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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.

EU Watch List / Global

Watch List 2021 – Autumn Update

Every year Crisis Group publishes two additional Watch List updates that complement its annual Watch List for the EU, most recently published in January 2021. These publications identify major crises and conflict situations where the European Union and its member states can generate stronger prospects for peace. The Autumn Update of the Watch List 2021 includes entries on Afghanistan, Burundi, Iran, Nagorno-Karabakh and Nicaragua.

Table of Contents

Thinking Through the Dilemmas of Aid to Afghanistan

Afghanistan is in the throes of a humanitarian crisis – driven by displacement, drought, the COVID-19 pandemic and a struggling economy – that has sharply worsened since the Taliban’s takeover and the prior government’s collapse on 15 August. A fundamental challenge is the country’s extreme dependency on external funds, much of which are now suspended due to understandable foreign concerns about the Taliban government’s direction. Humanitarian aid continues to arrive, but other disbursements that before the political upheaval were used to underwrite development programs, pay civil servants, provide public services and keep government functioning have ceased. Joblessness and poverty are climbing as a result. Afghanistan’s dire straits mean that donors, including the European Union (EU), have to grapple with the dilemma of how to support a population in growing distress while adhering to principles – including protection of fundamental freedoms, equal rights for women and the rule of law – that conflict with emerging Taliban government policies and practices. Although the Taliban’s transition from insurgency to governance is at an early stage, the group’s history and its actions in government so far indicate that there will likely be a wide gap between the nature of their rule and donors’ values. This gap looks set to limit the extent to which the EU and member states can provide a funding lifeline that would inevitably accrue to the benefit of Taliban regime consolidation.

The EU has framed its criteria for engaging the Taliban government around five benchmarks. These entail the Taliban: (i) allowing the safe, secure and orderly departure of all foreigners and Afghans who wish to leave the country; (ii) promoting, protecting and respecting human rights, particularly for women and minorities, the rule of law and fundamental freedoms; (iii) enabling free access for humanitarian operations (including for female staff) in line with international humanitarian law; (iv) preventing anyone from financing, hosting or supporting terrorist activity from inside Afghanistan and ceasing all ties with international terrorism; and (v) lastly, establishing an inclusive and representative government through negotiations. Brussels has made clear that it will continue “operational engagement” – interactions with the Taliban on practical matters like evacuations and humanitarian operations that do not imply recognition or the resumption of normal diplomatic relations, though the concept is deliberately ambiguous to give the EU greater flexibility.

Consistent with this framework, the EU and its member states should:

  • Maximise humanitarian assistance. The EU has already answered a portion of a UN flash appeal for additional such aid. It could now take a lead role in funding the UN appeal for the rest of 2021, by making further contributions and rallying other donors. Particular attention is needed to ensure that the health care system, already in a precarious state, does not completely fall apart. Donors in this area will likely have to work with and through the Taliban’s health ministry to some extent, in addition to funding international NGOs still present in Afghanistan.
     
  • Adhere to the EU Council’s five-part framework for engagement with the Taliban but interpret it flexibly enough – meaning the EU should work towards the achievement of the five principles rather than using them as prior conditions – to help prevent the collapse of essential, life-saving public services, particularly health care, even though the Taliban are unlikely to meet all the conditions in the framework. Preventing such collapse will require provision of funding for some civil servants’ salaries, such as for health care providers.
     
  • Through diplomatic engagement with the Taliban, keep making clear the benchmarks that the new government would need to meet in order to receive European development assistance. The EU and European governments should set a small number of specific objectives drawn from the five-part framework for particular diplomatic focus, tied to a modest volume of development aid, as a means of testing the prospects for using aid as leverage. Because of its importance, educational access for girls and women could be a benchmark for the delivery of non-humanitarian aid. Earmarking aid for girls’ and women’s education is less likely to motivate the Taliban government to make changes than making aid available for other purposes of more interest to the group.
     
  • Emphasise in engagement with the Taliban that they should follow through on promises they themselves have made, such as their public assurances that restrictions on girls’ education will only be temporary.
     
  • Prepare for the possibility of increased migration to Europe of Afghan asylum seekers as the humanitarian situation deteriorates. Preparation predominantly should include increasing reception capacity in EU member states. Afghanistan’s neighbours, particularly Pakistan and Iran, already host millions of Afghans and are unlikely to welcome additional large numbers, even if Europe offers financial support.

A Severe Humanitarian and Economic Crisis

Since the Taliban seized power, the overall level of violence in the country has dropped considerably. But more than 3.5 million people remain internally displaced, and many of them have little prospect of returning home, due to property damage, crop failure and fear of Taliban revenge killings as well as fresh violence related to newly shifting power relations among tribes, clans and ethnic groups.

Meanwhile, the country’s economic woes are deepening. The Taliban have put at the helm of economic policymaking individuals without relevant experience or qualifications, and the suspension of non-humanitarian foreign aid has starved the public sector of resources. Before the Taliban took over, public spending was about 75 per cent financed by foreign donors; without such assistance, the vast majority of civil servants are not being paid. The Afghan National Defence and Security Forces had been a major employer, providing income to many rural families, but are now defunct. Most of the Afghan central bank’s reserves, managed by the U.S. Federal Reserve, are now frozen and unlikely to be released soon, contributing to a liquidity crisis.

The UN made a flash appeal for humanitarian aid that was the focus of a 13 September donors’ conference in Geneva, seeking $606 million to meet immediate needs. The EU increased its planned humanitarian aid spending for 2021 from €57 million to €200 million, almost a fourfold increase – but more money is needed. The UN’s appeal is only about 35 per cent funded as of early October.

This aid may help Afghanistan avert severe food insecurity, but with non-humanitarian assistance suspended, it is unlikely to prevent a sharp economic downturn. Whether or not to restart that assistance – and in what circumstances – presents the EU and other donors with a true conundrum.

EU Aid to Afghanistan and Conditionality

The EU has been one of the main financial backers of the heavily aid-dependent Afghan state, with €1.4 billion committed between 2014 and 2020. Brussels sent much of this aid as budget support for the Afghan government, to help finance agriculture and rural development programs, health care, policing, the justice system, anti-corruption initiatives and democratisation projects. Even before the Taliban seized power in August, however, the Afghan government’s uneven commitment to EU aid conditions (particularly enhancing governance and public institutions, fighting corruption, and fostering human rights and fundamental freedoms, especially for women, children and minorities) led the EU to slow or withhold the release of some of its assistance.

The Taliban takeover prompted the EU to suspend non-humanitarian aid altogether and re-evaluate its conditionality framework. On 21 September, the EU Council defined five benchmarks, outlined above, that would guide any future engagement with the Taliban government, though the EU has made it clear that for now it intends to keep what it is calling operational lines of communication to the movement open. Neither the EU nor any of its member states have yet clarified how stringently these benchmarks will be used as aid conditions. Yet, even as humanitarian aid for 2021 has been significantly increased, so long as the EU is not able to verify progress on the benchmarks, the €1 billion that Brussels was planning to deliver from 2021 to 2027 for development assistance will stay in European coffers.

Taliban Priorities and Reactions to EU Conditionality

The Taliban have not publicly responded to the EU’s conditionality framework. Indeed, few of the Taliban interlocutors who spoke with Crisis Group had even studied it. They were, however, aware of the broad contours of EU demands, given that various regional and other states have been pushing similar agendas to varying degrees.

The Taliban are pressing for the establishment of a working relationship with the EU.

The Taliban appear to have an optimistic set of objectives for what they want from the EU and its member states: formal recognition, normalised diplomatic relations and unconditional aid to the country. As an immediate priority, the Taliban are pressing for the establishment of a working relationship with the EU. They see the possibility of Europeans re-establishing diplomatic presences in Kabul as a stepping stone to formal recognition. The Taliban see these measures as warranted because they have unchallenged authority in Afghanistan and because they believe the country remains strategically important to the EU. Some Taliban interlocutors warn that if Western states shun their government, they could increasingly fall under the influence of meddling neighbours, particularly Pakistan. They also caution (whether genuinely or opportunistically is difficult to say) that if Western countries do not quickly display good-will, the group will assume that they are hostile and defer to hardliners who wish to reinforce the group’s Islamist and jihadist credentials.

