Arrow Left Arrow Right Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Twitter Video Camera Youtube
Sri Lanka Between Elections
Sri Lanka Between Elections
Table of Contents
  1. Executive Summary
Statement on the UN Sri Lanka Investigation Report
Statement on the UN Sri Lanka Investigation Report
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
Report 272 / Asia

Sri Lanka Between Elections

Sri Lanka’s 17 August parliamentary elections will test the country’s fragile democratic opening. With the hardline Sinhala nationalism of ex-President Mahinda Rajapaksa challenging the “good governance” agenda of the United National Party and President Sirisena, the outcome will affect chances for reconciliation and lasting resolution of the country’s long-running conflicts.

Executive Summary

A half year after Maithripala Sirisena’s stunning defeat of President Mahinda Raja­paksa raised hopes for democratic renaissance, the complexities of partisan politics, and Rajapaksa himself, have returned to centre stage. Sirisena’s initial months with a minority government led by the United National Party (UNP) have opened important political space: robust debate and criticism have replaced the fear under Rajapaksa, and important governance reforms have been made, but much remains undone. By initial steps on reconciliation, the government set a more accommodating tone on the legacy of the civil war and the ethnic conflict that drove it. But divisions within government and Sirisena’s failure to take control of his Sri Lanka Freedom Party (SLFP) prevented deeper reform and allowed Rajapaksa and his supporters to mount a comeback. With Sirisena opposing Rajapaksa’s return, the 17 August parliamentary elections will test the continued appeal of the ex-president’s hardline Sinhala nationalism and give a chance for the fresh start that lasting solutions to the country’s social divisions require.

Before running out of steam in June, Sirisena’s first six months saw notable achievements. Most important was parliament’s April passage of the nineteenth amendment to the constitution. Largely fulfilling the central pledge of the joint opposition campaign, it considerably reduced presidential powers and established independent oversight commissions. Though the original draft was watered down, the amendment is a welcome move away from authoritarianism and could assist in re-establishing the badly-damaged rule of law. As promised in their election manifesto, Sirisena and his UNP partners also launched scores of investigations into alleged major fraud and abuse of power by officials of the former government. While the unprecedented scale of the anti-corruption drive raised public expectations, the lack of indictments thus far has fed rumours of backroom deals and growing doubts that the institutional and political obstacles to effective prosecutions can ever be overcome.

The bright hopes of the government’s initial months were increasingly tarnished by unclear, ad hoc policies, frequently contradictory policy statements and missed deadlines for pledged reforms. As parliamentary elections, originally promised for June, were postponed, the coalition that elected Sirisena began to fragment. While the UNP and smaller parties urged him to dissolve parliament and hold elections after passage of the nineteenth amendment, he spent months trying and failing to win over the SLFP, whose nominal leadership he assumed after winning the presidency, following a decade of Rajapaksa at its helm.

The SLFP, which has a large majority in parliament, resented Sirisena’s unprecedented experiment with a “national government” dominated by its arch-rival UNP. Many SLFP parliamentarians remain loyal to Rajapaksa; others see the ex-president as the party’s best chance to retain its majority in the next parliament, given his popularity among Sinhala voters. After months of resisting Rajapaksa’s selection as the prime ministerial candidate of the SLFP-led United People’s Freedom Alliance (UPFA), lack of support in the party forced Sirisena to yield in early July.

Sirisena has since made it clear he opposes Rajapaksa’s candidacy and will not appoint him prime minister, even if the UPFA wins an unlikely majority. The ex-president’s opponents within the SLFP, along with smaller parties, have joined a new version of the UNP-led coalition that brought Sirisena victory in January, now re-energised by the threat of a Rajapaksa comeback. With the UPFA arguing the UNP threatens national security and supports Tamil separatism, the election will test the strength of Rajapaksa’s brand of Sinhala nationalism, as well as the depth of public concern over corruption and abuses of power. Even if he cannot become prime minister, Rajapaksa’s leadership of a large Sinhala nationalist bloc in parliament could make it harder for a UNP-led government’s to act as promised on reconciliation and accountability.

