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A member of the Revolutionary Armed Forces of Colombia (FARC) sits in his tent in the “Alfonso Artiaga” Front 29 FARC encampment in a rural area of Policarpa, Narino, in southwestern Colombia on 16 January 2017. AFP/Luis Robayo
Report 60 / Latin America & Caribbean

In the Shadow of “No”: Peace after Colombia’s Plebiscite

Revised and ratified after its shock rejection in October 2016’s referendum, Colombia’s peace agreement still lacks sustainable political support. Reversing public distrust will need swift and effective implementation of the accord – including full apologies for past crimes and the visible handover of weapons by insurgents.

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Executive Summary

Defeat by a wafer-thin margin in the October 2016 plebiscite on the peace agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) insurgency shocked Colombia’s society and political establishment, as well as the accord’s international backers. With the signed document suspended while rebel combatants tentatively gathered in sites across the country, prospects for an end to 52 years of armed conflict initially darkened. A revised accord, with numerous changes demanded by opposition leaders, was unveiled less than two months later, but the illusion of consensus was short-lived. Indignant that it was not able to review the new text and incensed that though many of its proposals were included, a few key ones were not, the opposition decried the agreement and its ratification in Congress. Peace with the guerrillas is again set to polarise parties and candidates in elections in 2018. A swift, effective start to implementation of the accord is needed to reverse public wariness and political resistance.

Victory in those elections for opponents of the peace agreement would be the harbinger of major challenges to the deal’s sustainability. Concentration of FARC combatants is underway, albeit problematically and with delays, and the six-month timetable for the handover of weapons has been set in motion. However, funding gaps, administrative delays and the political balance of power ahead of 2018 threaten to curtail transitional arrangements and structural reforms aimed at remedying the root grievances of the conflict. The opposition could financially starve institutions, programs or policies in the peace agreement if it comes to power. The terms of transitional justice, measures on rural reform and land access, and community-based approaches to removing coca crops and establishing alternative income-generating activities could all be in danger.

Defending the agreement will be an intrinsic part of the political battle ahead. Persuading a distrustful, urbanised public to give its backing depends in the immediate term on what happens in and around FARC cantonments. Over the next year, successful implementation will be the best way to bolster popular and political support and make it politically costly for opponents to reverse the peace process. Transparency in handover of weapons, full apologies for past crimes, continued progress on humanitarian actions such as de-mining, increased results in the search for victims of forced disappearance and eventual cooperation with the Special Jurisdiction for Peace would underline the insurgents’ commitment to peace and the dangers of reneging on the agreement.

Violence on the ground will also affect support for the agreement in the short term. FARC leaders and troops fear betrayal by the state, and some may seek to hedge their bets in face of the visible opposition from significant political forces. Promised peace talks with the country’s second insurgency, the National Liberation Army (ELN), have not begun, and various armed groups appear to be behind dozens of killings of social leaders that constitute a new wave of terror in remote rural communities. Only resolute commitment by the state to prevent battles for control of illicit economies and protect civilians and ex-combatants will give peace real local-level meaning.

The international community should continue its political support, using its delegates and special envoys to maintain dialogue with all sides and exerting discrete pressure when necessary on opposition leaders to preserve crucial parts of the agreement that could be in jeopardy. It should refrain from making calls for renewed aerial fumigation of coca crops and instead give the agreement on illicit drug substitution a real chance to have effect. It must also use its financial assistance to establish mechanisms for moving resources quickly on behalf of effective implementation on the ground, helping resolve and learn from problems as they arise.

Rebuilding Colombia's Trust in the Peace Process

In this video, our Senior Analyst for Colombia, Kyle Johnson, highlights the main findings of Crisis Group’s report “In the Shadow of “No”: Peace after Colombia’s Plebiscite”. Crisis Group

Recommendations

To build political support for sustainable implementation of the new peace agreement

To the government of Colombia:

  1. Strengthen dissemination of the peace agreement in both rural and urban areas, while increasing protection rapidly for social leaders under threat until the agreement on security guarantees can be implemented.
     
  2. Establish and fund new institutions and commissions tasked with key roles to implement the peace agreement quickly, while strengthening nascent and galvanising existing bodies to generate early peace dividends for victims and conflict-zone communities.

To the government of Colombia and the FARC:

  1. Continue with the established weapons handover schedule despite delays in FARC arrival at cantonment sites, while adopting a proactive communication strategy, including documenting evidence of the FARC laying down weapons and engaging in reinsertion and of progress on other aspects of implementation.
     
  2. Keep victims at the centre of the process as implementation begins, increasing cooperation in the search for victims of forced disappearance, releasing all children age fifteen and under in FARC ranks and continuing public apologies for notorious crimes committed in the war.
     
  3. Explore space for dialogue with the opposition on implementation.
     
  4. Prioritise improving security for local leaders in the short term with preventive measures, training and strengthened security schemes, while also setting up institutions for protection of FARC members.
     
  5. Include local and regional authorities more directly during the arms abandonment process and planning of other implementation aspects.

To the opposition:

  1. Reinitiate dialogue with the government on implementation and increase the frequency, strength and level of its denunciations of violence against social leaders.

To the international community:

  1. Continue peace process support by maintaining delegates and special envoys during implementation, supporting citizen security and sustaining funding for international actors with important post-conflict roles, such as the UN High Commissioners for Human Rights and Refugees among other key players.
     
  2. Press the government and FARC to keep their commitments on time and to involve local actors more extensively.
     
  3. Continue dialogue with the opposition so as to press for support especially of at-risk parts of the peace agreement, such as rural development, political participation, transitional justice and humanitarian measures.
     
  4. Make more frequent public statements showing concern for the killing of social leaders and demanding progress in protection and justice.
     
  5. Support new agreements for major alternative development investments to tackle illicit drug production before pressing for more direct eradication.

To the UN mission:

  1. Finish deployment as quickly as possible, including of the civilian component, to prepare for and receive FARC fighters as they gather in cantonments for weapons handover.
     
  2. Adopt a proactive communications strategy, publishing frequent updates on FARC concentration and weapons handover, using media beyond regular official reports.
     
  3. Press the government and FARC to follow the schedule for weapons handover in the peace agreement, despite early and likely future delays.

Bogotá/Brussels, 31 January 2017

I. Introduction

When Colombians voted in October 2016 on the peace agreement between the government and the Revolutionary Armed Forces of Colombia (FARC), the “no” vote edged the “yes” by less than half of one per cent, with a 37 per cent turnout.[fn]For previous Crisis Group work on the peace process, see Latin America Reports N°s 58, Colombia’s Final Steps to the End of War, 7 September 2016; 53, The Day after Tomorrow: Colombia’s FARC and the End of the Conflict, 11 December 2014; 51, Left in the Cold? The ELN and Colombia’s Peace Talks, 26 February 2014; 49, Transitional Justice and Colombia’s Peace Talks, 29 August 2013; 45, Colombia: Peace at Last?, 25 September 2012; and Briefing N°32, On Thinner Ice: The Final Phase of Colombia’s Peace Talks, 3 July 2015.Hide Footnote  An intense process of high-level political dialogue ensued, leading to a new agreement that the government, FARC and many in civil society defend. Voicing dismay at the government, which it accuses of undermining democracy, the opposition has also united, but with the aim of rejecting the new agreement.

Congress has ratified the accord, and the start of the calendar for the insurgency’s weapons handover was set for 1 December, initiating the countdown for the 15,000 FARC combatants and militia members to gather in 26 cantonments across the country. The opposition, despite the Constitutional Court having allowed the congressional ratification procedure, has argued that by relying on the previously established pro-government majorities in both houses of the legislature, President Juan Manuel Santos cheated the people. Attempts to persuade it to support the new agreement have failed.

The context in which peace is to be implemented is far from hospitable. The government will struggle, even with international aid, to fund all the activities envisaged. New institutions the accord requires – some already created – are skeletal, sorely understaffed and unable to undertake the programs they are designed for, such as the Agency for Territorial Renovation; other official bodies, including the attorney general’s office, have proposed policies contrary to those in the agreement.[fn]Crisis Group telephone interview, high-level diplomat, Bogotá, 28 November 2016; interview, government official, 9 December 2016.Hide Footnote Violence against local social leaders has increased, raising doubts about peace benefits and leading to further polarisation between supporters and opponents. The peace process with the National Liberation Army (ELN), Colombia’s second largest insurgency, is yet to begin.

Political support for the peace agreement is weak and will most likely flag as the presidential election campaign begins later this year that will bring a new leader to office in 2018. Full implementation is thus far from guaranteed. Even so, the government and FARC have a window of opportunity to build support via implementation over the next eighteen months that would raise the political cost of not continuing the process from mid-2018 onwards.

The research for this approach included extensive interviews with members of the opposition, FARC and government negotiating teams, members of the Tripartite Mechanism to monitor and verify the ceasefire, pro-peace agreement leaders and politicians, political and legal experts and members of the international community close to the peace talks.

II. Getting to a New Agreement

The journey from plebiscite to new peace agreement hinged on various decisive moments. The starting point was the document’s narrow defeat on 2 October, leading to a complex shift in the balance of political power. Neither government nor opposition could claim a clear mandate. Tensions worsened as renegotiation began on a new text, ending with the crafting of an accord that lacked the stable, sustainable political base that opposition support would have added to that of pro-peace political parties, many victims’ organisations and civil society.

A. What Explains the Plebiscite Result?

The surprise result stemmed from the diversity and levels of commitment of voter bases in the opposition and pro-accord movements. A combination of ex-President Álvaro Uribe’s devoted support, anti-“gender ideology” churchgoers and the most right-wing elements of the divided Conservative party made up the majority of those who rejected the agreement.[fn]“Gender ideology” is the phrase used by groups who claim the accord looks to convert children into homosexuals, attacks the traditional family and seeks to take away parents’ right to educate their children in traditional ways. They say the ideology is in those parts of the agreement that promote special treatment for lesbian, gay, bisexual, transgender and intersex (LGBTI) victims of the conflict. Crisis Group interview, pastor opposed to peace accord, Bogotá, 3 November 2016.Hide Footnote Though he remains extremely divisive, Uribe’s support is stable and high. His followers tend to be more active in promoting their views and encouraging others to vote than those who favour the accords. Uribe backers are in general also more inclined to vote than other groups. The plebiscite was ideal for mobilising his committed base, as it loathes the FARC, rejects its participation in politics and fears Colombia turning into chavista Venezuela. The “religious vote”, primarily concerned about an alleged “gender ideology” smuggled into the agreement, is assumed to have been higher than in previous elections and fundamental to the result. Finally, an unknown part of the “no” vote derived from disinformation targeted at voters according to their region and income level.[fn]‘La estrategia del Sí tuvo muchos desaciertos’: Francisco Gutiérrez”, Semana, 8 October 2016. Jennifer Cyr and Carlos Meléndez, “Colombia’s right-wing populist movement defeated the peace deal. Here’s how we know”, The Washington Post, 4 October 2016. The director of the “no” campaign said different messages were used for distinct population sectors to encourage anger-based voting. These included claims the FARC would receive impunity; images of Santos and FARC leader Timochenko together; that subsidies and pensions for the poor and elderly would be cut; and Colombia would turn into Venezuela. Juliana Ramírez, “El No ha sido la campaña más barata y más efectiva de la historia”, La República, 5 October 2016.Hide Footnote

The high-level battle also favoured the opposition. Ex-President César Gaviria, leading the “yes” campaign, was unable to counter opposition arguments effectively, and no strong, unifying figure similar to Uribe emerged. Vice President Germán Vargas Lleras, a candidate for the role given his power and direct experience of guerrilla violence, was almost completely silent and, if anything, gave indirect support to the opposition.[fn]Vargas Lleras said he supported the agreement, with misgivings on certain issues. The Uribe argument of supporting peace but with changes was conceptually similar, and Vargas Lleras’s lack of campaigning, plus some ideological similarities with Uribe, may have led part of his base to vote “no”. He is due to step down in March 2017 to begin campaigning for the presidency.Hide Footnote “Yes” campaign strategies were also questionable. President Santos’s and other establishment-based parties focused on regional and local politicians, depending mainly on political machines, powerful families and coalition-building, which proved less effective in a single-issue plebiscite than in regular elections and were not even fully activated. Civil society, while vocal, again showed its historical weakness at mobilising votes. Finally, some pro-accord voters may have been complacent due to polls pointing to a big victory.

