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Impunity and Justice: Why the UN Human Rights Council Must Stay Engaged in Sri Lanka
Impunity and Justice: Why the UN Human Rights Council Must Stay Engaged in Sri Lanka
Why Trump Should Take It Slow With Kim Jong Un
Why Trump Should Take It Slow With Kim Jong Un
Sri Lankan Tamil women hold up photographs of their missing family members as they wait to hand over a petition to the U.N. head office in Colombo on 13 March 2013. REUTERS/Dinuka Liyanawatte
Commentary / Asia

Impunity and Justice: Why the UN Human Rights Council Must Stay Engaged in Sri Lanka

As the United Nations Human Rights Council meets in Geneva this month, it’s time to assess how far Sri Lanka has come since last year’s passage of a landmark resolution to promote reconciliation, accountability and human rights.

Resolution 30/1, adopted in October, was a major achievement for the Council – and an important milestone in Sri Lanka’s journey toward lasting peace and a just settlement of its decades-old ethnic conflict. Following years of bitter resistance by the previous Sri Lankan government to international efforts to encourage post-war reconciliation and accountability, the new government led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe displayed admirable political courage in negotiating a consensus resolution containing many of the elements needed for a sustainable peace.

However, Sri Lanka today is not yet the success story that many in the international community claim it to be. Progress on implementing the Council resolution has been slow and often grudging, and there are growing doubts about the government’s political will and ability to see the complex process through. For Sri Lanka to stay on the path toward recovery, it needs sustained international support and engagement.

Speaking at this critical juncture, High Commissioner for Human Rights Zeid Ra’ad Al Hussein this week encouraged the government to prepare a comprehensive strategy on transitional justice with “inclusive and meaningful engagement from all Sri Lankans”. As Zeid prepares to report to the Council on 29 June on progress toward implementation of the resolution, member states should send strong public and private messages to the Sri Lankan government, offering financial, capacity-building and other tangible support for its efforts – as well as clear suggestions for improvement.

The Reform Agenda

The government has adopted an ambitious reform agenda to address the many challenges the country faces: keeping a beleaguered economy afloat, strengthening the rule of law, tackling corruption, drafting a new constitution, promoting reconciliation efforts with the Tamil population in the north and east, and establishing a multi-pronged set of transitional justice mechanisms agreed with the Council.

Unfortunately, the entire program risks collapse unless new energy, focus and resources are brought to bear. A weakening economy and slow going on most other fronts have led to waning support from the key constituencies that brought the government to power – Tamils, Muslims and reform-minded Sinhalese. Belief in the possibility of meaningful progress is fading across the board.

Efforts of the national unity government – a coalition between President Sirisena’s Sri Lanka Freedom Party (SLFP) and Prime Minister Wickremesinghe’s United National Party (UNP) – have been weakened by a variety of factors. First, the government lacks technical capacity and trained personnel on key issues. Second, there is no unified strategy for advancing reforms – with the SLFP split between Sirisena’s wing and supporters of ex-President Mahinda Rajapaksa, and often at odds with the UNP, particularly on economic policy. Third, the administration has not mounted a coherent public relations campaign to sell its successes and build support for the more politically controversial aspects of its program, including transitional justice.

The most critical element of the reform agenda is how to tackle the entrenched culture of impunity, which has fed multiple bloody insurgencies over the past 40 years. Sri Lanka must seize this narrow window of opportunity to address the problem. Failure to succeed in this effort will undermine virtually all the other reforms the government says it wants to achieve. Progress toward ending impunity is essential to reestablishing the rule of law for all ethnic communities, reasserting civilian control over the military and building the trust needed for a lasting political solution.