The Sirisena-UNP government set a new, less Sinhala triumphalist tone on ethnic issues and took some steps for reconciliation: releasing a number of Tamil political prisoners and limited amounts of military-occupied land in Tamil areas, while reducing the presence, though not size, of the military and its involvement in governing the north and east. Despite growing frustration among many Tamils, larger moves have been put off until after elections, as has action on alleged war crimes by both the military and the defeated Tamil Tigers. The government promises a credible domestic inquiry that meets international standards, but doubts about its willingness and ability to tackle institutionalised impunity and prosecute war crimes are widespread and well founded. Successful prosecutions require significant legal and institutional reforms and management of resistance from military leaders and nationalist parties.

The UN Office of the High Commissioner of Human Rights (OHCHR) is due to deliver its long-awaited war crimes report to the UN Human Rights Council (HRC) before it meets in September. At that session, the newly-elected government should commit to the legal reforms needed to effectively prosecute serious human rights violations suffered by all ethnic communities, including war crimes; to pursue prosecutions with adequate witness protection and international involvement; and to consult widely with victims, survivors and community groups on its longer-term program of transitional justice, including a possible truth commission. To be effective, these processes will require consistent international scrutiny and participation, including OHCHR assistance to investigations and continued monitoring and reporting to the HRC.

The parliamentary elections offer voters the chance to renew the mandate for change they gave Sirisena and the UNP in January. A strong showing by the Raja­paksa-led UPFA, however, would complicate the president’s plans to form a broad-based “national” government between the UNP, smaller parties and the reformist wing of the SLFP and place obstacles to further progress on much-needed governance reforms and reconciliation. Sri Lanka’s chance to finally start on the road to a sustainable resolution of the country’s decades-long ethnic strife, including a negotiated political settlement, depends on the outcome.

Colombo/Brussels, 12 August 2015

Statement / Asia

Statement on the UN Sri Lanka Investigation Report

The release on 16 September of the long-awaited report by the UN Office of the High Commissioner for Human Rights (OHCHR) on its Sri Lanka investigation (OISL) is a dramatic advance that can help the country respond to its painful legacy of war. The report is a compelling examination of the abuses committed by all sides during the lengthy civil conflict and the steps required to pursue justice, accountability and reconciliation as part of democratic recovery. The UN Human Rights Council (HRC), which mandated the report, should demonstrate the same leadership by endorsing and supporting its conclusions and recommendations at the present session.

The report found a “horrific level of violations and abuses” between 2002 and 2011 and presents evidence of violations by government forces, pro-government paramilitaries and the separatist Tamil Tigers (LTTE) “that are among the most serious crimes of concern to the international community as a whole”. These include indiscriminate shelling, extrajudicial killings, enforced disappearances, torture and sexual violence, recruitment of children and the denial of humanitarian assistance. The report confirms accounts from victims and survivors of systematic war crimes committed during the final, brutal months of the civil war and immediate aftermath.

Particularly notable is the clear finding that the Sri Lankan criminal justice system remains incapable of conducting credible investigations and prosecutions of these sensitive matters. Arguing that “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises”, the report calls for establishment of a “hybrid special court, integrating international judges, prosecutors, lawyers and investigators”. This recommendation merits particular endorsement by the Human Rights Council, given that the government’s resistance to international participation in investigations, witness protection or trials invites doubts about its ability to achieve its own stated goals of justice, accountability and reconciliation and undermines the trust of survivors and witnesses whose testimony will be crucial.

The report comes two days after Foreign Minister Mangala Samaraweera acknowledged to the Council the institutional challenges Sri Lanka faces. His speech was a welcome departure from the aggressively nationalist and authoritarian policies of the former government and highlighted important points of convergence “on the fundamental need to address the disputed legacy of Sri Lanka’s brutal civil war”. The foreign minister described the ambitious proposals he laid out – including a truth and reconciliation commission, offices for missing persons and reparations, a “judicial mechanism with a special counsel” and a new constitution – as designed to respect “the right of victims to a fair remedy and … to address the problem of impunity for human rights violations suffered by all communities”. However, missing from his welcome recognition of the magnitude of the challenges was acceptance of the compelling need for outside independent international participation in this crucial judicial process, particularly in investigations, development of prosecutions, and witness protection. Such participation, as the report recommended, would add important guarantees to all concerned.

