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Statement on the Report of Sri Lanka's Lessons Learnt and Reconciliation Commission
Statement on the Report of Sri Lanka's Lessons Learnt and Reconciliation Commission
Sri Lanka: Landslide win for the Rajapaksa puts democracy and pluralism at risk
Sri Lanka: Landslide win for the Rajapaksa puts democracy and pluralism at risk
Statement / Asia

Statement on the Report of Sri Lanka's Lessons Learnt and Reconciliation Commission

The International Crisis Group welcomes the public release of the report of Sri Lanka’s “Lessons Learnt and Reconciliation Commission” (LLRC), presented to the Sri Lankan parliament on 16 December 2011. The report acknowledges important events and grievances that have contributed to decades of political violence and civil war in Sri Lanka and makes sensible recommendations on governance, land issues and the need for a political solution. But it fails in a crucial task – providing the thorough and independent investigation of alleged violations of international humanitarian and human rights law that the UN and other partners of Sri Lanka have been asking for. It is now incumbent on the international community, through the UN Human Rights Council, to establish an independent international investigation in 2012. Without such an investigation, accountability for the crimes committed at the end of the civil war is highly unlikely; without accountability, and a full understanding of the nature of the violations which took place on all sides, the seeds of future conflict will grow.

Appointed by President Rajapaksa in May 2010, the LLRC has been the government’s primary means of deflecting pressure for an international investigation into credible allegations of grave violations of international humanitarian and human rights law by both government forces and fighters of the Liberation Tigers of Tamil Eelam (LTTE) in the final stages of the long civil war. The government has pledged that the commission’s report would fully address the international community’s demands for accountability, as President Rajapaksa promised UN Secretary-General Ban Ki-moon after the government’s declaration of victory over the LTTE in May 2009.

Despite the Sri Lankan government’s two and half years of propaganda that their brutal campaign against the LLTE was conducted with little or no damage to civilians, the evidence of shelling of civilians and mass deaths was too much for the commission to ignore. Breaking with years of government claims to the contrary, the LLRC has accepted that “considerable civilian casualties had in fact occurred during the final phase of the conflict” and “that shells had in fact fallen on hospitals causing damage and resulting in casualties”. It also recognised the “possible implication of the Security Forces for the resulting death or injury to civilians” but in only three incidents “brought to the attention of the Commission”. It calls on the government “to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers”.

Yet the report works to exonerate the government and undermine its own limited calls for further inquiry – mostly by accepting at face value the largely unexamined claims of the senior government and military officials who planned and executed the war, and by rolling back well-established principles of international law. It “concludes”, for example, “that the military strategy that was adopted to secure the LTTE-held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority”;  “that the Security Forces had not deliberately targeted the civilians in the [no-fire zones] NFZs”; and that their actions did not violate the principle of proportionality because they “were confronted with an unprecedented situation when no other choice was possible and all ‘feasible precautions’ that were practicable in the circumstances had been taken”. At the same time, it claims that it is unable to determine which side was responsible for many of the reported incidents and chooses, with little explanation, to blame most deaths on the LTTE and unexplained “cross-fire”.

The LLRC’s conclusions are untenable for several reasons. First, it is obvious throughout the report that it considered only the materials the government chose to place before it. There was no independent assessment of the full scope of information in the government’s possession – including all communications with the UN, ICRC and sources in the conflict zone, as well as other evidence from government and international sources, such as uncensored satellite images and footage from the military’s unmanned drones. Similarly, the record before the LLRC is inadequate to draw conclusions ruling out unlawful attacks when there are thousands of witnesses who did not come forward, partly because of the lack of witness protection, and when there is no indication that the LLRC had physical access to the final war zone where most of the civilian casualties occurred. Those areas have been off limits to everyone but the military since the end of hostilities.

An equally worrying deficiency in the LLRC’s conclusions is the fundamental misstatement or misapplication of principles of international law. This is most evident in its failure to present a fair exposition of the principle of distinction under international humanitarian law. Indeed, even though the LLRC claimed to have considered the April 2011 report of the UN Secretary-General’s panel of experts, it did not engage the panel’s legal or factual analysis in any meaningful way. Allowing the LLRC’s regressive statement of international law to stand could have consequences beyond Sri Lanka.