Notable progress has been made toward a new constitution, as parliament has begun to meet as a constitutional assembly. The report of the Public Representations Committee, tasked with gathering ideas from the public, was issued at the end of May. It endorsed a range of bold reforms, including the incorporation of a bill of rights. The committee failed to reach agreement, however, on expanded devolution of power for Tamil-majority regions in the north and east, a key issue noted in the Council resolution. With parliamentary consensus likely to fall well short of long-standing Tamil demands for federalism and national self-determination, the government and the Tamil National Alliance (TNA) could face a major challenge in winning Tamil backing in the referendum needed to approve the new constitution, with the pro-engagement leadership of the TNA weakened as a result.

Transitional Justice

Sri Lanka has made only halting efforts toward developing the four transitional justice mechanisms pledged to the Council – a truth commission, reparations and missing persons offices and, most controversially, an independent special court for war crimes with international participation. The national unity government should be encouraged to design and sell its Council-mandated transitional justice efforts as part and parcel of its larger agenda to promote “good governance” and the rule of law, which has widespread public backing in all communities. Meanwhile, donors should deepen their support – through training, equipment and personnel – to build the Sri Lankan state’s capacity to establish effective justice mechanisms, strengthen criminal investigations and improve witness protection.

 

Transitional justice efforts should be sold as part and parcel of the good governance agenda.

In advance of this month’s Council sessions, the government has scrambled to finalise a package of reforms it can present as evidence of progress. At the top of the list is the Office of Missing Persons (OMP), legislation for which was approved by the cabinet on 24 May and is expected to be presented to parliament in the coming days. While the proposed office would likely help thousands of families seeking information about their loved ones who went missing during the civil war, it has been criticised for lacking any effective link to criminal investigations and thereby potentially maintaining impunity for large-scale enforced disappearances. The government has also been criticised for its hurried and minimal consultation with victims’ families prior to finalising the proposed legislation. Council members should encourage the government to submit the draft bill, prior to parliamentary approval, to the national consultations process that is due to get underway by the end of June – both to improve the quality of the legislation and to win back flagging confidence among victims’ groups and civil society.

The government’s recent ratification, in May, of the UN Convention on Disappearances is a welcome move. Incorporating the treaty in domestic legislation, as promised to the Council, will be even more significant. These steps will mean very little, however, if the government remains unable or unwilling to prosecute cases of abduction and murder, particularly those for which they already have substantial evidence.

International participation is essential to the credibility of the special court.

Council members and the High Commissioner should press the government to follow through on its commitment to meaningful forms of international participation on the proposed special court for war crimes. The Council resolution specifies the importance of including “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators” in a Sri Lankan judicial mechanism. Under domestic pressure, the president and prime minister backed away from promises to the UN and announced there will be no foreign judges. Given the decades-long failures of government commissions and judicial processes, international participation is essential to the credibility and effectiveness of the special court. Council members should insist that the government holds the line on the involvement of international judges, at least in observer roles, and devises concrete plans for outside experts to be included in investigations, prosecutions, forensics and witness protection.

Prosecution of military personnel, particularly with foreign legal involvement, was always sure to be the most controversial aspect of transitional justice for many Sinhalese. There needs to be a clear strategy to address Sinhala nationalist resistance, including by actively promoting the benefits of transitional justice for all communities. Instead, the president, prime minister and other key officials have regularly retreated when criticised by Rajapaksa and his nationalist supporters.

Even the most optimistic assessments of the government’s transitional justice policies suggest the government intends to postpone any moves to establish the promised special court until after March 2017, when the High Commissioner is due to issue his final report on implementation of the Council’s 2015 resolution. While justice for crimes committed by both sides during the war will necessarily take a long time to achieve, further delays in even initiating the process will only confirm suspicions that the government is merely buying time until the international community loses interest.

Legislation to establish transitional justice mechanisms must be on the books by next year.

Council members should press the government to begin building the legal, institutional and staffing capacity needed for all the promised transitional justice mechanisms. The High Commissioner should insist that legislation needed to establish these mechanisms must be on the books by March 2017, in advance of that month’s Human Rights Council session. These measures should include legislation to criminalise war crimes and crimes against humanity, and to establish command responsibility as a mode of criminal liability.