Combined with implementation of key reforms the government proposes (some of which would receive support and advice from South Africa and the International Committee of the Red Cross), effective judicial prosecution of those most responsible for the most serious crimes committed by all sides in the war would promote the genuine reconciliation necessary for a sustainable peace.

Sri Lanka has seen decades of failed investigations and prosecutions, with fewer than half a dozen successful prosecutions of (low- and mid-level) military personnel for hundreds of serious human rights cases. No senior commander has ever even been charged with a war-related crime, and the military retains significant autonomy from civilian oversight. Witnesses and rights activists in the Tamil areas of the north and east continue to be threatened. Police investigations into a few high-profile cases from the Rajapaksa era reportedly face resistance from military leadership. Legislation parliament approved for a witness- and victim-protection system in February has yet to be implemented and lacks provision for protection units independent of the police and testimony of the many witnesses outside the country.

The government’s announced commitment to discover truth, give victims justice, end impunity and reestablish impartial judicial institutions argues for it to accept substantial international participation at all stages of the truth, reconciliation and accountability processes. Reforms will also be needed to enable Sri Lanka’s legal framework to deal with the kinds of international crimes the report details. Doing so will require carrying through on the government’s promise to criminalise enforced disappearances, as well as establishing command responsibility as a form of criminal liability and incorporating war crimes and crimes against humanity into domestic law.

This agenda needs leadership from President Sirisena, Prime Minister Wickremesinghe and other top government officials, with the support of politicians and civil society leaders from all communities: Sinhalese, Tamil and Muslim. The case must be made that involvement of foreign judges and investigators is not an infringement on sovereignty, but crucial for helping all communities escape the scourge of impunity. Framed properly, this argument should resonate with the demands to restore rule of law, end politicisation of the police and judiciary and hold powerful politicians accountable for abuses of power that were central to President Sirisena’s election in January and the victory of the broad coalition that won August’s parliamentary elections.

Pursuing cases against former LTTE leaders who worked closely with the Rajapaksa government, such as K. Pathmanathan (“KP”) and V. Muralitharan (“Karuna”), and any other senior LTTE leaders who may be overseas, will be important to address Sinhalese perceptions that accountability is biased against the military. The announcement by the Tamil National Alliance (TNA) that it will use the OHCHR report to initiate “introspection into our own community’s failures and the unspeakable crimes committed in our name” is a powerful gesture that other political parties and Tamil and Sinhala diaspora groups should reciprocate.

To make the most of the opportunity to begin genuine reconciliation and accountability and prove wrong those who dismissed earlier resolutions as mainly designed to support regime change, Human Rights Council members should seek consensus on a new resolution that:

  • endorses a Sri Lankan government commitment to make the legal reforms needed to effectively prosecute international crimes, including by incorporating war crimes, crimes against humanity and command responsibility into domestic law;
     
  • endorses reforms and confidence-building measures promised in the Sri Lankan foreign minister’s 14 September speech, as well as a commitment to immediately cease all harassment of victims and activists by security forces;
     
  • mandates significant international participation in all stages of the domestic accountability processes as recommended by the OHCHR report: investigation, prosecution, trials and appeals, protection of witness and victims and preservation of evidence;
     
  • establishes a well-resourced and staffed OHCHR office in Colombo to support, in coordination with the UN Special Rapporteur on Truth and Justice, the government’s promised public consultation process and to advise on the implementation of the government’s package of transitional justice mechanisms; and
     
  • mandates formal Council review of the implementation and effectiveness of all domestic truth, reconciliation and accountability mechanisms in September 2016 and 2017, in addition to reporting by the High Commissioner in March 2016 on the government’s initial actions.
     
  • The OHCHR report, the adoption of its major recommendations by the Council and, most importantly, their acceptance by the government and strong follow-through by the president and prime minister can be a path-breaking moment in Sri Lanka’s democratic recovery and its emergence as a more stable and inclusive state.

Brussels