Areas of higher poverty tended to vote for the accord, except in Bogotá where lower-income groups were strongly “no”. The periphery – defined by measures of typical rural attributes or state capacity – also tended to back the agreement. It has been argued that areas with higher victimisation levels in the armed conflict tended to vote “yes”, but that argument hinges on how victimisation is measured.[fn]Leopoldo Fergusson and Carlos Molina, “Un vistazo a los resultados del plebiscito”, La Silla Vacía, 4 October 2016. If victimisation is measured solely by displacement, there is a clear correlation with “yes” votes, but not when it is measured more generally.Hide Footnote

The opposition’s victory meant its proposals for a new agreement had to be taken into account if the process was to be saved. Early on, some opposition leaders argued that any new accord required their approval. But the close result also allowed the politically-weakened government to divide the opposition (or isolate Uribe) by absorbing some concerns, while maintaining the risky option of a new plebiscite, a tactic that deprived foes of an absolute veto. Moreover, at various stages, the opposition showed itself to be divided. It was not until a new agreement was reached and ratified in Congress, despite the omission of certain of its key concerns, that the opposition could unite in indignation.

B. Positions for a New Agreement

Shortly after the plebiscite, the political and social actors who actively opposed the original agreement handed in their proposed changes. The first document with the entirety of their proposals presented in Havana to the FARC contained more than 260 items from at least ten sources.[fn]Santos no recibe más propuestas sobre el acuerdo de paz”, El Espectador, 20 October 2016. “Propuestas de Gobierno”, Government of Colombia (GOC), 23 October 2016.Hide Footnote Part, especially those touching on rural reform, reflected political interests rather than the concerns of many “no” voters. Despite the diverse, in some cases contradictory universe of proposals, there was a handful the opposition considered indispensable.

The most politically important were unmistakeable. There was a consensus that punishments in the Special Jurisdiction for Peace (SPJ) – the system devised to mete out transitional justice for serious crimes committed during the conflict – must be harsher, especially (in some cases exclusively) for the FARC. The SPJ, the opposition argued, should become part of the normal judicial system. There was near agreement that the Armed Forces must receive preferential treatment, though what that entailed differed between factions. The opposition shifted from demanding permanent prohibition from political office for those convicted of crimes against humanity and war crimes to a ban until sentences were completed.

All opposition groups agreed that there should be no amnesty for drug trafficking, the FARC should hand over its assets to be used as reparations to victims, and FARC use of such resources for political activity should be explicitly prohibited. The opposition was also united in demanding the agreement not have constitutional rank.[fn]The constitutional rank, or bloc, is the series of norms not in the constitution but used as parameters for constitutional control of law, such as treaties. “Sentencia C-067/03”, Constitutional Court, 2003.Hide Footnote Private property, it insisted, must be explicitly respected. Finally, concerns were expressed over “gender ideology” and its alleged effects on what was argued to be traditionally defined family and society.[fn]Crisis Group interviews, opposition representative and negotiators, Bogotá, 19, 20 October, 8, 11 November; Christian pastor, Bogotá, 3 November; senior diplomat, 11 November, all 2016. “Propuestas de Gobierno”, op. cit.Hide Footnote

The government responded by identifying those it considered easy to resolve, those that were difficult but not impossible and those that were held to be completely unviable. The opposition then argued that ruling out anything meant Santos was opening the door to “cheating” “no” voters by discarding key proposals that were inconvenient. Nonetheless, Santos sent his negotiators to Cuba with orders to take tougher stances on certain points, leading to friction with the FARC on the political participation issue, for example.[fn]Santos dice que algunas propuestas para acuerdo de paz son inviables”, El Tiempo, 20 October 2016. “Santos quiere hacer conejo con el acuerdo: Alejandro Ordóñez”, El Espectador, 3 November 2016. Crisis Group interview, senior diplomat, Bogotá, 4 November 2016; opposition negotiator, Bogotá, 8 November 2016; FARC negotiator, Havana, 28 October 2016.Hide Footnote

Once renegotiations began in Cuba, attention turned to the FARC’s reaction. Soon after the plebiscite, the group announced it was committed to peace and, in a 7 October communiqué, to adjusting the agreement so that it could earn broad-based political backing.[fn]Comunicado conjunto: Acuerdo Final, plebiscito y cese al fuego”, GOC and FARC-EP, 7 October 2016.Hide Footnote But it also said it could not yield on eligibility for office, which it considered the essence of the negotiations: converting an armed insurgency into a peaceful political force. It also continued to reject prison sentences, insisting that any harsher punishment must be applied to all actors in the conflict, and opposed including the SPJ within the ordinary justice system. The FARC (and government) disagreed with the proposal to give landowners a permanent assumption of good faith in all land purchases, thus allowing them to avoid prosecution if the land had been stolen without their direct participation. Lastly, it pushed hard for the accord to have constitutional force, but eventually gave way.[fn]Crisis Group interview, FARC negotiator, Havana, 28 October 2016.Hide Footnote

C. Three Renegotiations

A new agreement depended on three negotiation processes. The first was between the opposition and government. In public, both spoke of productive talks; in reality, there was a mutual lack of confidence. The government believed the opposition wanted to drag talks on into the 2018 presidential election, while the opposition was unsure the government would genuinely represent its positions in Havana. After an early back-and-forth, the opposition handed in a document with all its original proposals, some of which were watered down to show flexibility.[fn]Crisis Group interview, opposition negotiator, Bogotá, 8 November 2016.Hide Footnote

The second track involved civil society supporters of the peace agreement and the government, as well as on occasion the FARC. Not so much a negotiation as a defensive move by the pro-agreement camp, organisations, movements and leaders met with Santos to urge him to find a new accord quickly and to retain the original principles. A series of marches across the country and creation of a Peace Camp in Bogotá’s central Bolívar Plaza kept pressure on all sides.[fn]Crisis Group interview, organiser of the Peace Camp in Bolívar Plaza, Bogotá, 12 October 2016.Hide Footnote Some movements travelled to Havana to urge the FARC to persevere in its search for peace.

The third and final negotiation was between the government and the FARC. The government negotiators returned to Havana on 21 October and began a first round of talks, each one lasting roughly twelve hours. After these, the team returned to Bogotá to update the opposition. On 29 October, a new round began with the FARC, eventually leading to the announcement of a revised accord on 12 November. The latter talks had their difficult moments, particularly over FARC’s future political participation.[fn]Crisis Group interviews, high-level diplomat, Bogotá, 4 November 2016; FARC negotiator, Havana, 28 October 2016.Hide Footnote

During the negotiations with the FARC, a stable line of communication was established to keep opposition leaders up to date. However, concern that the government was not properly representing opposition positions was never fully dissipated. The “no” leaders expected further discussion on the new agreement before it was signed, but this never happened. With a few key concerns not addressed and amid politically motivated allegations that the revisions were little more than cosmetic, the opposition finally united against the document.[fn]Crisis Group interviews, opposition negotiators, Bogotá, 8, 11 and 30 November 2016.Hide Footnote

Throughout the renegotiation, the government and FARC felt under great time pressure due to concern the bilateral ceasefire could fall apart, despite an early consensus between them and the opposition that it was necessary. A new, detailed protocol included the pre-grouping of FARC fighters. With the government paying for FARC sustenance after 30 days, maintenance of the cessation of hostilities was possible, but the ceasefire was designed to last only three months.[fn]Crisis Group interview, member, UN mission, Bogotá, 9 November 2016. “protocolo para el cese al fuego y de hostilidades bilateral y definitivo (CFHBD) entre el gobierno nacional y las FARC-EP”, GOC, FARC-EP and UN mission, 13 October 2016.Hide Footnote On 13 November, the army killed two FARC fighters carrying out extortion activities on pretext of being ELN in Santa Rosa del Sur, a southern Bolívar province municipality.[fn]“GOC and FARC-EP violated ceasefire in south Bolivar incident”, Tripartite Mechanism communiqué, 30 November 2016.Hide Footnote While this event highlighted the ceasefire’s fragility, it also showed the robustness of the Tripartite Mechanism.[fn]The Tripartite Mechanism, which includes the government, FARC and UN mission, is to monitor and verify the ceasefire and weapons handover process. The UN mission is charged with investigating possible violations, helping agree protocols when necessary, assuring the parties fulfil their roles and providing recommendations after violations, among other tasks.Hide Footnote Both parties immediately turned to it to investigate, and it found violations by both sides. Government and FARC language then softened, and no further violent actions took place between them.

D. The New Agreement

The new agreement announced on 12 November included numerous changes based on opposition proposals. Some 58 per cent of the opposition’s original public proposals were included completely or partially. Some 58 proposals posited complete changes in form and underlying justification, of which 21 were included completely and six partially.[fn]See “Radiografía del plebiscito y el posplebiscito”, and “Radiografía del nuevo acuerdo: ¿Qué tanto se renegoció?”, both Fundación Ideas para la Paz, n.d.Hide Footnote Contrary to opposition charges, the revisions were beyond cosmetic.

Most of the opposition’s proposals and wording on Comprehensive Rural Reform were included and/or addressed, such as the rural tax system and legal protection for those who bought land in good faith. The same can be said for proposals and wording on political participation, for example on the role of political parties in designing a new statute for the political opposition.[fn]Many of victims’ leader Herbin Hoyos’s original proposals on victims’ participation in politics did not make it into the agreement, as they were either already implicitly there or proposed automatic seats in Congress for victims and a party with the same rights as the FARC, among others. The statute for political opposition is a legal measure to outline the special “guarantees for political parties and movements that declare themselves to be in opposition”. “Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera”, GOC and FARC-EP, 24 November 2016, p. 37.Hide Footnote Some proposals on procedures for ending the conflict and on guarantees for ex-combatants’ security were accepted, though the conditions under which ex-combatants could hold office, including automatic allocation of congressional seats, were not altered. Several proposals on illegal drug cultivation were also incorporated, including a FARC legal commitment to hand over all relevant information about the drug trade, and the state’s right to aerially fumigate coca crops, despite suspension of this method in 2015.