Rule of Law and Anti-Corruption

Confidence is faltering in the government’s commitment to restore the rule of law, a pledge that was central to the January 2015 election of Sirisena. Investigating complex financial crimes and political killings under the former regime is undoubtedly a slow, difficult and dangerous work. The challenges are made more acute by the involvement of key figures from the old regime still serving as ministers, bureaucrats and law enforcement officials, some of whom are known to be actively obstructing progress. There is increasing evidence that senior officials in the Attorney General’s department and in the military have blocked important criminal investigations.

Sri Lankan opposition party workers erect a cutout of their presidential candidate Maithripala Sirisena in the north central town of Polonnaruwa on 30 November 2014. AFP/Lakruwan Wanniarachchi

The government must take steps to dismiss or discipline obstructionists. Officials who lobbied to undermine UN efforts to support justice and accountability under the Rajapaksa regime should also be removed from policymaking positions. In order to address long-criticised conflicts of interest in the Attorney General’s department, it is necessary to establish a permanent, independent special prosecutor for serious human rights cases in which state officials are alleged perpetrators.

It is necessary to establish an independent special prosecutor for serious human rights cases involving state officials.

Meanwhile, credible reports indicate that witnesses in criminal cases implicating the security forces are facing serious threats. The government has yet to establish an effective witness protection program or revise its weak witness protection law, in compliance with a clause in last year’s Council resolution promising to do so.

Progress on key criminal cases is needed to reverse the growing sense that the national unity government is not substantially different from previous corrupt and inefficient governments. Progress on less politically controversial cases is also essential to rebuild confidence that the government is willing to tackle impunity and can establish a credible process of accountability for war-related crimes.

Adoption of some important legal and institutional reforms is said to be very close – including legislation to replace the repressive Prevention of Terrorism Act (PTA) with new laws consistent with human rights standards, as required by the Council resolution. However, recent arrests under the PTA have violated due process and reawakened fears of a return to “white van” abductions, which were a primary means for hundreds of enforced disappearances under the Rajapaksa government. Detainees are still being held under the sweeping provisions of the law.

The government should not wait for repeal of the PTA before ending violations.

Council members need to press the Sri Lankan government to end abuses by the Terrorism Investigation Division of the police (TID), which continues to detain suspects without charge, often in aggressive and humiliating ways. TID must be made to follow established procedures – recently reiterated by Sri Lanka’s Human Rights Commission – on detentions, and personnel suspected of involvement in serious abuses must be suspended, investigated and prosecuted. The government should not wait for repeal of the PTA and the establishment of a new system before acting to end current violations.

Confidence Building and Military Reform

On ethnic issues and the legacy of the war, the president and other senior officials have set a more conciliatory tone – seen most recently in the much less triumphalist commemoration of the seventh anniversary of the end of the civil war. Nonetheless, the past six months have seen very little progress on the key issues of concern to Tamils in the north and east – concerns reflected in the text of last year’s Council resolution: the release of hundreds of detainees held under the PTA, the return of land held by the military, investigations into the tens of thousands of forcibly disappeared people, and the removal of the military from civilian affairs in the north and east. Indeed, progress has been so slow and grudging that what were intended to be confidence-building measures have become confidence-weakening measures.

Trust in the government’s good intentions has also been damaged by the tight and often intimidating surveillance of Tamil civil society activists by military and police, and by unwarranted arrests. The president and prime minister appear wary of asserting their authority over the military, and there has been little movement toward developing a longer-term plan for security sector reform. The inability to gain effective civilian control over the military is one factor behind the government’s slow implementation of its other Council commitments. This in turn undermines public confidence, especially among Tamils, in the government’s political will to guarantee justice for all.

Donors should use their leverage to encourage the long hard work of restructuring the military for peacetime duties.