Be that as it may, the Taliban leadership is increasingly cognisant they are unlikely to receive any time soon formal recognition or anything like the financial aid flows the previous government enjoyed. Their most pressing priority seems to be removal of sanctions. The Taliban leadership is aware that to maintain Afghanistan’s public services machinery and ward off state collapse, they will require financial and technical assistance that enables them to restructure their security and intelligence forces and build fiscal management, technological and service-delivery capacity. Without sanctions relief, almost none of that help is attainable. The Taliban’s leaders appear to believe that if they can get even a fraction of the aid the country previously received, then they would be able to run a functioning government. The Taliban seem to want to extract as many benefits as possible while offering little in return.

The Taliban will accept financial aid only if there are minimal conditions. However bad the situation in Afghanistan, at least so far they appear willing to forego assistance if it entails stringent conditions. Publicly, top government officials have emphasised the need to remove conditions for providing aid. Privately, Taliban interlocutors acknowledge the futility of asking for aid with no strings attached but stress that they will be unable to fulfil strict conditions. They say donors should set realistic goals, though have not defined what they would regard as realistic.

Conversations with Taliban interlocutors suggest that the group’s policies are first and foremost driven by concerns internal to the movement, particularly maintaining its cohesion, followed by broader domestic considerations, with demands by outside powers, especially faraway ones, coming a distant third. In practice, the group may frame its actions as ways to address EU concerns, where those concerns align with the Taliban’s own goals. Where they diverge, however, the movement will put internal and domestic imperatives ahead of EU demands.

The Taliban appear to believe they have already fulfilled some of the EU benchmarks. The group cites its cooperation during the post-15 August evacuation of foreign citizens and many Afghans as an example showing it can be a responsible, constructive counterpart. Interlocutors argue that with the main airports again operational, foreign citizens are free to enter and exit the country. Although concerned about brain drain, they say they are prepared to allow Afghans who want to leave the country to do so and they have facilitated some flights, even though there are also anecdotal indications to the contrary. For such cooperation to continue, they will want something in return. Taliban interlocutors also believe they are on track to meet the benchmark regarding humanitarian operations. The Taliban generally attribute occasional interference in humanitarian organisations’ work to lack of discipline among the rank and file, and the group claims to be taking steps to curb such behaviour. At the same time, it is likely that the Taliban will use engagement on humanitarian operations as an opportunity to maximise interactions with foreign states in the hopes of building informal diplomatic relations and implicit recognition.

On counter-terrorism issues, the Taliban believe that compliance with their February 2020 Doha agreement with the United States (which they claim to be honouring) is sufficient to meet this benchmark. The Taliban argue that the Doha agreement set up a framework whereby their government will treat foreign fighters as refugees, with all the rights and obligations this status entails. They say they will take action against any foreign militants who seek to abuse this status. Yet Taliban interlocutors are also keen to emphasise – probably at least in part to deflect responsibility – that they would require continued security and intelligence cooperation from the EU and U.S. to detect and stop threats emanating from the country. Given the increasingly dire challenges the Taliban face, they are unlikely to place a high priority on countering militant groups that they do not see as a threat to themselves. The Taliban also do not appear to have a comprehensive understanding of counter-terrorism obligations under international law and practice, including the obligation to cut off terrorist group financing. The group appears to believe that the Doha agreement, rather than Afghanistan’s broader international obligations, defines its commitments in this area. Taliban interlocutors say they believe the group would require the removal of sanctions as well as financial and technical assistance to fulfil financial counter-terrorism obligations.

The Taliban also argue that outside powers should interpret their latest appointments, which only slightly diversified the ethnic composition of their Pashtun-dominated government, as a sign of their willingness to form an inclusive government. Interlocutors claim that inclusion will be effectuated slowly and incrementally, as the group seeks to balance its fighters’ sensibilities against the need to fulfil its “obligations” to foreign countries. They also suggest that the government is preparing to form a specific ministry for women that will be led by a woman. If their conduct so far is any guide, however, it is likely that the Taliban will at best bring in one woman in a symbolic position, akin to the inclusion of a Hazara as a deputy public health minister, in order to claim that the government has now become inclusive.

One area in which the Taliban have not come anywhere close to meeting European conditions is the protection of rights and fundamental freedoms for women and girls.

One area in which the Taliban have not come anywhere close to meeting European conditions is the protection of rights and fundamental freedoms for women and girls. Taliban interlocutors insist that women will have the right to work and get an education, but they are studiously vague about when, and under what circumstances, women will be able to exercise these rights. On paper, the Taliban have extended girls’ schooling up to the sixth grade to all parts of the country, including the south, where, as an insurgency, local commanders forbade girls to attend even primary school. Anecdotal evidence about women’s access to university education is mixed; while some reports indicate that women have been allowed to attend classes in some places, other reports say new restrictions have made that practically impossible in others. At present, however, girls are not being allowed to attend school from the sixth grade through the twelfth, despite the fact that boys of equivalent grades have resumed schooling. The Taliban have claimed that the exclusion of girls is temporary. But they have set no timeline for when girls will be able to resume their studies, making vague excuses for the delay. The group has also curtailed women’s ability to work outside the home. They have allowed women to resume working in the health and education sectors as well as in a limited number of security roles that involve interaction with other women (such as at airports). Beyond that, the Taliban have generally barred women from going to work until further notice. While Taliban interlocutors told Crisis Group that these restrictions are temporary, the Taliban’s history gives reason for doubt. Scepticism is all the more warranted given many powerful Taliban commanders’ opposition to girls’ education beyond the sixth grade.

On some issues the Taliban see themselves as performing a balancing act between appeasing (as they see it) Western donors and not antagonising their hardline elements. This is seen in spheres such as media and moral policing. The Taliban have so far let many media outlets continue broadcasting. At the same time, numerous journalists report being harassed, arrested and even severely beaten by the Taliban. In the resulting climate, most media outlets are forced to self-censor lest they draw the Taliban’s ire. In deference to hardliners, the group has also reinstituted the Vice and Virtue Ministry, feared under the Taliban regime of the 1990s for its harsh and often violent moral policing. The ministry has thus far abstained from regulating citizen’s behaviour nationwide. There have been reports, however, of ministry officials banning music, the shaving of beards and Western hairstyles, particularly in Helmand province, although the government has rejected these reports as fabricated. As the Taliban government wrestles with a multitude of governance and security challenges, there is a risk that it will reverse these meagre concessions to international opinion – and to the views of many Afghans – to placate hardliners.

What the EU Can Do

The immediate priority should be making sure that Afghanistan gets as much humanitarian aid as it needs. The EU and its member states should contribute additional funds to the UN humanitarian appeal for the rest of 2021 and urge other donor governments to follow suit. In addition to addressing immediate needs, it will be crucial to find ways to prevent the health care system from collapsing. Although this can be partly achieved by providing funds to international NGOs that remain active in the country, it is unlikely that donors will be able to entirely avoid working with and through the Taliban health ministry in doing so, as even if they scale up their operations, these NGOs alone will never be capable of providing health services across the country without some kind of collaboration with the government-run national health system.

Although humanitarian assistance may be able to stave off disaster for the Afghan population, it will not replace the provision of public services. Nor will it prevent the country’s further impoverishment. Should the Taliban make sufficient progress toward the benchmarks set by the EU Council, the European Commission should at least prioritise resuming development assistance in the health sector. At the same time, the EU could evaluate the feasibility of a more expansive development aid program.