The LLRC’s exculpation of government and military leaders also depends on accepting without question testimony from Tamil government administrators and doctors who had served in the war zone. The report makes no mention of the fact that the doctors were detained under anti-terrorism laws at the end of the war and forced to recant publicly their earlier claims that thousands of civilians died from government shelling. To accept at face value their statements to a government-appointed body requires ignoring the evidence of physical attacks and threats to government critics that the LLRC discusses at length elsewhere in its report. Indeed, as predicted by many in advance of the LLRC’s hearings, numerous witnesses who testified to the commission about government violations have since been questioned and harassed by the military and the police.

In the most compelling sections of its report, the LLRC recognises what Crisis Group, human rights organisations and civil society activists have argued for years: that Sri Lanka is suffering from a crisis of institutionalised impunity for human rights violations by state forces and those working in collaboration with the state. Unfortunately, the commission makes no effort to apply these facts to its analysis of alleged violations of international humanitarian law or to analyse how they would likely distort much of the testimony it received.

The LLRC’s own accounts of large-scale civilian deaths, repeated shelling by the government of “no-fire zones” packed with civilians, attacks on medical centres, and disappearances and possible executions of captured combatants and civilians – actions long denied by the Sri Lankan government – demand an impartial and thorough investigation. The LLRC’s request that the government conduct a series of further, limited inquiries into some of these issues is far from an adequate response. The Sri Lankan government’s past three years of denial, dissimulation and intimidation of critics has proven it is neither willing nor able to carry out impartial and effective investigations.

The responsibility now falls on the international community to take up the task of ensuring post-war accountability, beginning with a formal discussion of the LLRC report and the UN Secretary-General’s panel report at the March 2012 session of the UN Human Rights Council, leading to an independent international mechanism to investigate all credible allegations and to monitor domestic efforts at accountability.

The Human Rights Council should also take note of the LLRC’s recommendations that the government investigate and hold to account those responsible for abductions, disappearances and attacks on journalists – including those committed by armed pro-government Tamil parties. These issues should be addressed on an urgent basis by the Sri Lankan government and its implementation of the commission’s recommendations should be monitored on an ongoing basis by the HRC. As the LLRC itself points out, such recommendations have been made many times by previous domestic commissions of inquiry and almost always ignored, as has been the case with most of the LLRC’s own interim recommendations. There is little chance that the LLRC’s final recommendations will fare any better, unless there is sustained international attention and pressure from the UN Secretary-General, the Human Rights Council, and influential governments, most importantly China, India, Japan, the United States, Canada, Britain, France and the European Union. Sri Lanka’s friends in the non-aligned movement, especially South Africa, Brazil, Indonesia and Mexico, have a particularly important role in reminding Sri Lanka of the importance of accountability and demilitarisation to lasting peace and reconciliation.

In other respects, too, there is much of value in the LLRC report that the international community should pay attention to and can learn from. This includes the commission’s criticisms of the overly centralised and militarised way in which the government is ruling the Tamil-majority northern province and the top-down, non-participatory approach to reconstruction and development of the former war zones. Also worth noting are the commission’s suggestions for better managing the sensitive issue of land and its support for the prompt and effective devolution of power to the north and east. Many of these issues have been covered in Crisis Group reports, including its most recent “Sri Lanka: Women’s Insecurity in the North and East”, released on 20 December 2011.

Without accepting the flaws of the LLRC’s approach to allegations of war crimes and of its analysis of the government’s conduct of the war, Sri Lanka’s international partners should nonetheless attempt to support the openings that the LLRC makes possible in public discussions about human rights and reconciliation within Sri Lanka. The inadequacies in the LLRC’s treatment of violations of international humanitarian and human rights law as well as its more useful and critical arguments about the need for serious reforms in how Sri Lanka is governed – all deserve additional analysis. Crisis Group will be pursuing this in a series of further commentaries in the coming weeks. 