Regarding victims and justice, the FARC is to hand over its whole war economy to provide victims reparations. The SPJ system is to be connected to the penal code and judicial system and not have foreign judges nor give NGO reports the same weight in evidence as information from the state authorities. SPJ courts may rule that FARC drug-trafficking can be interpreted as having been for personal gain, not merely to fund armed political activity. Perhaps most importantly in light of “no” campaign rhetoric, the new accord defines the restriction of liberty of convicted guerrilla combatants as obliging them to reside throughout their sentences within a village, under UN surveillance, while doing reparations-oriented work.[fn]Ibid.Hide Footnote

Numerous implementation proposals were added, including clauses on the accord’s financial stability; definition of “gender focus” as the “recognition of the equal rights between men and women, the special circumstances of each …”; and explicit respect for religious liberty.[fn]Ibid, p. 193.Hide Footnote Nor will the agreement have constitutional rank.[fn]Sources for this information include a comparison of the new accord, GOC and FARC-EP, op. cit., and the first document used in Havana to discuss opposition proposals, “Propuestas de Gobierno”, op. cit.; and “Sistematización opciones y propuestas voceros del no y lo acordado en el nuevo acuerdo”, Oficina del Alto Comisionado para la Paz, 22 November 2016. For just changes, see “Documento de trabajo: cambios, precisiones y ajustes”, Office of the High Commissioner for Peace, 12 November 2016. Pablo Abitbol, “Comparación anterior y nuevo Acuerdo Final Gobierno de Colombia – FARC-EP”, n.d.Hide Footnote The government and FARC argued they made changes to 56 of 57 topics discussed with the opposition; FARC political participation was the exception.[fn]“‘Logramos precisiones y cambios en 56 de los 57 temas abordados en nuevo acuerdo’: Santos”, El Espectador, 12 November 2016.Hide Footnote

III. Peace Toward 2018

All opposition leaders and the government negotiating team met the evening of 21 November in Bogotá.[fn]On the morning of 21 November, the presidential candidates of the Democratic Centre Party met with government negotiators to cordially discuss agreement on implementation. But poor communication from the opposition and differences of opinion on the government side, as well as procedural disagreements, set the tone for the evening meeting. Crisis Group interviews, opposition negotiator, Bogotá, 29 November 2016; political expert, Bogotá, 2 December 2016.Hide Footnote It started poorly, and ended worse. Perceptions differed on whether changes had been made to key parts of the accord; whether the new agreement was to be discussed with “no” leaders before signing; and over the way forward. They settled for complete disagreement: the opposition publicly rejected the accord, backtracking on some of its offers of greater flexibility. The polarisation created by the plebiscite, after being briefly camouflaged during the renegotiation process, resurfaced intact during the new ratification process.[fn]No es No”, La Silla Vacía, 22 November 2016; “Comunicado de representantes del No y de las víctimas”, 21 November 2016; Crisis Group interview, opposition negotiator, Bogotá, 30 November 2016.Hide Footnote

A. The Politics of Congressional Ratification

On 29 November, the Senate approved the peace agreement, 75-0; 25 from the opposition took part in debate but abstained, arguing Congress had no legal mandate to approve the accord. The same occurred in the House of Representatives the next day, where the vote was 130-0 (out of 166 taking part). The votes were controversial for reasons that will continue to impair support for the agreement.

Using Congress gave the government and FARC a clear route to ratification, while putting the opposition at a patent disadvantage. The pro-government coalition has a clear majority in both houses, especially on issues relating to the peace process. With Congressional elections not due until 2018, there is no immediate way for the “no” movement to translate its support base into legislative power.

This has led the opposition to argue that the government is undemocratically “imposing” the same peace deal, but the assertion that the congressional ratification is “undemocratic” depends on two claims. The first is that the new accord has only cosmetic changes, which fails to recognise the opposition’s success in getting key proposals into the text. The second contests the government view as to what can be defined legally as a “popular referendum”. The opposition argues that a special congressional vote is not a valid “popular referendum”; the pro-agreement side, including Santos, insists it is. Forced to adjudicate, the Constitutional Court ruled in December that Congress could itself decide on the ratification process.[fn]The Legislative Act for Peace’s fifth article required any peace agreement to go through a “popular referendum”, which at the time included the options of local committees, Congress or a new plebiscite. When the act was passed, the “popular referendum” language referred to the plebiscite. The Constitutional Court’s ruling on the Legislative Act avoided answering if Congress was a valid option, letting that body decide. The response in effect was “yes” as Congress activated the fast-track in December. “Comunicado No. 52”, Constitutional Court, 13 December 2016, p. 2.Hide Footnote The result of these differences is that the opposition has begun to use more extreme language, ratcheting up political polarisation by questioning not just the terms of peace but also the government’s respect for basic democratic tenets.[fn]See the speeches made by the Democratic Centre Party (DCP) Senators Iván Duque, Carlos Holmes Trujillo and Óscar Iván Zuluaga during the referendum debate in the Senate on 29 November 2016.Hide Footnote

The Constitutional Court also allowed Congress to activate the fast-track system laid out in the Legislative Act for Peace for approving the more than 50 laws needed to implement the peace agreement while avoiding the standard four or eight congressional readings of each bill. Considered essential – the FARC even said it would otherwise return to war – fast-track enabled Congress to approve key legislation, including the amnesty law passed at the end of December.[fn]“‘Sin ‘fast track’ volveríamos al monte’”, Semana Video, n.d.Hide Footnote

Avoiding a second plebiscite and securing fast-track procedures for peace agreement legislation have been essential to rapid recovery of the peace process. However, the way in which the government has acted makes rejection of the peace accord and its implementation – partially or wholly – a profitable political platform for 2018, as the opposition will continue to argue there has been no new peace agreement, and that the 2 October plebiscite was thwarted. Implementation in the medium- and long-term thus is at serious risk.

B. To 2018 and Beyond

As in the 2014 elections, peace will be at the heart of the national vote in 2018. The peace agreement will be central in the opposition’s congressional and presidential platforms.[fn]Crisis Group interviews, opposition negotiators, Bogotá, 11 and 30 November 2016.Hide Footnote With Uribe and other leading opposition figures set against the peace agreement and portraying themselves as the saviours of democracy, and with Vice President Vargas Lleras another contender, the likelihood of an anti-agreement candidate winning the presidency is high.[fn]Colombian presidential politics is a mix of traditional patronage networks and political identities, powerful families and opinion-based voting. Uribe will be able to mobilise perhaps around four million supporters for his preferred candidate. Vargas Lleras has the highest favourability of any politician (61 per cent), followed by Uribe (57 per cent), though recent scandals in his Radical Change party, may weaken him. Nonetheless, his patronage networks are unmatched. Marta Lucía Ramírez, Conservative party, had a good first round in 2014, and has a favourable rating of 41 per cent, but her party is regionally weak. On the pro-agreement side, the likely Liberal party candidate, Humberto de la Calle, has a 54 per cent rating. His party, though, can no longer count on votes from its 2014 alliance with Cambio Radical and is still weakened by old divisions. The Greens and Democratic Pole are relatively weak. “Gallup Colombia Poll #116”, December 2016. “Elecciones Presidenciales: Resultados”, Registraduría Nacional del Estado Civil, s.f.Hide Footnote Full implementation of the accord would then be in jeopardy.

Coalition-building will be crucial for the next president and Congress.[fn]Alliances are a constant in presidential elections, as parties make agreements after the first round to support one of two remaining candidates. In 2018, many coalitions will likely already exist due to shared positions on the peace agreement. After the plebiscite, the power of various actors within those coalitions is hard to judge and not static.Hide Footnote The numerous possible presidential candidates within the “no” movement, including Marta Lucía Ramírez, Óscar Iván Zuluaga, Iván Duque, Carlos Holmes Trujillo, and Alejandro Ordóñez, as well as Vargas Lleras, will make competition within and between parties fiercer than normal. In general, the Democratic Centre Party (DCP) starts with an edge, as its vote threshold is high, and Uribe, though barred from a new term, enjoys a certain cult of personality.[fn]“‘La estrategia del Sí tuvo muchos desaciertos’: Francisco Gutiérrez”, Semana, 8 October 2016; Crisis Group interview, political expert, 10 November 2016.Hide Footnote It is difficult to imagine a realistic scenario in which the DCP candidate does not make it to the second round of voting. As other opposition contenders look to increase their vote share, they have tended to portray themselves more radically as saviours of democracy and security.[fn]Alejandro Ordóñez has charged that because of how the peace accord was handled, Santos is consolidating a “dictatorship”. “En Colombia estamos ‘desde hace rato en una dictadura’: Alejandro Ordóñez”, Oiga Noticias, 26 October 2016. Marta Lucía Ramírez has called for a Constitutional Assembly to “redefine the functioning of established state organs, such as the presidency, Congress and the Courts”. “Colombia se está adentrando en una crisis de legitimidad institucional”, Ramírez, 22 December 2016.Hide Footnote

Vargas Lleras will be something of a wildcard. Though he keeps a low profile on the peace issue, the influence of his Radical Change party and the extent of his political patronage networks mean he commands many votes. He regards as his main opponent Humberto de la Calle, the most likely Liberal Party candidate, who, as the government’s chief negotiator with the FARC, is a staunch defender of the peace agreement. However, Vargas Lleras and Uribe have a poor relationship, despite certain gestures from the latter that could be interpreted as an invitation to an alliance.[fn]Tatiana Duque, “La estrategia disidente de Vargas”, La Silla Vacía, 28 November 2016; Crisis Group interview, high-level diplomat, Bogotá, 4 November 2016.Hide Footnote A possible outcome is a second round in the presidential election pitting the DCP against Vargas Lleras, with neither candidate strongly for implementing the whole peace agreement.[fn]Crisis Group interview, pro-accord senator, Bogotá, 30 November 2016. Vargas Lleras never had a strong position on the accord; recent information suggests he may oppose. Tatiana Duque, “Así se prepara Vargas Lleras para cuando le llegue su hora”, La Silla Vacía, 15 January 2017.Hide Footnote If he does not reach the second round, Vargas Lleras’s support would likely be decisive for the winner. He currently appears inclined more toward the DCP than pro-peace agreement parties.

Evangelical Christian churches will also be another major player in the run-up to the election. They are believed to have provided between one and two million votes to the “no” camp, and various religious leaders expect to play a central part in 2018.[fn]Natalio Cosoy, “El rol de las iglesias cristianas evangélicas en la victoria del “No” en el plebiscito de Colombia”, BBC Mundo, 5 October 2016; “El voto evangélico, clave en la victoria del ‘no’ en el plebiscito de Colombia”, El País de España, 13 October 2016. There is no way of knowing how many votes the churches provided, though they are widely credited with contributing two million to the “no” campaign. Some church actors did favour “yes”, but they are perceived as a minority.Hide Footnote The Christian “no” vote, however, is not homogeneous. While references to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues in the peace agreement were ripped out of context and used to anger most Evangelical voters, there is less consensus among these Christian communities on other issues, such as justice, the truth commission and land ownership. Some pastors and followers but not all seem interested in political influence.[fn]Cristianos: ¿el poder decisorio en la política?”, Semana, 29 October 2016; Crisis Group interview, Christian pastor involved in post-plebiscite negotiations, 3 November 2016.Hide Footnote

Crafting coalitions will also be a priority for parties looking to defend the peace agreement. Numerous parties favour peace but by themselves do not provide enough votes to secure a second-round candidacy, as their support is scattered. Creating a pro-agreement alliance would be a step toward assuring that a candidate willing to implement the accord reaches the second round. But such a coalition would feature a wide array of groups that disagree strongly on other issues.[fn]Crisis Group interview, pro-agreement senator, Bogotá, 30 November 2016. For example, Jorge Robledo, Democratic Pole party senator and its possible presidential candidate, favours the accord but strongly opposes the government’s new tax bill, which parties that also support the deal back. “La peor reforma tributaria imaginable: Robledo”, Jorge Robledo, official website, 20 October 2016.Hide Footnote