While aid conditionality is not likely to shape Taliban policies to any great degree, it is not impossible that renewed aid with conditions could bring some small improvements. The Taliban’s practices are driven primarily by ideology and the group’s perceived need to consolidate its grip on power. The group’s leaders generally appear to believe that, as the military victors, they need not compromise. They seem inclined to blame the country’s economic woes on Western donors, whom they regard as inflexible and bearing grudges, even if it is clear that their own policies and actions, many of which are anathema to European values, are the chief factor obstructing the resumption of non-humanitarian aid. Nevertheless, the EU should continue to test through engagement whether renewed aid with conditionality could bring worthwhile changes, all the while sticking to its five-part framework. It should also keep reminding the Taliban government of its own commitments, such as its statements that the suspension of girls’ secondary education is only temporary.

Lastly, the EU member states should prepare for large numbers of Afghans potentially fleeing the country. Even if humanitarian aid can stave off the worst in the approaching winter, the prospect of repeated humanitarian crises and possibly renewed violence in Afghanistan means that Afghans will continue to seek to migrate abroad. Many will probably head for Pakistan and Iran, the countries next door, where millions of refugees already reside. So far, the EU has suggested it will fund neighbouring countries to host Afghan refugees. But Afghanistan’s neighbours are baulking at accepting new arrivals. Moreover, past attempts to increase the reception capacity of other countries have not prevented large numbers of Afghans from attempting the risky journey to Europe. The EU and its member states should accordingly prepare – politically and operationally – to welcome large numbers of Afghans themselves.

An Opportunity for the EU to Help Steer through Reform in Burundi

After years of strained ties, the European Union (EU) and Burundi again are on speaking terms. The country’s president, Evariste Ndayishimiye, in power since June 2020, started talks with Brussels in February that could eventually lead the EU to resume direct budgetary support for Burundi. In 2016, due to concerns about Burundian government abuses, the EU invoked the suspension provisions in Article 96 of the Cotonou Agreement – its partnership pact with various African, Caribbean and Pacific states – as the basis for cutting that support amid the violent turmoil following former President Pierre Nkurunziza’s contested 2015 election bid. At roughly the same time, Brussels also sanctioned several Burundian officials for their repressive practices and their role in stoking the country’s political crisis. But President Ndayishimiye has sought to put relations between Burundi and its donors on a better footing. By loosening restrictions on civil society and taking a hard line against government corruption, he has tried to allay fears that he will govern like his late predecessor, Nkurunziza, while leaving the door open for dialogue.

Brussels can take heart that several rounds of negotiations with Gitega, Burundi’s official seat of government, have yielded a general Burundian commitment to embark on human rights and good governance reforms. The EU should not open the floodgates of aid money, however, until it can agree with Burundian authorities on more precise benchmarks for these reforms, in light of continued, widespread and destabilising abuses. In the past months, and notwithstanding President Ndayishimiye’s willingness to rein in repression, the intelligence services have cracked down harder on government opponents. The Imbonerakure, the youth militia of the ruling Conseil national pour la défense de la démocratie – Forces pour la défense de la démocratie (CNDD-FDD), which is dominated by the majority Hutu ethnic group, also continues to harass civilians and target dissenters. Certain members of the minority Tutsi ethnic group are at particular risk. Though Ndayishimiye may be open to addressing alleged abuses, ruling-party hardliners could press him to resist reforms that might loosen the party’s grip on power.

For Brussels to steer Burundi toward reform, it will need to adopt a consistent negotiating position with Gitega, and make sure it has the ability to monitor the latter’s adherence to the agreements it makes. Two obstacles could derail those efforts. First, EU diplomats themselves appear to hold different views as to how hard they should push for reform. Secondly, the pending conclusion of multilateral observer and monitoring missions, partly due to Ndayishimiye’s charm offensive, means that the EU will no longer have important sources of information about Burundi’s performance in meeting its commitments. Perhaps most importantly, the UN Commission of Inquiry on Burundi is likely to wind down its multi-year efforts after it reports to the UN Human Rights Council, which rounds off its 48th session on 8 October.

In negotiations with Burundi, the EU and its member states should thus:

  • Propose precise benchmarks concerning respect for human rights and political freedoms that they expect Gitega to meet before Brussels again provides budgetary support. These should include a plan for the Burundian authorities to rein in the Imbonerakure’s abuses and hold to account those of its members responsible for grave human rights abuses.
     
  • Ensure that the authorities’ compliance with any agreement to which Burundi’s government commits is monitored. In the event the UN Human Rights Council creates a new special rapporteur position to take the place of the Commission of Inquiry, which is likely to be disbanded, Brussels should provide the support needed to make it a meaningful oversight mechanism. In the event that the Council does not create this new position when it votes on 7 or 8 October, Brussels should as a fallback strengthen its own monitoring capacity. Brussels should also press Burundian authorities to cooperate with whatever monitoring mechanism it is relying on.
     
  • Maintain a clear, fixed negotiating position based on the precise benchmarks and monitoring mechanism being sought and avoid sending mixed messages to the Burundian authorities as regards EU expectations.

Challenges for Reform

Despite President Ndayishimiye’s attempts to convince international actors that he is serious about reform, the ruling party’s machinery of repression is still firmly in place. According to Human Rights Watch and the UN Commission of Inquiry, the Imbonerakure and intelligence services continue to violate human rights, mainly by targeting opposition members, young Tutsi and members of the army’s old guard, also mostly Tutsi, whom the CNDD-FDD sees as security threats.

The authorities often use the youth militia to supplement or replace the security forces, particularly in rural areas, giving them free rein to terrorise the population. The militia, which Ndayishimiye oversaw when he was CNDD-FDD secretary general, is known for shaking down, torturing, abducting, sexually abusing women and killing opposition members and ordinary citizens alike. Its members conduct night patrols and house visits to demand funds for CNDD-FDD coffers or personal gain. They also prevent the opposition from organising, by disrupting meetings and vandalising offices. While Ndayishimiye has taken some steps to reel in the Imbonerakure, for example by directing its members to stop extorting financial contributions from the population, he has achieved mixed results at best. The intelligence services, meanwhile, have stepped up abductions and arrests of people considered government opponents, often using internal and cross-border security incidents as cover for round-ups.

Any attempt by Ndayishimiye to roll back these practices is likely, however, to meet resistance from top generals in the CNDD-FDD, which started its life as a rebel outfit but has held power since 2005, when it transformed itself into a political party. Several top party and military figures, including many who enriched themselves during former President Nkurunziza’s fifteen years in power, are deeply suspicious of Ndayishimiye’s tentative rapprochement with the EU and baulk at the notion of conditions attached to renewed budgetary aid. The president will also likely take flak from hardliners who were Nkurunziza allies, such as Prime Minister Alain-Guillaume Bunyoni and Interior Minister Gervais Ndirakobuca, who is under EU sanctions for his role in the 2015 political crisis. Both of these powerful party chiefs supported Nkurunziza’s preferred candidate, Pascal Nyabenda, in the 2020 presidential election. Having appointed them to top posts, Ndayishimiye nevertheless faces a struggle to retain their loyalty.

Ndayishimiye’s engagement with Western, regional and other diplomats, meanwhile, has contributed to their support for a drawdown of multilateral oversight bodies tasked with reporting on Burundi, making it hard to establish whether change is genuine and sustainable. In December 2020, the UN Security Council removed Burundi from its agenda, noting improved security in the country and acknowledging Ndayishimiye’s reform efforts. The African Union Human Rights Observers and Military Experts Mission and the Office of the UN Secretary-General’s Special Envoy in Bujumbura, both established to monitor the situation in the country and find a way to end the violence, closed in May 2021.

