adjacent territories

As of 2017, the adjacent territories accounted for almost one third of the total agricultural output recorded in the Nagorno-Karabakh’s official statistics, nearly doubling their relative weight in agricultural production in less than a decade. The continuous growth and integration of the settlements is reflected in local legislation. For example, the de facto law with all Nagorno-Karabakh cadastre codes published in 2000 had relatively few locations in the adjacent territories; the correspondent de facto law issued in 2005 added about 40 new cadastre locations, most of them in the adjacent territories.[fn]List of cadastral codes, N 9-01 / 01 (2000), 9 June 2000; List of cadastral codes, N 15-K (2005), 11 March 2005.Hide Footnote

Chart 2. Agricultural output of adjacent territories 2013-2018
(including only areas west and south west of former NKAO)
Inflation adjusted at constant 2010 prices

Source: Office for statistics of the de facto Nagorno-Karabakh entity; World Bank for inflation (FP.CPI.TOTL) and ex-change rate (PA.NUS.FCRF).

Assistance to Nagorno-Karabakh and adjacent territories

Over the last decade, Armenia has directly financed between 50 and 60 per cent of Nagorno-Karabakh’s budget. The amount of the transfer (often referred to in local documents as an “interstate loan”) is recorded both in statistical yearbooks issued by the de facto authorities, as well as in Armenia’s own budget law, and the figures between these sources correspond.[fn]See, for example, “Law on the State Budget of the Republic of Armenia for 2018”, official website of the Government of Armenia, 8 December 2017; “Artsakh in figures 2018”, National Statistical Service of the Republic of Artsakh, 2019.Hide Footnote Armenia provides other forms of assistance, including training and occasional in kind donations ranging from cars to computer servers.[fn]See, for example, Armenia’s government’s Decision on providing property to NKR, Decision 184-A, 26 February 2009; Armenia’s government’s Decision on donation to NKR, Decision 151-A, 15 February 2018.Hide Footnote Partly thanks to this assistance, the budget per capita of de facto authorities is about 20-30 per cent higher than in Armenia.[fn]Based on figures on consolidated budget expenditure and total population included in the respective statistical yearbooks. See “Artsakh in figures 2018”, op. cit.; Statistical Yearbook of Armenia 2018, Statistical Committee of the Republic of Armenia, 2018.Hide Footnote According to de facto budget laws, communities in adjacent territories receive a higher subsidy per capita than other parts of Nagorno-Karabakh.[fn]Details on budget subsidies to communities in Nagorno-Karabakh are included in local budget laws, see “NK budget law for 2018”, Ministry of Finance of the Republic of Artsakh, 21 December 2017.Hide Footnote

Chart 3. Armenia and de facto Nagorno-Karabakh’s budget expenditure, USD per capita 2013-2018

Armenia’s Office for statistics; Office for statistics of the de facto Nagorno-Karabakh entity; World Bank for exchange rate.

No single public document summarises the total amount of assistance Armenian diaspora organisations provide to initiatives in Nagorno-Karabakh. Notable activities in the adjacent territories include the Vardenis-Martakert highway, as about 50 out of its total 115km are located in these areas (out of a total cost of $35 million, the Armenia Fund has reportedly contributed approximately $15 million).[fn]See Hetq.am, “Second Highway Linking Armenia and Artsakh Officially Opens”, Hetq.am, 1 September 2017; “Vardenis-Martakert Highway”, Armenia Fund, September 2017.Hide Footnote The U.S.-based Tufenkian Foundation has conducted a large part of its activities in Nagorno-Karabakh’s adjacent territories, which reportedly include spending $900,000 on building a new village in Jebrail district.[fn]See “Expansion and Development of the Arajamugh Village”, Tufenkian Foundation, 18 November 2017.Hide Footnote According to estimates based on official documentation that U.S.-based non-profits file with tax authorities, the Tufenkian Foundation has spent about $2 million in the adjacent territories between 2003 and 2015, and has facilitated additional assistance from other donors and foundations.[fn]See “Tufenkian Foundation, Inc.”, ProPublica’s Nonprofit Explorer.Hide Footnote