The government should be encouraged to start developing a comprehensive plan for security sector reform. Such a plan should aim to reduce the military’s social, political and economic footprint in the north and east, as well as to include job training, re-employment programs and psycho-social support for demobilised soldiers. Many ex-soldiers are severely traumatised and caught in continued cycles of violence – in the home and on the street, sometimes as hired thugs for politicians. Foreign militaries now working more closely with Sri Lanka should make offers of technical support for security sector reform a central component of their re-engagement. Donors should use their leverage – including the prospect of additional deployments of Sri Lankan troops as UN peacekeepers – to encourage the long hard work of restructuring the military for peacetime duties.

As the past nine months of fitful and partial implementation of last year’s consensus resolution make clear, the political challenges ahead in Sri Lanka are considerable. For there to be a realistic chance of ending the culture of impunity and establishing effective forms of transitional justice, the Human Rights Council and other UN mechanisms will need to remain engaged beyond March 2017. Consideration of Sri Lanka by the Council remains one of the primary factors driving action – as is evident by the flurry of activity in recent weeks.  Member states should begin discussions now about what form continued engagement can take. Among other options, Council members should encourage the Sri Lankan government to invite an expanded presence of the Office of the High Commissioner for Human Rights, whose resources in Sri Lanka remain insufficient to meet the many pressing demands.

Sri Lanka’s much-improved engagement with UN agencies and human rights mechanisms is to be welcomed. But it is not enough. What all of Sri Lanka’s communities need and deserve now are tangible changes in legislation and concrete implementation of its international promises and obligations on the ground.

Op-Ed / United States

Why Trump Should Take It Slow With Kim Jong Un

Originally published in Politico Magazine

Any successful deal with North Korea will require an extraordinary amount of patience and attention to detail.

After three months of palace intrigue, speculation and on-again-off-again pronouncements, the Singapore summit between Donald Trump and Kim Jong Un is finally upon us. The core question is whether this historic meeting between two idiosyncratic leaders who were just months ago exchanging taunts like “Little Rocket Man” and “dotard,” and one-upping each other’s threats of nuclear annihilation, can help find a path toward denuclearization and stability for the Korean Peninsula.

We both worked in the Obama White House but this is not a partisan matter and we are rooting wholeheartedly for this administration’s success. Nobody will benefit if the leaders walk away from the summit disappointed and frustrated, and there’s certainly some risk of that. If the parties try to accomplish too much in Singapore, or if they fail to identify a realistic game plan for the period that follows, then they could return to the escalating standoff that characterized their relations throughout 2017. But toxic frustration is not the only alternative. As a senior U.S. diplomat recently told us, if the complete failure to reach agreement is on one end of the spectrum of possibilities, and a “bad deal” for the United States is on the other, there is plenty of space for a positive result in the middle.

We agree. In a report authored for International Crisis Group, we try to steer the parties toward a so-called “deep freeze” that each party might be able to claim as its own version of that middle ground.

First, during the summit, the two leaders should agree on a short declaration of principles that sets forth each party’s strategic priorities, putting off talk for now of a full-blown treaty — something impossible to do responsibly in the given time. In Washington’s case, the priority would no doubt be a commitment to denuclearization. Pyongyang, which above all else wants a redefined political and security relationship with Washington, might ask the United States to affirm that it harbors no “hostile intent” toward North Korea. The parties could commit to sustain the testing pause already in place and other confidence-building measures — perhaps a ratcheting back of some aspects of joint U.S-South Korean military exercises. And the leaders could commit to meet again.

It took Pyongyang 70 years to acquire a nuclear capability that it regards as fundamental to its security, and there are limits to how far and how fast it will go down a new path.

But while this would set a helpful frame for future talks, Washington and Pyongyang have generated similar documents in the past, and North Korea’s nuclear program has advanced anyway. So beyond the declaration, the parties need to come up with a plan for what needs to happen after the summit so that the odds for success are better this time around. Here again, the plan needs to be informed by a healthy dose of realism. It took Pyongyang 70 years to acquire a nuclear capability that it regards as fundamental to its security, and there are limits to how far and how fast it will go down a new path. The strategic implications are too great, the bilateral trust deficit is too deep, and the North Korean nuclear program is too big and advanced to follow the path that Libya took in 2003 and 2004, when it dismantled its nuclear infrastructure in short order and shipped much of it to Oak Ridge, Tennessee. That is why we believe it may be useful to aim for a way station that would move the parties in the direction of denuclearization without getting them all the way there in one fell swoop.