The UN Commission of Inquiry is the only internationally mandated body still active in the country monitoring human rights abuses and the risk of further conflict. But the UN Human Rights Council will likely not renew its mandate, and it remains to be seen whether there is sufficient Council support for replacing it with another oversight mechanism. This matter will be resolved on 7 or 8 October when the Council votes on its Burundi resolution, which includes an EU proposal to create a new mandate for a special rapporteur who could take over some of the Commission of Inquiry’s monitoring functions.

What the EU Can Do

It is good news that Burundi and the EU are back in regular contact. Diplomats tell Crisis Group that the Burundian authorities have become significantly more forthcoming since President Ndayishimiye assumed office. Burundian officials show a clear appetite for dialogue, and the reasons why are readily apparent. The country needs financial support. Its economy is shattered following the 2015 political crisis and years of dysfunctional government. It never fully compensated for the loss of the EU as its biggest donor by turning to less traditional partners, such as China, Russia and Turkey, who offered only limited assistance. Even some CNDD-FDD hardliners may thus be inclined to continue negotiation.

This situation presents an opportunity for the EU, which should use negotiations to encourage the Burundian authorities to make reforms that can help bolster long-term stability and avoid the return to armed violence. Moving forward, the EU should focus on three priorities to ensure it can steer Burundi toward meaningful reform.

The EU should propose clear benchmarks on human rights that Burundi needs to meet if it is to receive renewed budgetary support from Brussels.

First, the EU should propose clear benchmarks on human rights that Burundi needs to meet if it is to receive renewed budgetary support from Brussels. The roadmap of reforms prepared by the Burundian authorities is an important first step, but it is not sufficient. A copy reviewed by Crisis Group details steps the government should take to adopt policies and strengthen institutions but makes no reference to the Imbonerakure. Nor does it define what authorities should actually do to curb abuses by the youth militia and intelligence services.

The EU should push for benchmarks that are consistent with the concerns expressed in the 2016 European Council decision to suspend aid in the first place, focusing in particular on setting out further commitments to corral abuses by the Imbonerakure, the main tool of CNDD-FDD’s repression, including by holding accountable those responsible for egregious abuses. Brussels should also draw upon the latest UN Commission of Inquiry reports, using the rights violations and other abuses documented as its reference points for the situation that Gitega must remedy. Benchmarks should also reflect the expectation that Burundi will cooperate with human rights monitoring mechanisms backed by Brussels.

Secondly, in the event that the UN Human Rights Council disbands the UN Commission of Inquiry and – as contemplated by the draft resolution on the calendar for 7 or 8 October – replaces it with a special rapporteur on Burundi, the EU and its member states should put their efforts behind making this reporting mechanism meaningful. The EU, which drafted the resolution that would provide the special rapporteur with his or her mandate, should also allocate sufficient resources to finance the work of local non-governmental organisations on which previous reporting mechanisms have relied heavily for information. In the event there are not enough votes for the special rapporteur position on 8 October, a fallback would be for the EU to strengthen its own capacity to monitor the authorities’ compliance with any agreement to which Burundi’s government commits.

Finally, when entering negotiations, EU officials should present a united front. At present, some EU delegates seem keen to turn the page and reach political normalisation with Burundi sooner rather than later. But other officials in Brussels appear convinced that Burundi requires meaningful reforms if it is to avoid further protracted crises, and thus are prepared for lengthy negotiations to see that Gitega adopts the best possible practices. Moreover, in order to revoke the suspension of financial assistance under Article 96, member states in the EU Council will need to adopt a legal act that requires unanimity, which may take time, particularly in the event of enduring concerns about Burundi’s progress.

The EU’s internal dissonance has distorted perceptions of the EU position in Burundian circles and could complicate talks going forward. Indeed, in June, after a meeting between Ndaysihimiye and the EU delegation’s head, the Burundian authorities wrongly announced on the presidency’s official Twitter account that Article 96 had been revoked. National and regional media reported this statement as fact, undermining the public’s understanding of the negotiations. Going forward, it will be important for Brussels to run a tight ship, with a coordinated position and messaging discipline, if it is to achieve its important goals in the negotiations.

Iran: Push to Revive the Nuclear Deal, but Prepare for Worse Outcomes

The fate of the Joint Comprehensive Plan of Action (JCPOA), the 2015 deal placing limitations on Iran’s nuclear program in exchange for sanctions relief, looms large in the country’s relations with Europe. The three European parties to the accord – European Union (EU) member states France and Germany, as well as the UK – have helped keep it alive, if not exactly thriving, since the U.S. unilaterally withdrew in 2018 and Iran subsequently began breaching its own obligations. Since April, with the U.S. wishing to rejoin the pact, the EU has coordinated six rounds of indirect talks between Tehran and Washington through the three European parties plus Russia and China (the other two JCPOA parties). The negotiations yielded considerable progress toward Washington and Tehran resuming mutual compliance with the JCPOA, but they stalled in mid-June as Iran held an election and inaugurated a new president. The urgency of compromise is growing as Iran’s nuclear program continues to expand and become less transparent with Iran limiting UN inspectors’ access to nuclear sites, potentially rendering a return to the existing agreement meaningless. Should the JCPOA collapse, the knock-on effects could hinder nascent efforts at de-escalating tensions in the Gulf and the wider Middle East.

The EU and its member states should:

  • Support the JCPOA’s full restoration, including through proactive steps aimed at bringing Iran meaningful sanctions relief.
     
  • Prepare contingency plans for the eventuality that JCPOA talks break down, including parameters for an interim arrangement to freeze mutual escalation, as well as a potential shift to “better-for-better” negotiations in which both sides gain benefits that go beyond the original agreement’s terms.
     
  • Encourage efforts at regional dialogue, particularly between Iran and Gulf Arab states.
     
  • Engage with Iranian authorities on Afghanistan, notably on areas of common interest, including helping refugees and interdicting narcotics.
     
  • Explore opportunities for strengthening maritime security in the Gulf, including through military-to-military hotlines.

The Nuclear Deal: Heading for Revival or Ruin?

No issue on Iran’s foreign policy agenda is more consequential than the JCPOA, which has steadily unravelled since the Trump administration pulled out of it in 2018 and faces deeply uncertain prospects of restoration. Although the Biden administration and the Iranian government agree in principle on the need to revive the accord, progress has been halting. Beginning in early April, negotiators convened for six rounds of talks in Vienna, tackling the specifics of what the U.S. would offer in terms of sanctions relief, what Iran would do to reverse its breaches and in what order the parties would take these steps. Though significant gaps remained, a text was emerging when the sixth round of talks concluded on 20 June.

The U.S. sanctions architecture ... remains substantially in place, with deleterious consequences for ordinary Iranians, especially women.

Since then, however, Iran, which had a presidential transition in August that completed a conservative takeover of all centres of elected and unelected power, has moved slowly to resume negotiations. Iranian officials indicate they plan to return to the table in the near future, but have not offered an exact timeframe. In the meantime, Iran has continued to expand its nuclear activity while limiting verification and monitoring by the International Atomic Energy Agency (IAEA). The U.S. sanctions architecture set up under President Donald Trump also remains substantially in place, with deleterious consequences for ordinary Iranians, especially women, who have seen their gains in employment, advances to senior management positions and promotions to leadership roles in multiple sectors reversed by the economic downturn. Exacerbated by the impact of the COVID-19 pandemic, these pressures have also reduced women’s capacity to pursue legal reforms and protections. The impasse in negotiations is concerning, particularly as Iran’s advances in nuclear capability risk making the JCPOA’s restoration ineffective as a non-proliferation arrangement within a matter of weeks or, at best, months.

If and when the parties resume talks, there are three scenarios for how Tehran might approach them. At one end of the spectrum, it may continue constructive deliberations based on the progress made in the previous six rounds; at the other, it may push for an altogether new negotiating paradigm that jettisons the JCPOA as a frame of reference. In between, and for now this scenario is most likely, it may enter the fresh talks with maximalist demands that could deepen the present impasse.