The pro-agreement coalition would feature the Green Party, a force whose ability to mobilise votes is likely larger than its current representation in Congress; the Liberal and U parties, in which Santos has his roots and currently belongs respectively, and which are unlikely to make it to the second round, having done so in 2014 only because of their alliance with the Radical Change party in the first round; and what remains of the divided, left-leaning Democratic Pole party. Pro-agreement candidates will also have to find the right balance between supporting the accord and distancing themselves from Santos. The tax reform passed toward the end of 2016, which hiked value-added tax by three percentage points, the troubled economic conditions due to declining oil revenues and the president’s unpopularity make it essential that candidates who favour the peace process differentiate themselves from him and his government on other issues.[fn]President Santos’s 60 per cent disapproval rating, “Gallup Colombia Poll #116”, December 2016, is likely to worsen after a very unpopular tax reform in December. In 30 November Bolívar Plaza protests, when the House of Representatives voted on the new peace agreement, some accord protesters also held signs and chanted against the tax reform, believing it was connected to paying for peace and FARC reincorporation.Hide Footnote

Coalitions will also be decisive for forming a majority in Congress.[fn]Eighteen parties are in Congress; five parties competed in the first round of the last presidential election. Regionally-based small parties can amass just enough votes to enter Congress but not enough to be on the presidential ballot. See “Partidos y Bancadas”, Congreso Visible, s.f. “Elección de presidente y vicepresidente – primera vuelta”, Registraduría Nacional de Colombia, s.f.Hide Footnote The plebiscite result suggests the DCP could well increase its Senate representation. In the House of Representatives, however, it may find the going harder. Others tend to have greater regional success, including the Conservative, Liberal and U parties.[fn]Crisis Group interview, political expert, Bogotá, 10 November 2016. In the House of Representatives, the DCP has nineteen seats, six from Antioquia, five from Bogotá and eight from different departments. It has only one governor (Casanare). All but one of 27 Conservative party deputies are from outside Bogotá, as are 36 of 39 Liberals and 35 of 37 U party deputies. See “Elegidos Congreso de la República 2014-2018”, Registraduría Nacional, s.f.Hide Footnote To form congressional majorities, the DCP must count on other parties, making preservation of opposition unity vital for it. Pro-agreement parties will also seek to stay united on the issue to keep their congressional numbers.[fn]Crisis Group interview, opposition negotiator and senator, Bogotá, 30 November 2016.Hide Footnote

If the opposition does take power with a mandate against at least part of the peace agreement, implementation of the most contested areas could end. One option would be to modify laws that were impossible to change when they were originally passed due to the fast-track. Another would be to starve politically and financially key institutions, programs or policies. By underfunding them or undercutting their political importance, it could quickly make the accord an irrelevance.

The government has tried to prevent this by tabling a bill that would oblige future governments to implement the peace agreement, but this could be repealed or ignored after a shift in the balance of power.[fn]Proyecto de acto legislativo 01 de 2016 senado“, law proposed by Interior Minister Juan Fernando Cristo, 19 December 2016.Hide Footnote Pressure from abroad and vocal parts of Colombian society, however, might make it prohibitively costly to jettison the agreement. In that case, a commitment to continue implementing key parts of the agreement, such as transitional justice and humanitarian mechanisms, and not undo progress on other points, could be a viable goal for renewed dialogue between the government and opposition throughout 2017.

IV. Implementation and its Effect on Political Support

During 2017, congressional and presidential support for the agreement will be strong and stable. But popular support for its implementation is fragile and uncertain beyond the short term, putting full application of the accord at risk. A small window exists during which implementation could decisively shift backing in either direction, depending on success in carrying out fundamental parts of the pact and altering conditions in conflict-affected territories.

A. FARC Concerns

The effect on the FARC of political opposition to the peace agreement is likely to become more pronounced in coming months. Throughout the ceasefire, and particularly since the plebiscite, it has faced the risk of increased internal strains. The ceasefire violation in southern Bolívar is telling: the front operating there was unable to control its fighters or had simply continued extortion. A later expulsion of five mid-level commanders in the eastern plains, including Gentil Duarte, who had been put in charge of the faction of the First Front that supported the peace agreement, shows the strains at that level, whether due to political uncertainty, connections to lucrative illegal economies or both.[fn]Crisis Group interview, Tripartite Mechanism member, Bogotá, 9 November 2016. “FARC-EP separa a 5 mandos de sus filas”, FARC-EP, 16 December 2016. In June 2016, a First Front faction in Guaviare announced it would not be part of the agreement. FARC leadership then selected Duarte, a Central High Command member, to lead the part that still supported the peace accord.Hide Footnote

The political climate fosters one concern above all within the FARC: that the government will not fulfil its part of the accord. While the group, in its tenth conference in September 2016, ratified the whole peace agreement by consensus, the possibility of returning to the battlefield resurfaced in December, when Timochenko reminded fighters they might have to prepare for “plan B”: resumption of war. Such threats could increase if implementation is jeopardised.[fn]Crisis Group interviews, FARC members, Yarí plains, 15-25 September 2016. “Timochenko alerta a la tropa de las Farc: preparemos el plan B”, Las 2 Orillas, 8 December 2016.Hide Footnote

FARC dissidents could cause violence, which would produce a chain reaction on implementation and national political support for the agreement. There have already been reports of First Front violence in Guaviare and Vaupés.[fn]Defensoría alerta sobre reclutamiento forzado y extorsiones de bloque disidente de las Farc en Vaupés”, El Espectador, 11 November 2016.Hide Footnote Dissidence in the ranks of the Daniel Aldana Front has been confirmed in Tumaco, though it is not clear whether this is related to the peace process or a schism caused by the character of the front (formerly a mobile column). The death of Don Y, a leader of the dissident faction, at the hands of the FARC in November showed how infighting can lead to violence.[fn]‘Don Y’, el disidente de las Farc que azota a Tumaco”, La Silla Pacífica, 31 October 2016; “Las Farc mataron a ‘Don Y’”, La Silla Pacífica, 16 November 2016. Eduardo Álvarez, “Disidencias de las FARC: ¿Por qué lo hacen? ¿Qué tan peligrosas son?”, Razón Pública, 14 November 2016.Hide Footnote With other armed groups looking to take over Tumaco, home to a dense concentration of coca crops, increased violence there is probable. The removal of five commanders, plus a skirmish between eight dissident members of the 14th front and pro-agreement members of the Teófilo Forero mobile column, provide further examples.

After the weapons handover finishes, the possibility of FARC members returning to violence could grow, through dissidence or individual desertion from the reincorporation program. That program for ex-fighters is notably weak when it comes to a specific approach for mid-level commanders, who are used to handling large sums of money and enjoying political and military power. Many key details of the reincorporation process will only be decided after the census of FARC combatants is finished and Ecomun – the cooperative business the FARC is to run for their reintegration – is created. The political and humanitarian costs of fighters leaving the process to return to violence would be extremely high.[fn]“Lo que tiene que pasar este año para aterrizar los acuerdos”, La Silla Vacía, 10 January 2017. For more on FARC reincorporation, see Crisis Group Report, Colombia’s Final Steps, op. cit.Hide Footnote The already-established National Reincorporation Council and Ecomun will have key roles in keeping fighters involved.

In the immediate future, the first, most critical part of the timetable for both guerrillas and government is the weapons handover to the UN mission.[fn]On D-Day +90, FARC combatants will have to hand over 30 per cent of their weapons; on D-Day +120, another 30 per cent; and on D-Day +150, the remaining 40 per cent. By D-Day +60, the FARC will have had to hand over all light weapons, grenades, munitions and militia arms.Hide Footnote The end of FARC existence as an armed organisation is the crux of the peace agreement and was the government’s principal argument to muster support for quick renegotiation after the plebiscite. Typically, many challenges arise in such processes, including delays, logistical issues and incomplete handover of weapons, and these have already affected FARC concentration. Arms abandonment by the FARC will likely face other problems that the opposition could easily highlight to argue the process is faltering. Discovery of hidden arms, for example, would fuel a wary public’s mistrust. At the same time, lack of medium- and long-term political support for the agreement increases the possibility parts of the FARC will hedge their bets on peace and so risk further undermining public backing.[fn]Crisis Group interview, opposition negotiator, Bogotá, 30 November 2016; Pro-agreement senator, Bogotá, 30 November 2016. For more on the arms handover process, see Crisis Group Report, Colombia’s Final Steps, op. cit.Hide Footnote

A pressing reason for the FARC to prevaricate in this way is the killing of and threats against local social leaders. At least 90 killings and more than 230 threats were recorded in 2016.[fn]Armando Neira, “Asesinatos de líderes sociales, el lunar que deja el 2016”, El Tiempo, 28 December 2016. Eduardo Álvarez, “Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016.Hide Footnote It is imperative that the government protect civilians in targeted communities, irrespective of who is doing the killings or whether paramilitaries are behind the wave of violence. If the hypothesis that armed groups moving into new territory and seizing control over illicit economies explains part of the killings, the government must make substantial progress on filling the power vacuum left by the FARC.[fn]Crisis Group interview, high-level diplomat, Bogotá, 28 November 2016.Hide Footnote Until then, the continued killing heightens the risk of fragmentation within the FARC and undermines the perceived benefits of peace locally.

The agreement on security guarantees, for the FARC and other activists and political actors locally, needs to be enforced quickly and effectively. The government should start by strengthening existing individual and collective protection schemes and work with local leaders on steps they can take to mitigate risks. This can be done while the FARC security system is set up during the weapons handover process. Opposition leaders should also increase the frequency and volume of their condemnations of such violence and clearly distinguish their arguments against the peace deal from the actions of violent saboteurs at the local level.[fn]This is not to say there is a connection between the opposition and this violence, but rather that perpetrators might be using opposition arguments to justify their actions.Hide Footnote The international community, already highly concerned by the violence, could raise the international visibility of these attacks by more frequent public condemnations and calls for justice.

B. Planning Successful Implementation

Weapons handover began poorly. Shockingly little had been done to install adequate infrastructure in the cantonment sites, causing delays in the first steps of the process.[fn]“Comunicado Conjunto Nº 10”, GOC and FARC-EP, 28 December 2016.Hide Footnote FARC fighters will gradually move from the pre-grouping sites as the 26 cantonments are finalised. By mid-January, land to house combatants had been rented in only seventeen. Only in two, Putumayo and Policarpa, Nariño, were FARC fighters able to stay and build the facilities they need to live. According to the government, preparation of cantonment infrastructure is moving fast.[fn]Gobierno acelera el paso para dejar listas las zonas veredales de Farc”, El Tiempo, 10 January 2017; “El 90% de los miembros de las Farc está a 10 km de zonas de desarme”, El Tiempo, 10 January 2017.Hide Footnote A renegotiated protocol has established that delivery of the materials needed to finish construction and the complete concentration of the FARC are to be accomplished by 31 January.[fn]“Acta de acuerdos de trabajo entre el gobierno nacional y las FARC-EP”, GOC and FARC-EP, 17 January 2017.Hide Footnote

While the first three deadlines – FARC concentration, destruction of unstable weapons and transfer of personal and militia-members’ small weapons to the cantonments – were not met, the government has insisted the rest of the handover process will go as scheduled. These targets could easily encounter problems, but it is essential they are met according to the accord’s terms to prevent feeding public mistrust of the group. To avoid this, fighters who arrive first in cantonments could be part of the 30 per cent to hand over their weapons at D-Day +90.