Brussels

Op-Ed / Asia

Sri Lanka: Landslide win for the Rajapaksa puts democracy and pluralism at risk

Originally published in LSE South Asia Centre

Twice postponed because of COVID-19, Sri Lanka's parliamentary election finally took place on 5 August. The SLPP's electoral victory should be understood not simply as a result of dissatisfaction with rival party UNP, but of the failure of its internationally-backed liberal reform agenda to gain lasting traction with Sri Lankan voters.

Wednesday, 5 August saw the landslide general election victory of the Sri Lanka Podujana Peramuna (SLPP), led by President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa. The vote sets Sri Lanka on a path likely to bring fundamental political and social change. With 59 percent of the vote, the SLPP won enough seats – together with allied parties – to achieve the two-thirds parliamentary majority they requested from voters in order to change the constitution. With executive power shared between the Rajapaksa brothers, the family and their party have the power to reshape Sri Lanka’s political institutions in fundamental – and potentially dangerous – ways.

The Sinhala nationalist ideology the Rajapaksas and the SLPP promote has long structured Sri Lankan politics, marginalising Tamils (about 15 percent of the population) and, in different ways, Muslims (who make up ten percent). The explicitly pro-Sinhala and anti-minority rhetoric of the SLPP’s campaign, the Rajapaksas’ demonstrated commitment to centralised and authoritarian rule – Mahinda’s presidency from 2005-2015 saw widespread human rights violations and numerous well-documented atrocities –  and the comprehensive defeat of the political voices supporting a more liberal, pluralist and tolerant vision of Sri Lanka – together these threaten to entrench a more dangerously intolerant form of majoritarianism than Sri Lanka has seen before.

Following Gotabaya’s decisive victory in the November 2019 presidential election, and in light of the continued popularity of his elder brother Mahinda, few political observers doubted the SLPP would win a big victory. Given the mostly proportional nature of Sri Lanka’s electoral system, however, few expected it would win a two-thirds majority, something no party had achieved before in a single election. That it was able to cross this threshold is due in part to the long and bitter infighting that hobbled its main rival, the United National Party (UNP), which eventually split it in two just before the election campaign began. The historic decimation of the UNP – it gained just one seat from two percent of the vote, while its splinter formation, the Samagi Jana Balawegaya (SJB), won 24 percent and 54 seats – was a public rebuke for the party’s disastrous incompetence when in power from 2015-2019.

Crippled by the dysfunctional cohabitation between President Maithripala Sirisena, leader of the Sri Lanka Freedom Party (SLFP) and his prime minister, UNP leader Ranil Wickemesinghe, the government ignored intelligence warnings and failed to prevent the ISIS-inspired Easter bombings that killed 279 people and injured hundreds more. The SLPP ran on Gotabaya’s trademark promises of security and competent technocratic rule, the strong performance of his minority government in limiting the spread of COVID-19, and its aggressively Sinhala and Buddhist agenda. All this resonated widely with Sinhalese voters who had seen little improvement in their economic situation under the UNP and had received a steady diet of nationalist, often anti-Muslim, rhetoric from the overwhelmingly pro-SLPP and pro-Rajapaksa state and private media. The SLPP also capitalised on its strong local party structures and its sophisticated and unrivalled use of social media.

But the SLPP’s victory goes deeper than current and recent party dynamics. It expresses the exhaustion – and the Sinhalese public’s rejection – of the liberal, largely western-oriented elite that dominated the UNP and, until at least 2005, had strong influence within the SLPP’s predecessor, the Sri Lanka Freedom Party (SLFP). Promises of inter-ethnic reconciliation, constitutional reform for greater devolution of power to Tamil-majority regions, strengthened rule of law and human rights protections and accountability for past abuses – this was a political reform agenda encouraged by western governments and taken up, if rather timidly, by the last UNP administration, after being endorsed on paper by other governments before it. That agenda is now dead. Badly packaged to the public, linked to no clear or tangible benefits to average Sinhalese during the UNP’s 2015-19 government, and undercut by the economic liberalisation policies that accompanied it, the liberal reform agenda was no match for the relentless nationalist rhetoric and framing of issues by the Rajapaksas and their media allies since the formation of the SLPP in 2016. The UNP’s back-to-back defeats in 2019 and 2020 express the decisive victory of nationalist narratives and policies that have been promoted for decades.