The JCPOA standoff occurs against the backdrop of a mixed bag of regional developments of significance to Tehran, as well as to its friends and adversaries. The most positive recent news is that Iraqi mediation has facilitated three confirmed rounds of talks between Iran and Saudi Arabia, a positive development that could help ease frictions between the long-time rivals. But success is far from assured, especially if relations between Washington and Tehran grow increasingly adversarial and reinforce a zero-sum contest in the region. As for more concerning developments, tensions between Iran and Israel are running high on several fronts, with tit-for-tat attacks, including covert operations against Iranian nuclear facilities and maritime intrigue that could rapidly escalate. In Afghanistan, the return of Taliban rule raises major strategic concerns for Iran, even as Tehran cautiously comes to terms with a government led by men who were once its bitter foes but with whom it has built better, if still uneasy, relations over the past decade. The UN refugee agency has warned that as many as half a million people could leave Afghanistan for neighbouring countries by the end of 2021, including an estimated 150,000 to Iran.

Brokering between Rivals

Europe has a clear interest in seeing the JCPOA restored.

Wishing to avoid another destabilising crisis in the Middle East, Europe has a clear interest in seeing the JCPOA restored. But while the two central protagonists in such an effort are the U.S. and Iran, whose respective sanctions policy and nuclear program are the core issues that must be addressed, the EU and its member states are not mere bystanders. European actors can contribute to diplomacy in two important ways.

The first will be relevant in the event of a revived agreement. In this scenario, the EU should move swiftly to put in place measures to give Tehran an economic shot in the arm, including through EU lending institutions. Exploring avenues for such institutions to work with Iran could facilitate project financing and private-sector engagement.

In addition, the EU and member states can support the deal’s long-term viability by shielding European trade with Iran from the risk that the U.S. again pulls out of the deal and reimposes unilateral economic sanctions. The impact of the Trump administration’s “maximum pressure” strategy on Iran-EU trade was and remains substantial. Such trade dropped in value from around €20 billion per year after the JCPOA went into effect to just €5 billion in 2019 and 2020, thus nullifying much of the economic relief Tehran had expected in return for its JCPOA compliance. The dropoff in trade exposed the limits of efforts to retain private-sector interest in Iran, including through the Instrument of Support of Trade Exchanges to facilitate commerce notwithstanding the Trump administration’s reimposition of economic sanctions, but it should not dissuade the EU from preparing further initiatives aimed at insulating legitimate Iran-EU commerce from a future U.S. withdrawal. Brussels could, for example, put in place a new and upgraded blocking statute (a law that shields EU companies from U.S. sanctions by prohibiting compliance as a legal matter) linked to the anti-coercion instrument that the EU plans to establish as part of its new trade strategy.

The second contribution that the EU and member states could make, particularly in the absence of direct U.S.-Iran talks, is to ready options for the parties in the event that JCPOA negotiations continue to sputter or break down altogether. For example, the Europeans could propose an interim agreement in which Tehran suspends some of its most proliferation-sensitive activities (eg, uranium enrichment above 3.67 per cent, advanced centrifuge work or uranium metal production) in return for limited relief from sanctions on oil sales and/or access to frozen assets. This temporary deal might head off an escalatory spiral and buy time for a more comprehensive understanding. Such a JCPOA-minus arrangement could be a way station toward a JCPOA-plus pact. That sort of deal, in turn, would put more substantial sanctions relief on the table in return for longer-term nuclear restrictions than Iran agreed to in the 2015 deal as well as more rigorous monitoring. By expanding the original agreement into a better-for-better framework, Western powers would secure stronger non-proliferation terms while Iran would reap larger economic benefits.

Beyond the JCPOA, the EU and member states can also help bolster diplomacy among the six Gulf Cooperation Council states.

Beyond the JCPOA, the EU and member states can also help bolster diplomacy among the six Gulf Cooperation Council states, Iran and Iraq in locally led, internationally backed dialogue. European support can be particularly useful in facilitating discussions about certain areas of mutual concern to the parties, including public health and water scarcity. While the recent conference in Baghdad, in which most of Iraq’s neighbours, including Iran, participated along with France, was a step in the right direction, an inclusive and focused sub-regional dialogue among states on both sides of the Gulf has a better chance of achieving regional de-escalation by opening regular channels of communication between officials of similar rank, brief and expertise.

The EU and member states should also work with Iran to develop a common approach to the humanitarian crisis in Afghanistan. The inclusion of Iran in the group of states the EU seeks to work with to address the spillover of the Afghanistan crisis, along with other neighbouring countries, is a positive step in this regard. Still, given the prospect of increased numbers of refugees crossing into Iran as they flee Taliban rule in the coming months, and with Iran still struggling to contend with the COVID-19 pandemic, Tehran will need all the help it can get from the EU and member states.

Finally, the EU should seek to prevent further deaths like those of a UK and a Romanian national in a July drone attack upon the MT Mercer Street tanker off Oman’s coast, which the EU, U.S. and G7 have all determined bore Iranian fingerprints. The nine European states participating in the European-Led Maritime Awareness in the Strait of Hormuz could increase coordination or merge with other international efforts, including the International Maritime Security Construct, a parallel naval operation established in 2019 with U.S. and UK participation alongside six other members, to make key shipping routes safer. If the participating states are transparent about their intentions, Tehran need not see these measures as yet another way to exert pressure on Iran. Still, as a precaution, the European and other Western states should supplement the maritime security efforts with structured military-to-military communication with the Iranian side, including through a hotline that might be created to reduce the risk of miscalculation or misunderstanding that could lead to confrontation.

Helping Stabilise the New Status Quo in Nagorno-Karabakh

Almost a year after a Russian-brokered ceasefire ended the 2020 war in Nagorno-Karabakh, Azerbaijan and Armenia remain at loggerheads. With Armenian forces withdrawn, Russian peacekeepers now patrol the part of Nagorno-Karabakh that remains outside Azerbaijani control, but they are operating without a detailed mandate and risk being stretched too thin. Meantime, Baku and Yerevan have not begun to talk about resolving post-war tensions, much less wrestle with the political status of the breakaway region, over which Azerbaijan and Armenia fought a war in 1992-1994. The Organization for Security and Co-operation in Europe (OSCE) Minsk Group, charged with managing the peace process, stands ready to help, but Baku has been recalcitrant, saying that after the 2020 war that format is no longer relevant.

The situation thus remains unstable, with soldiers fortifying positions along the new front lines that separate Azerbaijani troops from local forces under the control of Nagorno-Karabakh’s de facto authorities. Tensions are also running high along the new, undemarcated sections of the border between Azerbaijan and Armenia, where opposing forces regularly exchange fire, resulting in casualties. Meanwhile, politicians on all sides trade barbs addressed both to their own constituencies and to one another.

This status quo affords international actors little space for engaging the conflict parties. Nonetheless, the European Union (EU) should keep facilitating the communication necessary to dampen tensions, as it has been doing since combat ended. It should also devise incentives that could, at some point, help bring real progress. To this end, it will need to work with Moscow, which has peacekeepers on the ground and the most leverage over the conflict parties.

The EU and its member states should:

  • Press Baku and Yerevan to begin talks to address post-war issues, including demarcation of the new borders between Armenia and the regions reclaimed by Azerbaijan in the 2020 war and other measures to stabilise the situation on the ground.
     
  • Urge the sides to enable aid to reach people in Nagorno-Karabakh who need it, even if resolution of the region’s long-term status remains elusive.
     
  • Work with Russia, France and the U.S. to keep possibilities open for the OSCE Minsk Group’s return to a mediating role, and continue shuttle diplomacy to mitigate tensions and resolve immediate problems.
     
  • Explore the extension of development assistance to uncontested border areas, beginning with a comprehensive needs assessment. Based on that assessment, be prepared to support separate projects in Armenia and Azerbaijan, cross-border cooperation on non-political issues, or both.