The UN mission and the Tripartite Mechanism to verify and monitor the ceasefire and weapons handover have key roles.[fn]UN: First 2 Deadlines in Colombia Cease-Fire Can’t Be Met”, The New York Times, 11 January 2017. “Ya tenemos 17 zonas arrendadas y 8 en trámite’: Carlos Córdoba”, Semana, 10 January 2017. “Para evitar más muertes, Sergio Jaramillo propone acelerar implementación de acuerdos”, El Espectador, 16 November 2016; “Intervención del Presidente Juan Manuel Santos en el acto de la Firma del Nuevo Acuerdo de Paz con las Farc”, Presidencia, 24 November 2016.Hide Footnote The former has already been engaged in verifying ceasefire violations but has also become entangled to some degree in a few incidents of improper behaviour. Though they were not directly involved, the governor of Antioquia’s accusations that under-age prostitution and heavy drinking by many FARC members in town centres suggested lack of clear information on the ceasefire process. The Tripartite Mechanism later confirmed there was no prostitution but verified a case in which a FARC member violated protocol, leaving the cantonment without permission and drinking and arguing with a civilian in a small hamlet. The governor toured the cantonments after the DCP openly supported him and subsequently backtracked on his original accusations. Still, the Tripartite Mechanism, including the UN mission, in effect became the arbiter between political rivals.[fn]La pelea entre las FARC y el gobernador de Antioquia”, Semana, 28 December 2016. “Mecanismo de monitoreo y verificación communicado de prensa”, Misión de la ONU en Colombia, 30 December 2016. “Uribe dice estar dispuesto a acompañar al gobernador de Antioquia a sitios de preconcentración”, RCN, 29 December 2016. “Así avanza la polémica revisión de las zonas de concentración en Antioquia“, Semana, 7 January 2016.Hide Footnote

More publicly, images of UN mission staff dancing with FARC members on New Years’ Eve led to an opposition outcry and claims that the mission’s credibility and impartiality had been impaired. The members involved were removed, though some questioned whether the incident had not been overblown.[fn]Misión de la onu en colombia separa a observadores de su servicio”, Misión de la ONU en Colombia, 5 January 2016. Marta Ruiz, “El episodio de los verificadores: un escándalo desproporcionado”, Semana, 6 January 2017.Hide Footnote

In its first report, which gained limited media and public attention due to the focus on the alleged scandals, the UN mission stated that 280 observers were in the country, with the number to increase to 450 in January, though the civilian component has lagged behind deployment of the military. A balance between the civilian and military parts of the mission is essential, especially in maintaining strong relationships between the mission, local authorities and communities. By 7 December, the mission had also successfully monitored 183 movements of FARC fighters and dealt with 27 requests for verification, only nine of which could be investigated as eighteen were not within its mandate.[fn]Primer informe de actividades del MM&V”, Mecanismo y Monitoreo y Verificación, 30 December 2016.Hide Footnote

The troubled start to concentration of FARC forces should not obscure the importance of the mission’s role in the future handover of weapons. Complete deployment of personnel across all cantonment sites and regular release of updates to the media beyond its regular reports, with consent of the government and FARC, would help enhance the mission’s effectiveness and public standing, as well as the public’s perception of progress. The mission should also work closely with the government and FARC to push them to follow the weapons handover schedule laid out in the peace agreement, despite early delays.

A robust communications strategy for when the FARC hands over weapons is crucial to gain support for the process. The opposition has not made the early delays the focal point of its complaints, concentrating instead on the relationship between the UN, the government and FARC. Its grievances have been based on mistrust of the guerrillas, which would only be fuelled by an insufficiently transparent weapons handover. To overcome scepticism, the FARC would be well advised to drop its long-held misgivings and allow publication of photos of fighters handing over weapons to the UN mission. Its new media savviness, which has bolstered its poor public image, and its interest in generating political capital suggest it may do so.[fn]Crisis Group interviews, FARC negotiator, Havana, 9 June 2016; high-level diplomat, Bogotá, 28 November 2016. “Nueva estética de las Farc, ¿Estrategia mediática o cambio verdadero?”, Semana, 12 November 2016.Hide Footnote The cost of not doing so could be proliferation of claims that the FARC have held back some weapons.

The handover is due to end six months after D-Day, but the Special Jurisdiction for Peace (SPJ) will not be operating by then. Given that justice was one of most controversial items in the peace accord, opposition scrutiny of the transitional justice system and misgivings about the SPJ will be prominent in the year’s debate. That benefits for FARC fighters, such as amnesties, security measures and reincorporation money will be provided early on, while SPJ sentences will be handed down much later, could create an impression that the FARC is being rewarded without having fulfilled any judicial or truth obligations.[fn]Crisis Group interview, member, international community, Bogotá, 14 December 2016.Hide Footnote As Congressional and presidential campaigns enter their final stretch, the SPJ will likely be hearing its first cases. How it handles them and how the accused behave toward the courts, will surely be closely scrutinised by the opposition and voters.

The FARC should cooperate as much as possible with transitional justice mechanisms, including the SPJ, the truth commission and efforts to find remains of victims of forced disappearance. By proving commitment to fulfilling their obligations even at personal cost, FARC leaders could sway opinions on peace and undercut opposition arguments. Not doing so or using the new judicial mechanisms to defend its war effort, point fingers and/or deny responsibility in high-profile cases would strengthen opinion against the guerrillas and the peace agreement. Members of the Armed Forces must also appear before the SPJ so as not to fuel a perception it is a mechanism aimed only against the FARC and protects state officials.

Public apologies for major war crimes should also remain part of FARC and government approaches to building support for the deal. FARC has apologised for killing eleven deputies in 2007; it should do the same for bombing the Nogal club in Bogotá in 2003. But these should not be public shows of remorse for political purposes.[fn]The public apology in La Chinita for a 1994 massacre had much show and little substance according to an attendee. Crisis Group interview, diplomat, Bogotá, 21 October 2016.Hide Footnote More generally, the focus on and participation of victims in early implementation and other peace activities should remain central, including efforts to find victims of forced disappearance and cooperation with the truth commission. Not doing so would undermine the argument that victims were central to the negotiation and the agreement’s legitimacy. Matters have been made more complicated since the plebiscite by disputes between different opposition and pro-agreement actors over the right to represent victims, a contest that will inevitably continue into the election season.[fn]Opposition actors claimed to speak for FARC victims, including Sofía Gaviria and Herbin Hoyos, as did government and pro-peace agreement leaders.Hide Footnote

The government also needs to continue educational work to create ownership of the accord by local and regional communities, as well as urbanites. Generating that sense would increase the political cost of non-implementation or diluting content. The opposition showed in the plebiscite that connecting the accord to people’s everyday lives, accurately or not, was an effective strategy.[fn]Crisis Group interviews, political activist and university professor, Bogotá, 16 November 2016; opposition negotiator, Bogotá, 30 November 2016. “El No ha sido la campaña más barata y más efectiva de la historia”, La República, 5 October 2016.Hide Footnote Proactive communication to show progress in implementation would be equally important.

A number of other important efforts related to the agreement, especially de-mining, will also be measures of tangible progress. It was recently announced that after 46 devices were destroyed over more than a year, Orejón, in Briceño, Antioquia, no longer has any landmines.[fn]Deicy Johana Pareja M., “El Orejón, la vereda que es ejemplo del desminado humanitario”, El Tiempo, 22 December 2016; “Vereda Orejón, municipio de Briceño (Antioquia)”, Dirección Contra Minas, n.d.Hide Footnote Such efforts, as well as coca crop substitution pilots and other quick-impact projects by different institutions, can help communities feel that peace has brought a major material change in their daily lives and create an expectation of economic and institutional development to come. The 700 projects that the post-conflict ministry recently announced it will begin or carry out in the first 100 days of peace, in addition to its Rapid Response Plan, will be crucial, but there is still a lack of financial and political backing within the government. Adequately managing local communities’ expectations will thus be essential.

Lastly, creation of a space to reinitiate and maintain political dialogue with the opposition on implementation should also be explored. This might begin by inviting “no” leaders to meetings on verification and/or implementation issues and help channel political debate toward serving the stability of the peace process rather than undermining it.[fn]Crisis Group interview, opposition negotiators, Bogotá, 8 and 30 November 2016.Hide Footnote

C. Peace and Other Armed Groups

Implementation of the renegotiated peace agreement faces major challenges at the regional and local levels due to the presence of other armed groups, which will in turn influence national support for the process. Foremost among these groups is the ELN, whose own putative peace process was not aligned with the FARC’s. Negotiations have not begun, though they are scheduled to start on 7 February.[fn]Fase pública de diálogos con el ELN se inicia el 8 de febrero”, El Espectador, 18 January 2017.Hide Footnote Trying to implement the FARC accord where the ELN is active poses acute dilemmas.

ELN violence will affect the government’s ability to implement the peace, especially as the group is expanding its presence and still operates in many priority conflict-affected areas, such as Catatumbo and Arauca (both on the Venezuelan border), as well as Cauca, Nariño and Chocó. Even aspects of the deal that have broad support are affected by the ELN presence, as shown in the Santa Rosa del Sur incident.[fn]“Tripartite Mechanism Communiqué: Government of Colombia and FARC-EP violated ceasefire in south Bolívar incident”, Tripartite Mechanism, 30 November 2016. The FARC fighters involved in the incident had presented themselves as ELN combatants, leading the army to attack them in the belief it would not be violating the ceasefire.Hide Footnote Establishing an effective state presence where control is still contested by armed groups will be costly in lives and resources. The integrity of peace with the FARC will also be at stake in areas where little is likely to change in terms of violence, such as Arauca, Cauca and Catatumbo.[fn]Some recent murders in Cauca, where killings have increased, have been attributed to the ELN. “Tres hombres asesinados en zona rural de Silvia, en el norte del Cauca”, El Tiempo, 20 September 2016. The ELN has also been accused of “killing communists” in Arauca. Carlos A. Lozano Guillén, “Mirador: Carta a Gabino (I)”, Periódico Voz, 2 September 2016.Hide Footnote The situation is aggravated where the FARC and ELN have made agreed or coordinated a transfer of territorial control, such as Cauca and Nariño.[fn]Crisis Group interviews, high-level diplomat, Bogotá, 2 August 2016; government official, Bogotà, 9 December 2016.Hide Footnote

Effective implementation of the FARC accord is also important to convince the ELN it can trust the government to fulfil agreements it signs with insurgents. After the plebiscite, the group internally questioned the merits of trusting the government to deliver on its promises, exacerbating mutual wariness that in any case has tended to be worse than what existed between government and FARC at the start of their negotiation.[fn]During secret government-FARC talks, the latter concluded that Santos was serious about peace. The ELN, years later and during talks to define a negotiation agenda, argued that Santos represented the same old political elite. This, for some in the ELN, has led to a view that negotiations with the government are the correct path, but not now. See Víctor de Currea-Lugo, “Eln dice estar listo para la paz, entrevista con Antonio García”, El Espectador, 9 December 2016. Crisis Group interview, ELN experts, Bogotá, 3 October 2016; Yarí plains, 23 September 2016.Hide Footnote Any further deterioration in ELN confidence in the state would imperil the possibility of a peace accord with it in the near future. It would also be calamitous with regard to public support if ELN presence became a reason for failure to implement the FARC agreement, which in turn would lead the ELN to continue to mistrust the government’s ability to deliver on peace.

Other armed groups, such as neo-paramilitaries and the remnants of the Popular Liberation Army (EPL) will also create difficulties for implementation on a local level.[fn]This report uses the term “neo-paramilitary” instead of criminal bands or Bacrim, per Soledad Granada, Jorge A. Restrepo and Alonso Tobón García, “Neoparamilitarismo en Colombia: una herramienta conceptual para la interpretación de dinámicas recientes del conflicto armado colombiano”, in Restrepo and David Aponte (eds.), Guerra y violencias en Colombia Herramientas e interpretaciones (Bogotá, 2009), pp. 467-499. The Libardo Mora Toro front, the remains of the EPL, operates in the Catatumbo region. It is the only dissident front from the 1991 EPL peace process that still exists.Hide Footnote Both have been moving into areas of former FARC control for some time and will continue to do so unless stronger judicial, political and law-enforcement action is taken against them. Colombia is witnessing a resurgence in coca cultivation, and crop substitution programs designed by the peace accord will take time to have an effect.[fn]According to the UN Office on Drugs and Crime (UNODC), coca cultivation in 2015 increased by almost 40 per cent, to 96,000 hectares. “Colombia: Monitoreo de territorios afectados por cultivos ilícitos 2015”, UNODC, July 2016.Hide Footnote If other armed groups take control of areas with illicit crops before the state can, they could directly stimulate new dynamics of violence and influence the success or failure of crop substitution.