Sri Lanka’s democracy has always been incomplete and deeply flawed. Tamils have been excluded from effective power-sharing and their collective identity undermined. Muslims’ economic and cultural security is at growing risk. But even as an ethnocracy, rather than a full democracy, important elements in Sri Lanka have resisted the full flowering of a Sinhala Buddhist hegemonic project. The island’s embattled pluralist traditions, and the occasional attempts to give institutional form to Sri Lanka’s multicultural and multi-religious demographic reality, however, are now so severely weakened as to be politically irrelevant. Under Gotabaya Rajapaksa’s presidency the state has abandoned any pretence of Sri Lanka as a multi-cultural nation. Even as the country suffered repeated periods of insurgency, brutal counter-insurgency and mass atrocity – culminating in the tens of thousands of Tamil civilians killed in the final stages of the war with the Tamil Tigers in 2009 – Sri Lanka retained genuine democratic energies and traditions of questioning and contesting the ruling powers. These traditions – and those who wish to maintain them – are now under intense pressure.

What this is likely to mean in practice is a deepening of developments already begun during Gotabaya’s first nine months in office. The president’s preference for centralised rule with little oversight is clear: he has ruled without parliament for the previous five months – despite the constitution’s explicit limit of three months – relying instead on a series of ad hoc presidential task forces to set and implement policy. The SLPP’s central campaign pledge was to abolish or drastically rework – they never proposed specific changes – the nineteenth amendment. Approved by parliament in 2015 with only one vote against, the amendment limited the president’s previously near-absolute powers. It expanded the powers of the prime minister and strengthened a series of independent oversight commissions – e.g., on police, human rights, judiciary and right to information – and the constitutional council that appoints them. All this is certain to change. Gotabaya and Mahinda might, quite naturally, disagree over how to distribute their respective powers as president and prime minister, and intra-family tensions could shape policy, but it is clear that the executive as a whole will be made significantly stronger and the power of the Rajapaksa family consolidated for the long term.

The military and the Buddhist clergy will also continue to enjoy the expanded prestige and power they have received so far under Gotabaya. The ministry of defence has taken over numerous non-military agencies, and serving and retired military personnel have been appointed to at least twenty senior civil administrative positions, including the presidential task force on controlling the COVID-19 outbreak, chaired by the serving army commander. A separate presidential task force “to build … a disciplined, virtuous and lawful society” is staffed entirely by military and police officers and has sweeping powers to oversee and direct government agencies outside of established procedures. A number of the retired and serving generals are implicated by the UN and others in gross human rights violations during the final months of the civil war. A third task force on preserving archaeological heritage in the multi-ethnic and majority Tamil-speaking eastern province features senior defence and police officials and prominent nationalist Buddhist monks, but no Tamils or Muslims.

Tamils and Muslims in the north and east feel their land rights are increasingly vulnerable to seizures by a range of government initiatives, often through the construction of military camps and Buddhist temples, or through environmental and archaeological regulations. The government is also expected to propose new legislation to regulate Muslim religious education and marriage laws – done in the name of curbing “extremism” – as part of a wider set of policies widely seen by Muslims and rights activists as designed to weaken the community and assert the primacy of Sinhalese and Buddhists. Soon after coming to power, Gotabaya established a Buddhist Advisory Council, which he meets once a month, and his inauguration ceremony in November and Mahinda’s swearing-in as prime minister on 9 August were both held at important and politically-powerful Buddhist temples.