Continued Tensions

Six weeks of fighting from 27 September to 9 November 2020 took over 7,000 lives in and around the disputed region of Nagorno-Karabakh – an ethnic Armenian-majority enclave in Azerbaijan that declared its independence in 1991 and has been at the centre of tension and conflict between Yerevan and Baku. The 2020 hostilities fundamentally changed the situation on the ground. Azerbaijan regained control of a key town, Shusha, along with some of Nagorno-Karabakh’s mountainous areas and most of seven adjacent territories that Armenian troops had seized in the 1990s. Two weeks after the Moscow-brokered ceasefire came into effect on 9 November, Armenia withdrew its soldiers from the remaining adjacent territories, leaving them in Azerbaijan’s hands. Russian peacekeepers deployed to the parts of Nagorno-Karabakh that remained outside Azerbaijan’s control and along the road corridor that connects the region to Armenia through Lachin, the main town in one of the adjacent territories returned to Baku.

While the 9 November ceasefire ended the fighting, it did not bring a stable peace or resolve the longstanding questions about Nagorno-Karabakh’s political status.

While the 9 November ceasefire ended the fighting, it did not bring a stable peace or resolve the longstanding questions about Nagorno-Karabakh’s political status that underlie regional instability. Before the ink had dried on the ceasefire statement, Azerbaijani and local forces under the direction of the de facto Nagorno-Karabakh defence ministry began building new barracks and digging trenches along their new, much longer front line. The peacekeepers Moscow has deployed have kept things fairly quiet in the spots where they are stationed. But in places where there are no Russian forces, including along some sections of the Azerbaijani-Armenian state border, troops regularly exchange fire, leaving casualties on both sides.

The area between Armenia’s Gegharkunik region and the neighbouring Kelbajar district, now regained by Azerbaijan, has been the most volatile. In May 2021, as the snows began to melt, Azerbaijani soldiers established new observation posts in the mountains overlooking the new, but as yet undemarcated, border between the two regions. Armenia accused the Azerbaijanis of invading its territory and deployed its own soldiers forward. In late July, clashes culminated in a six-hour battle, with the sides using small arms, machine guns and grenades. While the bullets that strayed into nearby villages did not kill any civilians, the fighting left seven soldiers dead and eight wounded before calls from the Russian general staff to counterparts in Baku and Yerevan brought it to a halt. The casualty count from this and other clashes subsequent to the 9 November ceasefire is ten dead and twelve wounded.

More fighting seems likely if Azerbaijan and Armenia do not demarcate a border that takes into account changes in territorial control following the 2020 hostilities. But talks on this and other issues require a go-ahead from political leaders in both countries, and that approval has thus far not come. Baku and Yerevan are also impeding the delivery of humanitarian aid by each insisting that access arrangements must mirror their respective visions for the region’s political status. Armenia wants aid to flow both through its territory and Azerbaijan’s, while Azerbaijan insists on treating the territory as under its sovereignty and fully controlling access. Both governments refuse to budge, fearing that acquiescing in these matters would prejudice the eventual resolution of the territory’s status. This inflexibility when it comes to issues that touch in any way on the region’s status not only has humanitarian implications but creates risks for civil society actors on the two sides, who may be painted as traitors for wishing to engage one another and to tone down the increasingly antagonistic rhetoric in both countries.

Relations are so strained that the very framework for negotiations is now in limbo. For over 25 years, the OSCE Minsk Group co-chairs (Russia, the U.S. and France) have mediated between Azerbaijan and Armenia. But in the aftermath of the 2020 war, Azerbaijani President Ilham Aliyev declared the Nagorno-Karabakh conflict “resolved” and the OSCE Minsk Group process created to mediate it was therefore obsolete. Russia, the U.S. and France disagreed and convened the first meeting of the Armenian and Azerbaijani foreign ministers since the war under the auspices of the OSCE Minsk Group on the sidelines of the UN General Assembly on 24 September. Nevertheless, it remains to be seen whether they will be able to sway Azerbaijan to rejoin talks.

The two sides’ failure to talk about borders or Nagorno-Karabakh has forced Russian, U.S. and European diplomats to engage in painstaking shuttle diplomacy, by telephone and in person, to make incremental progress on basic humanitarian issues like sharing information about the location of landmines and detainee exchanges.

Meanwhile, the renewed fighting has imperilled plans for broader regional cooperation, in particular the reopening of transport and commercial links between Azerbaijan and Armenia promised in the 9 November ceasefire deal. Such cooperation is the one thing that Azerbaijani and Armenian leaders have tentatively begun discussing since the 2020 war, participating in Russia-led talks on the subject. But even this dialogue was derailed for some months following the recent clashes. After three months of no meetings, representatives from Russia, Armenia and Azerbaijan met in August to discuss transport and communications – but further fighting could stall progress once more.

Engagement with Purpose

The goal for the EU, its member states, Russia and the U.S. is to coax Baku and Yerevan to the negotiating table to discuss immediate post-war issues such as border demarcation and other measures to stabilise the situation on the ground, with a view to the potential launch of talks to normalise relations among the conflict parties. Pending such talks, however, they must do what they can to help defuse what remains a dangerous situation.

Brussels and its member states should persevere in the careful shuttle diplomacy [with Armenia and Azerbaijan] they have already undertaken.

To both ends, Brussels and its member states should persevere in the careful shuttle diplomacy they have already undertaken. For all the inherent challenges, the EU is well placed to play this role. For years, the institution’s engagement in Nagorno-Karabakh negotiations was limited because it was not a formal part of the OSCE Minsk Group. Today, Baku’s rejection of that process renders EU involvement crucial. Brussels’ direct channels with Baku and Yerevan have already helped, for example, make possible a June exchange of fifteen Armenian detainees for maps of Armenian-laid mines in the territories Azerbaijan regained in the war.

But EU engagement does more than fill gaps left by Baku’s rejection of the OSCE Minsk Group. EU diplomacy with Baku and Yerevan can also help define what role, if any, the OSCE Minsk Group might have in future discussions, whether concerning borders, Nagorno-Karabakh’s political status or humanitarian issues. The EU special representative for the South Caucasus is particularly well placed, and indeed mandated, to continue this work.

Given Moscow’s many roles in this conflict, including as mediator and peacekeeper, the EU will be required to work closely with Russia. Fortunately, and in sharp contrast to the many regions where European and Russian interests clash, Russia is amenable to collaboration with Western states when it comes to Nagorno-Karabakh. While it has taken the undisputed lead in setting the post-war agenda for Armenia and Azerbaijan, and is the only state with peacekeepers on the ground, it has also consistently reached out to the other OSCE Minsk Group co-chair countries, the U.S. and France, sharing information and coordinating calls and meetings. Paris and Moscow discuss Nagorno-Karabakh directly at the highest levels. In August, Russia appointed a new representative to the OSCE Minsk Group, Ambassador Igor Khovayev, who has sought to re-energise the format by travelling to the region to meet with and urge both sides to return to negotiations. He will likely welcome the EU’s help in doing so – and perhaps also in nudging Armenia and Azerbaijan to agree to a clear mandate for Moscow’s peacekeepers.

The EU should also seek to work with Russia to facilitate border demarcation. Moscow has tried to press Baku and Yerevan to begin talks on the subject, and Brussels can help define incentives to bring them to the table. In June, foreign ministers from Romania, Austria and Lithuania visited the South Caucasus to discuss confidence-building and border issues with Armenian and Azerbaijani leaders. The EU has followed up with offers of assistance. In addition to expertise on border management gleaned in the Balkans and between member states, the EU can offer to help mediate and provide technical support for the increasingly urgent challenge of water sharing across the new borders and lines of separation and other critical environmental and climate matters.

Then there is aid. The EU is already a substantial supporter of post-war rehabilitation efforts. Brussels allocated €7 million during the war to support direct humanitarian aid. In the spring of 2021, it promised €10 million more, to assist with post-conflict needs, including demining. Baku and Yerevan would welcome more help, but there are complications.