Many social movements believe the neo-paramilitaries – mainly the Gaitán Self-defence Forces (AGC) – are behind the recent increase in killings of local activists, whether for political or economic reasons.[fn]The AGC, also known as the Gulf Cartel, Úsuga Clan or Urabeños, was created and became heavily involved in drug trafficking after the paramilitary demobilisations that ended in 2006.Hide Footnote Evidence for this is patchy, however, and there does not appear to be one specific phenomenon or organisation responsible.[fn]Some interpret the killings as done by paramilitaries under the direct influence of high-level political opposition, though there has been no evidence connecting the two. See Oto Higuita, “¿Por qué están asesinando a los voceros e integrantes del Marcha Patriótica?”, Prensa Rural, 2 December 2016. “¿Quién está ordenando matar a los líderes sociales en Colombia?”, El Colombiano, 27 November 2016. Eduardo González, “¿Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016. Crisis Group telephone interview, high-level diplomat, 28 November 2016.Hide Footnote The ELN is behind some killings, as in Arauca; local armed groups connected to local political elites play roles in others, such as in Urabá; and in yet other areas, such as Caguán, the possible arrival of new armed groups might be the main factor.[fn]Crisis Group interviews, government official, Bogotá, 2 December 2016; political analyst, Bogotá, 9 Jul 2016; high-level diplomat, Bogotá, 28 November 2016. Eduardo González, “¿Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016.Hide Footnote Even so, the sense that political violence is on the rise makes implementation more difficult, not only because of its effect on FARC’s transition to civilian life, but also because community leaders may come to see participation in peace mechanisms as personally risky.[fn]This is already a risk, as the renegotiated accord weakens community participation. Juanita León, “La gran diferencia entre el Acuerdo I y el Acuerdo II”, La Silla Vacía, 15 November 2016.Hide Footnote

While the agreement includes various initiatives aimed against these groups, including the new investigative unit in the attorney general’s office, and calls for international support to the initiatives, these will be necessary but likely insufficient to constrain new patterns of coercion on the ground. A clear risk exists that implementation of the peace agreement could lead to greater violence in certain areas if the state does not move quickly enough to protect local populations and also to combat neo-paramilitary groups.

There are various explanations for the prospect of a spike in criminal and political violence once the peace accord gets underway. First, armed groups could clash over control of areas the FARC leave, as has occurred between the ELN and AGC. These will be areas with strong illegal economies, trafficking routes and militarily strategic points, such as Tumaco, Chocó and the Nudo de Paramillo, for example. Other reasons are more political. While some concerns of local land-holding elites regarding rural reform aspects were addressed in the new accord, others remain and have led some of those landholders to reject the renegotiated deal.[fn]Crisis Group interview, government official, Bogotá, 9 December 2016.Hide Footnote If the relationship between some of these elites and illegal armed groups and/or actors stays in place but is targeted toward the accord’s land distribution terms, violence could well increase, including in areas traditionally vulnerable to land conflict such as Urabá.[fn]James Bargent, “BACRIM Vuelve a sus Raíces Paramilitares en la Lucha por la Tierra en Colombia”, Insight Crime, 19 July 2013.Hide Footnote

Another possible source of violence prompted by the peace accord’s implementation is continuation of attacks against social leaders due to the perceived imminent opening of the political system regionally and locally, including the sixteen special circumscriptions in Congress for conflict-affected areas.[fn]The peace agreement creates sixteen special constituencies in Congress so that conflict-affected regions can have a stronger voice in legislation and policymaking. The idea is that those who run for these seats not be part of established political parties (including that to be established by the FARC), represent isolated regions and give a voice to victims. See “Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera”, GOC and FARC-EP, 24 November 2016, p. 54.Hide Footnote Such local, conservatively-minded political violence has history in Colombia and explains how the paramilitaries gained so much power in the 1980s and 1990s.[fn]Mauricio Romero, Paramilitares y Autodefensas (1982-2003), IEPRI (Bogotá, 2003).Hide Footnote A spike of violence in this spirit would be qualitatively similar to that against the Patriotic Union (UP) in those decades, though it is very unlikely to reach the same level. Too many international actors are already concerned and attentive, thus raising its cost.

D. Institution Building

Violence and security on the ground are not the only issues that could dent political support for the agreement in 2017. Much of the problem for smooth implementation stems from the institutions meant to manage the war-peace transition. Some national-level ones barely exist beyond paper, with little staff or capacity to execute budgets or projects: these include the National Land Agency, the Territorial Renovation Agency and the Agency for Rural Development.[fn]Crisis Group telephone interview, high-level diplomat, Bogotá, 28 November 2016.Hide Footnote If unable to execute on the ground, the state will risk losing the chance to gain local legitimacy. Since they are coming into existence at a time of tight caps on public spending, their financial and political support is also very fragile, especially given the current and historical resistance to rural reform. Facing the threat of being starved of resources or steered toward invisibility over time, as has happened with previous rural-focused institutions, they badly need an injection of high-level support, money and staff.[fn]For a quick review of land reform and institutional issue literature, see La política de reforma agraria y tierras en Colombia Esbozo de una memoria institucional, Centro Nacional de Memoria Histórica (Bogotá, 2013).Hide Footnote

Institutional fragmentation at different levels poses additional dilemmas. Political pressure to combat increasing coca cultivation has led various state actors to adopt rival strategies, some of which could be contrary to the accord’s spirit. This risk will grow if the opposition comes to power in 2018. Local political actors also have insufficient institutional and technical capacity to implement many parts of the agreement, and in some cases, their willingness will be fragile, unless they feel they can obtain financial resources for their regions.[fn]Crisis Group interview, political analyst, Bogotá, 3 December 2016.Hide Footnote

The Rapid Response Plan (RRP), designed by the post-conflict ministry (MPC) but to be implemented with and by various other institutions, needs both political and financial support. The friction between implementing institutions, the MPC and the High Commissioner for Peace’s Office remains a problem, as some institutions feel the latter two overstep their bounds and are too influential. Lack of a clear transition from the RRP to implementation of longer-term aspects of the peace agreement also raises broader concerns.[fn]Crisis Group interviews, government official, Bogotá, 9 December 2016; political analyst, Bogotá, 2 December 2016.Hide Footnote Stronger leadership from above, complemented by international community pressure, is needed.

V. A Role for the International Community

The international community has focused on supporting the peace process and ensuring it concludes with a feasible, robust agreement. It has done so by providing economic resources for state institutions and civil society actors working on peace issues; political backing for the process; delegates from the guarantor and accompanying nations and special envoys from the U.S., European Union and Germany; and technical support on implementation issues, such as support for local justice mechanisms and formalisation of land titles. Such backing remains essential.

A. Implementation and Political Support

In the current political context, a quick start to implementation, with early victories, is ever more required. Though the plebiscite suggested that high-level international support was less effective than anticipated, the delegates and envoys who aided the negotiations should continue to press for the agreement to be carried out. Not only could they be helpful in resolving disputes and influencing the government and FARC, but they will also be able to highlight the broad foreign commitment to peace in Colombia.[fn]The U.S. special envoy to the peace talks, Bernie Aronson, no longer plays this role, and no replacement is in sight. The U.S. Secretary of State nominee, Rex Tillerson, stated in a written response to questions as part of his confirmation process, that the U.S. would have to “review” the new peace agreement to determine which parts it would support. “Trump’s state nominee raises doubts on Colombia peace pact”, The Washington Post, 22 January 2017.Hide Footnote The rural reform pact in particular will face political resistance on different levels, and the international community can play a vital role in raising the cost of obstructing or ignoring it. Financial aid and pushing the government to get key institutions functioning would be major contributions.

International support can also influence FARC decisions, especially if an opposition government proposes changes to, rejects or is unwilling to implement parts of the accord. Given the group’s concerns with full implementation, a change in government could undermine its commitment to peace, leading to fragmentation as some of the organisation return to organised violence. Pressing the FARC to maintain its commitment to peace will be vital. Here the second UN mission, requested in the peace accord to monitor FARC political participation, reincorporation and security guarantees, will have a vital role in maintaining trust between the guerrillas and government. It will also be politically contentious, as its mandate covers the most controversial issue in the new agreement, namely the FARC’s participation in politics. It will need to be functioning quite soon in order to respond to its mandate; early preparation to take advantage of the period before its mandate begins is essential.

Financial aid will also be vital, especially beyond 2017. Colombia is currently unable to fully afford its post-conflict pledges, something that the international community has committed to make good. In the longer term, financial support might help persuade a new government to honour disputed aspects of the accord. Partners could also work directly with local governments, providing financial and technical assistance and ensuring that political differences between local, regional and national levels do not impede implementation.[fn]Crisis Group interview, political analyst, Bogotá, 3 December 2016.Hide Footnote Finally, international non-state actors will also need funding, such as the UN High Commissioners for Refugees and Human Rights, among others, who have important post-conflict roles on displacement, border issues and violence, all risks to a successful transition from war to peace.

B. The Special Issue of Drugs

It is unlikely that a decrease in coca cultivation resulting from application of the peace agreement will occur before 2018. New programs need time and will be largely emasculated if support wavers. Recent coca production increases have made the drug issue important again to preventing violence, but also politically critical. The opposition points to rising hectarage to argue that drug policy is not working due to concessions made to the FARC, including prohibition of aerial fumigation. Drug policy also is a source of tension within the government and between Bogotá and local communities.[fn]“Procurador colombiano acusa a Santos de proteger cultivos de las FARC”, El Nuevo Heraldo, 18 April 2016; “Uribe considera que fin de aspersiones con glifosato es exigencia de las Farc”, El Nuevo Heraldo, 10 May 2015. Between July and September 2016, protests by coca growers, mainly in Putumayo, lasted 39 days, as peasants rejected the use of fumigation chemicals applied on the ground during manual eradication. Peasants in Putumayo also have voiced concerns over drug policy and implementation of the peace agreements on crop substitution. See “Razones del paro cocalero en Putumayo”, El Espectador, 19 August 2016; “Levantan protesta cocalera en Putumayo”, El País de Cali, 7 September 2016; Crisis Group interviews, local leaders and coca growers, 20-24 March 2016. Within the government, new Attorney General Néstor Martínez has called for fumigation to be reinstated but with new chemicals. “Fiscal pide volver a la fumigación aérea contra los cultivos ilícitos”, El Tiempo, 4 September 2016.Hide Footnote When published this year, cultivation data will show another increase in 2016, before crop substitution programs derived from the peace deal begin. This may increase calls for traditional policy, including forced eradication. The government plan to substitute and forcefully eradicate 50,000 hectares each in 2017 is probably unreachable and will also create serious tensions on the ground. The forced eradication will also produce unnecessary tension with the FARC and close the state’s window to gain legitimacy in areas highly affected by coca cultivation.

The international community, especially the U.S., should give the agreement on illicit drugs a chance to prove itself and not expect immediate decreases in illicit crop cultivation. The focus should instead be on strengthening interdiction within and outside Colombia and supporting the rapid and effective implementation of the relevant points of the peace agreement. Prioritising such implementation over national and international political interests related to traditional counter-narcotics policy will be critical, not least because returning to costly forced manual eradication, the results of which are easily reversible, is no guarantee of success.