Our road map to a “deep freeze” would bring the parties to a verifiable cap on the production of nuclear weapons, plutonium and enriched uranium, and long-range missiles—i.e., missiles capable of striking the U.S. and whatever other missiles the parties agree should be part of the arrangement. We don’t set a time frame but this could be done even within the current presidential term if the parties set their minds to it. The plan has four steps:

  • The first step, which could be done very quickly, would be to flesh out and formally commit to the elements of the current pause that Pyongyang has carried out unilaterally. For example, while North Korea has ceased all missile and nuclear testing, it is not clear whether it intends to refrain from all short- and medium-range missile launches, or from space launcher development. These matters should be clarified.
     
  • The second step, which will take months to negotiate and implement, would involve measures to broaden the scope of the pause and make it more resilient. North Korea would sign the Comprehensive Test Ban Treaty, thereby committing itself not to test nuclear weapons. And it would permit outside observers or remote monitoring equipment to be introduced at key sites in North Korea, both to begin answering questions about its baseline capabilities and to create some practical obstacles to the resumption of paused activities. (It’s harder to do the wrong thing if observers are on site.)
     
  • The third step, the most challenging of the plan, would involve expanding the monitoring regime to encompass the entirety of North Korea’s nuclear and long-range missile production capabilities, including the science and production base that support these capabilities. By the end of the third step, observers or monitors would be permitted wherever they need to be in order to form a comprehensive baseline of the North Korean nuclear and missile-related activities to be frozen. This step is more difficult than either of those preceding it because it would require North Korea to disclose the location of secret activities to the U.S., which theoretically could use that information for military purposes should relations revert to earlier form. North Korea will almost certainly insist on security guarantees before it permits this step.
     
  • The fourth step would be the establishment of a full production cap and freeze for nuclear weapons, plutonium and highly enriched uranium, long-range missiles and other programs and technology related to the capability to produce them. It might also include limits on the production and stockpiling of components required for nuclear and missile production, such as uranium mining, centrifuge production, and the manufacture of missile engines.
If Washington fails to balance its ambitions with a healthy dose of realism, it could come up empty handed.

In considering this plan, Washington would need to accept that North Korea is not going to move down this path unless it sees the United States taking corresponding measures. For this reason, while Washington has resisted an action-for-action framework for its engagement with Pyongyang, it is the only viable approach. As for what some of those measures might entail, on the political front, North Korea would like to see the United States enter into a peace agreement that ends the Korean War and afford it diplomatic recognition. On the security front, it might want to see the ratcheting back of U.S.-South Korean joint military exercises, a written renunciation of any first strike by one party against the other, and a commitment not to deploy nuclear-capable bombers and submarines in or around the Korean Peninsula. On the economic front, sanctions relief (especially in key economic sectors like seafood and textiles) will be important. While some measures may be relatively straightforward for the United States to take early on in the process, it may hold others for later in the game.

Our plan might be seen as too little by some who want immediate results. We too want rapid results, but we also caution against magical thinking. North Korea won’t be threatened into giving up its nuclear weapons, and if Washington fails to balance its ambitions with a healthy dose of realism, it could come up empty handed — and risk a relapse into the crisis mode that characterized 2017. That scary period seems like a long way away from this week’s circus atmosphere in Singapore, but the parties could be back there very quickly if talks fail. We hope prudence and patience guide them instead, and they see that moving down a calibrated path in the right direction is better than racing back to a stand-off on the edge of a very dangerous cliff.

Contributors

Program Director, United States
StephenPomper
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Jon B. Wolfsthal
Non-resident Scholar at Carnegie