Azerbaijan would like more support to demine and rebuild in the seven regions it regained in the war, so that those displaced from those regions in the 1990s (and their families) can return. Per recent EU pledges, it will likely get more help with demining. But the EU prefers to offer development support in the form of loans, which Baku has long rejected, preferring grants.

Moreover, Brussels is leery of granting such support to these territories absent two things. One is a better understanding of what Baku plans for both reconstruction and resettlement of the previously displaced in earlier phases of the conflict. The second is a clear path to assist the nearly one third of Nagorno-Karabakh’s ethnic Armenian population displaced from territory now controlled by Azerbaijan as a result of the mid-2020 fighting, many of whom still lack sustainable housing. This last matter requires Azerbaijani-Armenian agreement on rules for international organisations’ access to the conflict zone. The impasse shows no sign of ending, but Brussels can and should keep the topic on its agenda with both capitals.

There are also things the EU can do right away, even as Baku and Yerevan remain unwilling to talk about most items. In July 2021, Brussels announced an ambitious multi-year assistance program in the EU’s eastern partnership countries, including Armenia and Azerbaijan. The EU’s support for Armenia includes potential financing of a road cutting deeper through Armenia’s mountainous territory and bypassing the existing route crisscrossing the border with Azerbaijan that has proven problematic. In September, Azerbaijani police established a new checkpoint on that main transit road, which is used by Iranian truckers shipping goods to Armenia and other parts of the Black Sea region.

Additionally, around €80 million in EU funding is allocated for investment in the economic development of the southern border region of Armenia, which not only suffered in the 2020 war, but now hosts both people displaced from Nagorno-Karabakh and new military positions that put civilian settlements at risk. The EU could consider expanding these development programs along the uncontested parts of the border between Azerbaijan and Armenia. Brussels would have to work out with Armenia what additional programs might be needed. It would also have come to terms with Baku both on what the EU is to offer Azerbaijan and how to resolve the problems of grants vs. loans and access to territories on its side of the line. But unlike activities in Nagorno-Karabakh, border region assistance raises no questions of status. For starters, the EU could offer a comprehensive needs assessment mission in the border regions. Based on this beginning, it could support separate projects in Armenia and Azerbaijan, cross-border cooperation on non-political issues, or both.

Nicaragua: Dealing with the Dangers of a One-Sided Poll

An unrelenting crackdown on the political opposition by the Nicaraguan government has turned November’s elections into a potential flashpoint and spurred a sharp deterioration in relations between President Daniel Ortega and other Latin American nations, the U.S. and the European Union (EU). At the start of 2021, almost three years after security forces met mass protests with violence – over 300 people, most of them demonstrators, died in the unrest – Ortega appeared to have consolidated his hold on power, in spite of the pandemic, and reaffirmed his political supremacy over a weak and fragmented opposition. Even so, the government has proven unwilling to take the risk of confronting an electoral challenge, opting instead for the iron fist. In recent months, state repression in Nicaragua has reached levels unseen in Latin America since the region’s dictatorships waned in the 1980s, with the government arresting at least 37 high-level opponents, including seven presidential hopefuls, and compelling many others to flee into exile. The government has also proscribed the parties on whose ticket the opposition candidates would have run.

These draconian steps have brought Nicaragua back into the international spotlight, and on to the EU’s radar, but as of yet outside powers have not mounted a concerted response capable of swaying Managua. Nor are they likely to do so. To date, neither punitive measures from Western governments nor the more diplomatic approaches of left-leaning Latin American states like Mexico and Argentina have made inroads with Ortega, who has reacted furiously to what he perceives as interference. As election day draws nearer, it seems increasingly likely that Ortega will stroll to victory in a one-sided election, creating the conditions for further instability, humanitarian crisis and emigration, and setting a dangerous precedent for a region seeing increasing movement toward greater authoritarianism.

Against this backdrop, the EU has called on Ortega to halt his autocratic drift and imposed individual sanctions on eight of his allies, bringing the total of sanctioned persons since 2018 to fourteen. The Nicaraguan government has pushed back hard. Member states who have been vocal in their criticism of Ortega have been condemned publicly by Nicaraguan officials or received private threats that Managua will expel their ambassadors. The European Parliament has called on the EU to increase pressure on Ortega, including by suspending Nicaragua from its association agreement with Central America, which establishes a free trade area with the region.

With the aim of mitigating the risks of repression, deepening instability, diplomatic isolation and a migrant exodus from Nicaragua, the EU and its member states should design a sequenced approach comprising the following steps:

  • Continue to press the government to stop arresting opponents, release political prisoners and meet certain basic electoral standards, such as allowing opposition campaigning, civil society observation of the polls and free press coverage of the process, with a view to rebuilding relations with European countries. The EU should also liaise with governments that still have communication channels open with Ortega in an effort to drive this message home to him.
     
  • Work with the U.S., Canada and other regional governments on a coordinated response at the bilateral and multilateral levels in the event of a non-credible election, potentially including expanded targeted sanctions and disciplinary measures by the Organization of American States (OAS) so long as these are calibrated to mitigate their humanitarian impact.
     
  • In coordination with the U.S., Canada and other regional governments, draw up a roadmap including clear conditions for lifting sanctions and restoring better working relations with Ortega’s government. The roadmap should include the resumption of dialogue with opposition forces on humanitarian and electoral issues, as well as a general framework for future political coexistence.
     
  • Step up humanitarian aid and technical support to neighbouring countries facing a rise in arrivals of Nicaraguan migrants and refugees, as well as support to humanitarian agencies liaising with migration authorities, shelters and processing systems in those countries.

An End to Electoral Competition

Since mid-2019, when the second round of talks between the Ortega government and the Civic Alliance, an opposition umbrella organisation, ended, the tug of war between the government and its political opposition has been frozen. But the balance of power between the sides has progressively shifted. Despite their initially egregious mishandling of COVID-19, the ruling couple of President Ortega and his wife, Vice President Rosario Murillo, managed to reestablish a firm grip on the country by late 2020. Infighting between the two main opposition blocs, spearheaded by the Civic Alliance and the Blue and White National Unity, hindered efforts to create a cohesive political front that could stand up to the government. Meanwhile, most foreign governments engaged with Nicaragua became absorbed in their own pandemic-related woes.

Notwithstanding its already strong hand, the government has sought to quash anyone who might pose an electoral challenge to its rule. Mindful of the 1990 election, in which the Sandinistas led by Ortega suffered a surprise defeat at the tail end of a decade-long civil war, the government has rolled out an unabashed strategy of coercion and intimidation. Between late 2020 and early 2021, the Sandinista-controlled National Assembly took a number of steps to entrench the current government’s power. It passed laws relating to foreign agents, cybercrime and treason that expanded its powers. It also extended the permissible pre-trial arrest period from 48 hours to 90 days. As 2021 proceeded, it appointed new loyalist magistrates to the Supreme Electoral Council.

At first, many observers assessed that the new legislation would be little more than a latent threat. But, starting in late May, judicial authorities proceeded to order the detention of 37 high-level opposition figures, including seven possible presidential candidates, on conspiracy and treason charges, while the Supreme Electoral Council stripped three parties of their legal accreditation and the National Assembly did the same to 45 civil society organisations, including six international NGOs. The government has also targeted the free press: press associations have privately reported attacks on at least 98 reporters in the first semester, including 35 women who were also victims of gender-based threats and harassment. The arrested men and women were held incommunicado for months, until authorities finally allowed brief family visits in late August. The state held their hearings in secret and sometimes in the absence of their lawyers, and relatives have alleged that prisoners are facing physical and psychological mistreatment – particularly women, according to the UN and Inter-American human rights organisations.

With politicians, business leaders, dissident Sandinistas and journalists among those detained, opposition groups [in Nicaragua] find themselves in complete disarray.