VI. Conclusion

Colombia has signed and ratified the peace agreement, and the whole of the FARC will soon be in cantonment sites, where they will hand over their weapons and begin transition to civilian life. While this is cause for celebration, how peace was signed and approved was highly controversial, and the agreement appears to lack broad, stable, sustainable political support. Implementation is threatened on several fronts, and with a united and strengthened opposition, the future looks somewhat bleak for pro-agreement leaders. The peace deal is likely to be a target for multiple grievances in the 2018 presidential election, which may produce a result not unlike that of the 2 October 2016 plebiscite.

Substantial and rapid progress on implementing crucial aspects of the agreement is needed in 2017 to shift the balance in favour of the accord. The difficult national and local contexts – a financial shortfall, a stuttering peace process with the ELN, weak institutions and internal government rivalries and high levels of targeted killings in rural areas – mean implementation faces concrete threats that have been partly aggravated by political disputes over the peace agreement. If efforts to apply the accord do not overcome these initial hurdles, parts of it may be condemned to failure before they have a chance to succeed. If that happens, FARC commitment to peace, the possibility of a similar negotiation with the ELN and prospects for addressing the root issues in the long armed conflict will all be in doubt. The immediate political battle to finalise the agreement has been won, but it is premature to declare victory for peace.

Bogotá/Brussels, 31 January 2017

Appendix A: Map of Colombia

Map of Colombia AB Carto/International Crisis Group
At a May 2017 protest in Vavuniya, Sri Lanka, many women said their children were taken in for questioning in the last stages of the war in 2009, or shortly after, never to return. Original at http://bit.ly/thedisappearedgv GROUNDVIEWS/Raisa Wickrematunge
Report 289 / Asia

Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War

Tamil-speaking women in Sri Lanka’s north and east pushed for accountability and truth during the country’s civil war but have been marginalised during the transitional justice process. The government and international actors must include their voices and address their injustices and difficult economic situation to ensure lasting peace.

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Executive Summary

Eight years after the end of Sri Lanka’s armed conflict, Tamil speaking women in the island’s north and east are still seeking justice and truth for wartime violations. Bold promises by the government to the United Nations Human Rights Council in 2015 – including a truth commission, a special court and offices to investigate missing persons and provide reparations – have failed to materialise even as the urgent economic and psychosocial needs of all conflict-affected groups remain unmet. Anger and a sense of betrayal have generated a new wave of women-led protests and threaten to become sources of renewed grievance that damage already slim hopes of reconciliation among communities, and between the state and its Tamil citizens. If Sri Lanka is to address the past in a way that reconciles its communities and builds lasting peace, the government must prioritise the needs and rights of conflict-affected women – beginning by promptly establishing the offices on missing persons and reparations.

The legacy of war continues to impose hardships, particularly on conflict-affected women.

As the armed conflict raged, Tamil speaking women in the war-torn north and east braved a powerful military and an authoritarian government to press for truth and accountability, particularly regarding the enforced disappearance of family members. After the war, their campaigning helped bring transitional justice issues onto the domestic and international agenda. At the heart of promised transitional justice processes are these women’s experiences of rape and sexual violence, the deaths of family members, forced recruitment and killings by the Liberation Tigers of Tamil Eelam (LTTE) and destruction of homes and communities. The legacy of war continues to impose hardships, particularly on conflict-affected women: lack of information on missing relatives, displacement from their land, economic deprivation, psychological trauma, vulnerability to sexual violence and exploitation, plus a militarised environment that reinforces much of the above.

Despite their agenda-setting activism, women have been given little role in shaping transitional justice policies. The government largely has ignored the report of its Consultations Task Force (CTF) on national reconciliation processes, which conferred widely with women and which many hoped would re-energise government’s commitments. Occasional gestures – the release of small amounts of land or meetings by the president with families of the disappeared – are drowned out by the government’s political caution and pro-military tilt. A new constitution, which could address the causes of war and help prevent its recurrence, continues to hang in the balance.

Extensive interviews with women in the north and east make clear they want justice for crimes committed by the state and – albeit with less unanimity – for those perpetrated by the LTTE. Their most urgent demand is to know the fate of missing relatives. These women also insist that the truth and justice they seek must be part of a broader approach to meet their economic, social, psychological and security needs.

Tamil speaking women in the north and east have arguably been more affected by the conflict and its aftermath than any other group in Sri Lanka. Tens of thousands of war widows and wives of the missing have been forced to become heads of household and primary income earners, leaving behind traditional domestic roles and entering the public realm to engage politically, economically and socially. They do this in a highly patriarchal context regulated by rigid cultural and social practices, and made insecure by the continued presence of the Sinhalese military. They suffered gender-based violence and abuse throughout the conflict and continue to do so amid a breakdown in social and family structures. Most have urgent unmet socio-economic needs and many suffer crippling trauma. Muslim and Sinhala women in the north and east and other parts of the country face their own challenges arising from the war and must be better included in transitional justice processes.

Meaningful transitional justice must also reduce women’s severe economic and physical vulnerability.

Meaningful transitional justice must also reduce women’s severe economic and physical vulnerability. A well-designed and empowered reparations office is required to support expanded and better coordinated programs for livelihoods, pensions, debt relief and psycho-social support. The office will need strong political backing from the president and prime minister to overcome political and bureaucratic resistance. Likewise, funding and political support to community- and district-level women’s groups is essential.

The Office of Missing Persons (OMP) should be made operational immediately and given sufficient resources to set up branches in the north and east. It should be staffed with credible, independent voices, including conflict-affected women themselves. An accountability process, with international involvement, may not come soon, but it will be critical to assure that Sri Lanka can put its many ghosts to rest and mitigate the chances of future conflict.

Transitional justice in Sri Lanka has grown moribund largely because the government never tried to build public support for the process or show how it could benefit all communities. A major public outreach campaign to explain how the reparations and missing persons offices will address the legacies of war could help neutralise resistance from political rivals and the military.

Addressing the specific needs of conflict-affected women and involving them more fully in the design and implementation of transitional justice programs are essential steps, both for reducing the rising tension in the north and east and for restoring hope that the political transition promised in 2015 can still be realised.

Recommendations

To begin fulfilling commitments made at the UN Human Rights Council
to a comprehensive transitional justice process:

To the government of Sri Lanka:

  1. Launch a major public outreach campaign to explain the benefits to all communities from the offices for reparations and missing persons and to help reduce resistance from political rivals and the military.
     
  2. Immediately make the Office of Missing Persons operational, with independent staff, offices in the north and east and a role for victims’ families.
     
  3. Establish the Office of Reparations, beginning by inviting public input on the draft reparations law. To design a mandate and office with Sinhala, Muslim and Tamil support, policymakers should consider public opinion along with relevant findings in the Consultation Task Force report.
  4. Design and empower the reparations office to coordinate programs that benefit war victims and their family members from all communities.
     
  5. In cooperation with the UN, donors and provincial councils, formally assess the economic needs of conflict-affected women, especially female heads of household, and devise programs that include an equitable and easy-to-understand pension scheme for victims’ families, medical support for war-disabled women, funding for the education of conflict-affected children, affordable housing and reforms that will enable widows to establish ownership or tenancy of land.
     
  6. Improve psychosocial support for all in conflict-affected areas, including for those who engage with the missing persons office and any other mechanisms established, and provide comprehensive medical treatment for the victims of gender-based violence, in particular sexual violence.
     
  7. Publish a list with the names of all who surrendered to military in 2009 and conduct credible and independent police investigations into disappearances, abductions and other emblematic wartime and post-war political crimes as a step toward ending impunity and building political support for a special accountability court.
     
  8. Acknowledge and facilitate the right of all Sri Lankans – including family of former LTTE members – to commemorate their dead.

To establish conditions for conflict-affected women’s effective
engagement with transitional justice mechanisms:

To the government of Sri Lanka:

  1. Ensure the continued engagement of women, survivors and members of the zonal task forces in planning and implementing the missing persons and reparations offices.
     
  2. Prevent and punish sexual exploitation and violence against women in the north and east by measures that include: access to sexual and reproductive health information and services, enforcing codes of conduct for military and government personnel, deploying more female and Tamil-speaking police officers trained to respond to gender-based violence, strengthening women’s and children’s desks in police and government offices and establishing a special high court division to hear cases involving sexual and gender-based violence.
     
  3. Reduce the impact of the military on civilian life in the north and east by ending the military’s surveillance of women’s homes, including ad-hoc visits, expediting the return of occupied private land and beginning to close or transfer to civilian control military-run farms, shops and hotels.

To the UN and international donors:

  1. Develop protocols and collective monitoring processes to improve the effectiveness of economic support and reduce high debt levels in the north and east.
     
  2. Strengthen political and financial support to community- and district-level women’s groups, including women members of the zonal task forces.
     
  3. Review the UN Peacebuilding Priority Plan to respond better to the changing and increasingly difficult political context and any new initiatives the government may launch.

Colombo/Brussels, 28 July 2017

I. Introduction

Sri Lanka’s long armed conflict was declared over on 19 May 2009, with the killing of senior leaders of the Liberation Tigers of Tamil Eelam (LTTE), who had been fighting to establish a separate state in the country’s north and east. The victory came amid allegations of large-scale civilian killings and violations of international human rights and humanitarian law, including war crimes.[fn]Crisis Group has covered these issues extensively in previous reports: on the war and its legacy in the north, see Asia Reports N°s 191, War Crimes in Sri Lanka, 17 May 2010; 209, hardReconciliation in Sri Lanka: Harder than Ever, 21 July 2011; 217, Women's Insecurity in the North and East, 10 December 2011; 219, Sri Lanka’s North I: The Denial of Minority Rights, 16 March 2012; 220, Sri Lanka’s North II: Rebuilding Under the Military, 16 March 2012.Hide Footnote The UN estimates of civilian deaths in the final months of fighting range between 40,000 and 70,000, with an estimated 150,000 killed over almost 30 years of war marked by brutal atrocities by both sides.[fn]The allegations of war crimes were first investigated by a Panel of Experts appointed by the UN Secretary-General Ban Ki-moon in 2010. Its 2011 report estimated that up to 40,000 civilians were killed during the final five months of war; the secretary-general’s Internal Review of Actions in Sri Lanka (2012) said as many as 70,000 may have been killed in that period. Allegations of war crimes and possible crimes against humanity were found “credible” by the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL), which reported to the UN Human Rights Council (UNHRC) in September 2015. “Report of the OHCHR Investigation on Sri Lanka (OISL)”, UNHRC (A/HRC/30/CRP.2), 16 September 2015. See Crisis Group “Statement on the UN Sri Lanka Investigation Report”, 18 September, 2015.Hide Footnote

The government of then President Mahinda Rajapaksa denied its forces had killed civilians, portraying its victory as a triumph over terrorism and rejecting international pressure to investigate the final days of the war as an infringement of Sri Lanka’s sovereignty. Channelling ethno-nationalist narratives of Sinhala Buddhist supremacy that dismissed the legitimacy of Tamil political grievances, it presented centrally controlled economic development of Tamil-majority war-affected areas as sufficient for “reconciliation”.