The first nine months of Gotabaya’s presidency has seen a concerted attack on the rule of law and the independence of the police and judiciary. Police investigations into corruption, murder and abduction cases implicating officials serving when Mahinda was president, including Gotabaya and senior military officials, have been stopped, with the key investigators either transferred or in some cases themselves charged with crimes on flimsy grounds. There are increasing reports of lawyers involved in human rights cases facing intimidation by police or military, and there are growing fears of a return to the active repression of dissent experienced during Mahinda Rajapaksa’s presidency, when scores of media personnel, humanitarian workers and political activists, particularly but not only Tamils, were killed, assaulted or forced into exile. With the government now possessing new technologies that provide radically expanded powers of surveillance, and enjoying unprecedented influence in both traditional and social media, democratic space is at real risk.

In this environment, the opposition – divided on ideological and ethno-religious lines – has its work cut out for it. Following the collapse of the UNP, the SJB will face a major test in becoming an effective opposition. Led by long-time UNP leader-in-waiting Sajith Premadasa, the party will need to find a way of distinguishing itself from the failed liberalism of the UNP while effectively challenging the hyper-nationalism of the SLPP. The election also weakened the position of the leftist Janath Vimukthi Peramuna (JVP), which once again failed to emerge as a strong third force, despite the hopes and growing support of progressive intellectuals and activists. Thanks in part to savvy government moves, the Tamil vote was increasingly splintered, with smaller parties eating considerably into the support of the largest grouping, the Tamil National Alliance. Muslim parties, and community as a whole, remain divided and have yet to devise an effective response to the years of anti-Muslim violence and hate-speech and the rising levels of distrust that followed the Easter bombings, which Gotabaya and the SLPP have skilfully exploited.

Despite the Rajapaksas’ overwhelming victory and essentially unbridled power, the next months and years will bring major challenges.  Most urgent is a looming economic crisis. Prior to the arrival of COVID-19, the government was facing major difficulties paying back its large foreign debt, with some $3-4 billion in loan payments due over the next year. Chronic fiscal deficits, which make it hard to maintain Sri Lanka’s beleaguered welfare state, has already grown under Gotabaya’s watch and are expected to grow further. The COVID-19 crisis, while surprisingly well-controlled domestically, has crippled the nation’s main sources of desperately needed hard currency: tourism, remittances from overseas workers, and exports. To date, the government has presented no concrete proposals for bridging its financial gaps, other than appealing to creditors for debt relief and deepening its ties with China, which offered a $500 million emergency loan in March. While the economic pain has yet to reach breaking point, popular expectations of government relief are high. Should they be disappointed, political unrest is not out of the question. Many Muslims fear they could be made scapegoats, and a convenient target for displacing popular anger.

It remains uncertain whether China has the resources or the will to bail out Sri Lanka single-handedly. The new government is certain to repeat its previously successful strategy of using fears about China’s growing political – and possible military – role in Sri Lanka to encourage increased financial support from India, Japan and Western governments. With hostility to China rising sharply among all these actors, Sri Lanka’s ability to play the two blocs off against each other may not be endless, however. Should economic and military competition with China continue to grow, it remains possible the anti-Chinese bloc could choose to collaborate more closely and challenge Sri Lanka’s move further into the Chinese orbit by using their collective political and economic leverage in more punitive ways. Given the increased use of human rights-related targeted sanctions against Chinese officials, this could be accompanied by renewed challenges on the unfinished human rights and accountability agenda left-over from the brutal end to the civil war. This could either be through the UN Human Rights Council, which once again considers Sri Lanka in March 2021, or through attempts to assert universal jurisdiction or impose targeted sanctions against some of the key military and political leaders – including Gotabaya – against whom there are credible allegations of serious violations of international criminal law.

For the moment, however, all of Sri Lanka’s key international partners appear willing to work with the newly-elected government. Western governments and the UN in particular hope it can be cajoled into moderating its more authoritarian and hardline nationalist policies, while successfully managing the economic crisis that appears to be just on the horizon. Sri Lanka’s international partners will ultimately need to develop more effective ways to support its pluralist traditions and protect its democratic space than has been the case to date. In the meantime, one has to hope that Sri Lanka’s embattled rights activists, independent journalists and other democratic and pluralist voices are able to develop the new strategies that will be required to resist the country’s complete collapse into nationalist authoritarianism.