With politicians, business leaders, dissident Sandinistas and journalists among those detained, opposition groups find themselves in complete disarray. Most of their leaders are either in jail or in exile, while the remaining five candidates set to run against Ortega in November come from parties that most opposition forces consider to be government collaborators. The few opposition leaders who remain in Nicaragua have fallen silent and seem unable to agree on whether to boycott the polls or to ask supporters to spoil their ballots.

The Consequences of a Rigged Election

Ortega’s authoritarian moves risk stirring up the grievances at the heart of the country’s unresolved crisis. Enjoying only roughly half the popular support he enjoyed before 2018 (surveys show his ratings are stable at around one third of the population) and having damaged, perhaps irreparably, relations with the private sector and the Catholic Church after the crackdown on mass protests, Ortega is operating in an increasingly hostile environment. Three consecutive years of recession have piled ever more hardship on a population that was already among the poorest in Latin America.

The recent wave of arrests has fuelled discontent among Ortega’s adversaries and may raise the prospect of episodic political violence, which tends to increase in election years. Urnas Abiertas, a civil society organisation that monitors elections, recorded 1,375 acts of political violence, most of them harassment, between 1 October 2020 and 15 August 2021. Even though mass protests are unlikely to resurface in the short term given the highly repressive climate, state violence and economic despair could rekindle the “protest spirit”, in the words of a Nicaraguan security expert. An additional uncertainty is that Ortega, who turns 76 in November, has reportedly been suffering health problems. His sudden demise could spark unrest as potential successors jockey for power, given that he has no heir apparent with strong support in Sandinista ranks.

The combination of economic stress and political persecution is also likely to prompt yet more Nicaraguans to flee.

The combination of economic stress and political persecution is also likely to prompt yet more Nicaraguans to flee. After three years in which Nicaragua’s GDP contracted by more than 3 per cent, the World Bank predicted the country to be the third worst economic performer in the Western Hemisphere in 2021, behind Venezuela and Haiti, though its recent update is more optimistic. A rigged election would only isolate the government further, driving away more private investment (which has already nosedived in recent years) and hindering Managua’s access to multilateral loans, as the U.S., the EU and other stakeholders are likely to vote against their disbursement.

Already, these conditions plus stepped-up repression are having an effect: more than 16,000 Nicaraguans booked hearings to file asylum requests in Costa Rica between June and August, marking the start of a second wave of arrivals, according to a UN official. But with Costa Rica’s migration system overwhelmed since 2018 with a backlog of 89,000 unresolved asylum requests, Nicaraguans are increasingly looking to other destinations, above all the U.S. The number of Nicaraguans apprehended at the U.S. southern border has dramatically increased in 2021, from 575 in January to 13,391 in July, when it topped the number of Salvadorans for the first time in decades. The Nicaraguan surge toward the U.S. border is set to hit a record for the 2021 fiscal year, with 43,327 apprehensions so far, many of them people travelling in family units.

Events in Nicaragua could well resonate beyond the its borders. Other political leaders in Central America may feel emboldened to follow in Ortega’s footsteps, particularly if the U.S. prioritises cooperation on migration control and counter-narcotics and imposes few costs for democratic backsliding. In El Salvador, President Nayib Bukele has already been concentrating power and chipping away at judicial independence; among other things, the Salvadoran Constitutional Court – newly packed with the president’s political allies – has overturned a constitutional prohibition on presidents running for immediate re-election at the end of their term. In Honduras, voters will also head to the polls within weeks of the Nicaraguan elections to choose a successor to President Juan Orlando Hernández, who has been cited several times as a co-conspirator in drug trafficking trials in New York courtrooms – including that involving his brother, sentenced to life imprisonment in March. (Hernández has denied all accusations of involvement in the drug trade.) Although he is not eligible to stand for election again and has publicly ruled out doing so, Honduran analysts fear that Hernández may meddle in presidential politics, either to impose his preferred candidate, Nasry Asfura, or to keep a grip on state and judicial institutions.

The Way Forward: A Sequenced, Coordinated Approach

Against this backdrop, the EU and its member states, along with other outside actors with influence in Managua, should step up their engagement in Nicaragua. While there is little if anything outside actors can do to change Ortega’s immediate electoral strategy, looking away is not a good option, either. A failure to criticise increasing repression or impose costs for election fixing would send a dangerous signal, and increase the risk that other Latin American leaders resort to destabilising anti-democratic tactics in their own countries. Although the targeted sanctions and critical messaging that the EU has deployed to date have prompted a bristling response from Managua, Brussels should not back down. It should, however, choreograph its next steps carefully.

First, Brussels and EU member states should work with the U.S. and regional partners to prioritise the demands that they will be making in advance of the elections. They should continue to call on Ortega to halt the crackdown against political dissent; to release political prisoners; and to allow national and foreign journalists and civil society organisations to monitor the election. They should work through their few remaining diplomatic channels and with parties to which Managua might be receptive (including the Vatican and friendly regional governments such as Bolivia and Peru) to persuade Ortega that his best interests lie in meeting minimum electoral standards in order to restore working relations with foreign partners and financial institutions, and to warn that without improvements in these areas, they will respond robustly – including with additional targeted sanctions – to credible accounts of election rigging. Imposing additional sanctions before the polls, on the other hand, runs the risk of fuelling Ortega’s ire and attacks on the opposition rather than taming them. Once the vote has been cast and he has achieved his goals, the president’s calculations are likely to be different and pressure tools of greater use.

The EU and its partners ... should calibrate the measures they take [to sanction Nicaragua] to mitigate the humanitarian impact they might have.

Meanwhile, the EU should work with the U.S. and others to prepare a firm and coordinated response to the election if (as is likely) it does not meet minimum international standards. That response should include the expansion of the existing sanctions framework to include targeted measures against individuals, businesses and institutions that contributed significantly to the election-related crackdown. Brussels and member states should additionally explore with the Organization of American States the possible activation of procedures for Nicaragua’s temporary suspension on the grounds of Ortega’s interruption of the country’s democratic order. But the EU and its partners, including the U.S., should calibrate the measures they take to mitigate the humanitarian impact they might have, particularly in light of Nicaragua’s ailing economy. In particular, they should refrain from ejecting Managua from free trade agreements such as the EU association agreement and the Central America Free Trade Agreement (CAFTA), which would severely affect the country’s export-oriented economy and could spur migrants to leave at an even greater pace. Because further migration seems inevitable, donors should also scale up financial and technical assistance – such as legal counselling to migrants – and humanitarian aid to neighbouring countries’ shelters and civil society organisations, as well as to multilateral agencies that support migration authorities and Nicaraguan migrants and refugees.

At the same time, the EU, U.S. and OAS countries should draw up a roadmap for how Ortega can revitalise declining diplomatic relations, including eventual reintegration in the Inter-American system (should Nicaragua be suspended) and the lifting of sanctions. The milestones that they set forth should draw on the requests made by the EU upon adopting its sanctions framework in October 2019, namely: government compliance with the agreements struck with the Civic Alliance in March 2019, including respect for civil and political rights and release of political prisoners; access to Nicaragua for international human rights bodies; and resumption of talks with the opposition. These objectives should be coordinated with other concerned states, and all should make clear that their focus is on persuading Managua to end the crackdown and restart talks with the opposition.

As for future negotiations between the government and opposition, these should aim not only to address the country’s humanitarian emergency and achieve electoral reforms, but also to forge an agreement on political coexistence that could enable the two sides to begin overcoming their enmity. The sides could decide to create a truth commission with a broad mandate going beyond the events of 2018, for instance; such a body would have to ensure fair representation from both the government and opposition as well as international experts among its members. Signs of progress in negotiations facilitated by Norway in Mexico to heal deep rifts between the Venezuelan government and opposition may help lure Ortega into contemplating a similar process.