In January 2015, Rajapaksa, whose government had taken a markedly authoritarian turn that alienated even large portions of Sinhala civil society, was dealt a surprising defeat in presidential elections by his one-time ally Maithripala Sirisena.[fn]On Rajapaksa-era nationalism and repression, see Crisis Group Asia Reports, N°s 253, Sri Lanka’s Potemkin Peace: Democracy under Fire, 13 November 2013; and 243, Sri Lanka’s Authoritarian Turn: The Need for International Action, 20 February 2013.Hide Footnote Breaking from Rajapaksa’s Sri Lanka Freedom Party (SLFP), Sirisena ran on a platform of “good governance” and the rule of law. He was backed by the SLFP’s long-time rival the United National Party (UNP) and the main Tamil and Muslim parties. Early parliamentary elections in August 2015 gave a narrow victory to the UNP, which formed a national unity government with the SLFP under UNP leader Ranil Wickremesinghe as prime minister.[fn]Tenuously bringing together rival parties that remain deeply competitive, the “unity” government promised to strengthen the economy, restore the rule of law, end corruption, and introduce a new constitution. While Sirisena formally heads the SLFP, his leadership is contested by a powerful faction led by Rajapaksa, which forms the de facto parliamentary opposition and has exploited divisions within the ruling coalition to slow the reform agenda. See Crisis Group Asia Reports N°s 286, Sri Lanka’s Transition to Nowhere, 16 May 2017; 278, Jumpstarting the Reform Process, 18 May 2016; and 272, Sri Lanka Between Elections, 12 August 2015.Hide Footnote

Sirisena had promised voters to promote post-war reconciliation by establishing a domestic accountability process for alleged war crimes. After years of Sri Lankan opposition to \UNHRC resolutions calling for investigations into rights abuses, the new government agreed in September 2015 to co-sponsor an ambitious resolution, which committed his government to creating a Truth and Reconciliation Commission (TRC), offices for missing persons and reparations and, surprisingly, a special court to prosecute violations of international law, with the involvement of foreign judges and experts.[fn]For details on Sri Lanka’s UNHRC commitments, see Crisis Group Asia Reports Sri Lanka’s Transition to Nowhere and Jumpstarting the Reform Process, op. cit. See also Crisis Group Asia Commentary, “Impunity and Justice: Why the Human Rights Council Must Stay Engaged in Sri Lanka”, 17 June 2016.Hide Footnote

Throughout the decades of violence, women in the war-ravaged north and east have had pivotal roles.

Throughout the decades of violence, women in the war-ravaged north and east have had pivotal roles, as fighters with the LTTE, activists for peace and justice, victims and survivors of atrocities and now as household heads who are trying to hold both their families and their damaged communities together. Conflict-affected women have spearheaded the demand for justice during and after the war and remain at forefront of protests in Tamil areas. The government says it is committed to addressing their demands, but its failure to do so has already stoked women’s anger and could encourage the growth of less accommodating and more conservative forms of Tamil nationalism.

This report examines the role of conflict-affected women in Sri Lanka’s fledgling but increasingly endangered transitional justice process. It explains the impact of the conflict on Tamil-speaking women in the north and east, their place in the post-war context, the pressures they face and their understanding of “transitional justice”. It explores how their conceptions of justice and accountability might be reconciled with the views of both the government and of national and international activists. Finally, it proposes how these women should be supported by Sri Lankan civil society and international donors.

For the purposes of this report, “conflict-affected women” refers principally to Tamil women living in the north and the east, although, as the report shows, Muslim women in these areas (and others throughout the country) also suffered badly.[fn]For details on the close but complicated relationship between Tamil and Muslim women in the north and east, and their divergent views on dealing with the legacy of war, see section VI.Hide Footnote Tens of thousands of Sinhalese women, in the villages bordering the north and east and throughout the south, lost husbands, brothers and sons to the long war and the left wing political uprisings of the late 1980s. They now head households, care for the disabled and face many of the same problems as Tamil women. Their needs should be integrated in programs for conflict-affected women.

Research for this report was conducted over the past year, beginning with in-depth interviews and focus group discussions with more than 60 conflict-affected women from seven districts in the north and east of Sri Lanka. In June and July 2016, interviews were conducted in Puttalam, Mannar, Jaffna, Kilinochchi, Mullaitivu, Trincomalee and Batticaloa, as national consultations on reconciliation issues got underway.[fn]The Northern Province has five districts: Jaffna, Vavuniya, Kilinochchi, Mannar and Mullaitivu. The last four compose the region known as “the Vanni”, where the fighting was most intense during the war’s final years. Trincomalee and Batticaloa are two most war-affected districts of the Eastern Province. Puttalam is in the North Western Province, where many northern Muslims relocated after being expelled by the LTTE in 1990.Hide Footnote Interviewees included community based women’s rights activists, including members of the task forces conducting the consultations. These were followed by interviews with government officials involved in transitional justice initiatives, international donors and Colombo based civil society activists and lawyers. Follow up interviews were conducted with both groups in February and June 2017 to track changes in opinions, amid the slowdown on transitional justice and rising protests in the north and east.

II. The Process so Far

The government’s commitments in the 2015 UNHRC resolution marked a sharp departure from established policy: transitional justice had not been part of any earlier peace process in Sri Lanka, and previous governments had made few efforts to address Sri Lanka’s bitter legacy of war-related abuses.[fn]For the previous government’s response to allegations and calls for international investigations see Crisis Group Reports, War Crimes in Sri Lanka, op. cit.; Sri Lanka’s Authoritarian Turn: The Need for International Action, op. cit.; and Sri Lanka’s Potemkin Peace: Democracy under Fire, op. cit.Hide Footnote The wide-ranging and contentious nature of the UNHRC agenda meant the government was certain to face significant political resistance.

Within months of taking office in 2015, President Sirisena established the Office of National Unity and Reconciliation (ONUR) to develop and implement reconciliation policies and initial “confidence-building measures” for the north and east, such as land returns, psychosocial support and livelihood programmes. In December 2015, Prime Minister Ranil Wickremesinghe established the Secretariat for Coordinating Reconciliation Mechanisms (SCRM), tasked with designing the four transitional justice mechanisms accepted at the human rights council and with coordinating other reconciliation-related policies.[fn]ONUR is headed by former president Chandrika Kumaratunga and the SCRM by a leading corporate sector figure, Mano Tittawella. The offices, set up in 2015, had few resources until mid-2016. See “Sri Lanka’s Secretariat for Coordinating Reconciliation Mechanisms gets cabinet nod for its operations”, Colombo Page (www.colombopage.com), 26 August 2016. The UN Peacebuilding Fund supports both ONUR and SCRM, including two international experts who advise SCRM and the prime minister’s working group drafting laws to establish the mechanisms.Hide Footnote

In January 2016 the prime minister appointed a Consultation Task Force (CTF), which included leading civil society activists and academics with diverse backgrounds to conduct island-wide consultations on the government’s transitional justice policy and its mechanisms.[fn]The CTF was headed by a prominent woman lawyer, Manouri Muttetuwegama, and half of its members were women. Six of the eleven members were from ethnic and religious minority groups and three from the conflict-affected areas in the north and east. See the Secretariat for Coordinating Reconciliation website (www.scrm.gov.lk/consultations) for more information and the full text of task force report.Hide Footnote Between June and September, this body and zonal task forces, comprising district-level community activists, conducted wide-ranging public consultations with input from more than 7,000 people. Since then, however, conflict-affected women have had few ways to contribute to the discussion on transitional justice, with debate restricted to the government, opposition and military, and to national and international activists.

The task force report, presented to government on 3 January 2017, provided a comprehensive overview of opinion from Sri Lankans of all backgrounds on how best to respond to its legacy of war and ethnic division. It recommended robust versions of the four proposed mechanisms and other policies to address Sri Lanka’s painful past. Instead of embracing the report as a source of useful ideas, however, government leaders either ignored it or criticised its recommendation that foreign judges be part of the special court.[fn]“Final Report of the Consultation Task Force on Reconciliation Mechanisms”, 17 November 2016. “I have no confidence in the CTF: Wijeyadasa”, Daily Mirror, 7 January 2017. Foreign ministry officials praised the report in meetings at the UNHRC and promise that it will be consulted.Hide Footnote

The government is unwilling or unable to overcome the political and administrative obstacles that stymie progress on the reparations office, truth and reconciliation commission and special court.

Eager to report progress at the June 2016 session of the UNHRC, the government had hurriedly introduced legislation to implement the first of the four promised mechanisms, the Office of Missing Persons (OMP), even before the task force began its work.[fn]The government was criticised by rights activists for presenting the missing persons bill to parliament before public consultations. According to the head of the SCRM, Mano Tittawalla, the bill was drafted based on informal government consultations with conflict-affected groups and campaigners working on the issue. Crisis Group interview, Colombo, August 2016. The government also consulted with the Tamil National Alliance (TNA), the main Tamil political party with the largest number of MPs from the conflict-affected areas, and reportedly incorporated its key recommendations in the final legislation. Crisis Group interview, M.A. Sumanthiran, Colombo, September 2016. For details, see Kishali Pinto Jayawardene, “A shameful rejection of a collective ‘mea culpa’”, The Sunday Times (Sri Lanka), 14 August 2016.Hide Footnote Despite parliamentary approval of the missing persons office in August 2016, it remains in limbo. The government is unwilling or unable to overcome the political and administrative obstacles that stymie progress on the reparations office, truth and reconciliation commission and special court.[fn]For analysis of the complex political terrain on which the government’s overlapping promises of reform are being contested, see Crisis Group Report, Sri Lanka’s Transition to Nowhere, op. cit., especially pp. 3-5 and 14-16.Hide Footnote The institutional architecture built in 2015 and 2016 is overly complex, with policy-making dispersed across the SCRM, the ONUR, the foreign ministry, prime minister’s office and president. Coordination among these government offices is poor.[fn]Civil society activists and diplomats alike complain of confusion about the roles of the various entities and offices involved in setting policy. While SCRM ostensibly “coordinates” all reconciliation policy, reports to the prime minister and works closely with the foreign ministry, ONUR falls under the president, in his capacity as minister of reconciliation. Since early 2017, government officials have privately promised a new organisational structure with greater political authority. Crisis Group interviews, Colombo, March 2017.Hide Footnote

Political considerations explain the lack of clear authority or direction from the top. Faced with widely held Sinhala nationalist beliefs, which were strengthened by the military victory over the LTTE, the government has side-lined the UNHRC agenda, treating it principally as a way to win international approval and buy time for the economic reforms it deems more important.

Riven by competing political agendas, the UNP-SLFP coalition government has developed no coherent response to charges by the “joint opposition”, led by Former President Rajapaksa, that transitional justice measures are part of a pro-separatist, anti-national conspiracy. This political opposition has encouraged resistance from the military and security-related bureaucracy, which remains unwilling to assume responsibility for wartime abuses. These officials are particularly afraid that some of them could be tried before a special court, potentially with foreign judges. Rather than respond by defending transitional justice, President Sirisena has praised the military in increasingly strong terms, promising to protect its members from prosecution.[fn]“Sri Lankan President says will not make war heroes suspects in war crime cases”, Express News Service, 29 March 2017.Hide Footnote

Given the coalition government’s waning political capital, pro-reform elements argue that it should focus on winning parliamentary approval for a new constitution. They argue that by devolving greater powers to provinces, a new constitution would respond to Tamil grievances and help prevent a return to violence.[fn]Crisis Group interview, Member of Parliamentary Steering Committee, Colombo, March 2017. Over three decades, successive Sri Lankan governments have unsuccessfully attempted constitutional reforms to devolve power to Tamil areas and to limit the executive authority of the president. Currently, despite some government references to constitutional reforms as designed to achieve the transitional justice value of “non-recurrence” of conflict, constitutional reform and transitional justice are generally treated as separate processes.Hide Footnote Reformers insist they will still move ahead with the offices of missing persons and reparations, which are less controversial than a truth and reconciliation commission and accountability court. While recent senior government appointments are encouraging, this approach will only work with a major public relations push to build popular support and regain political momentum.[fn]The newly appointed secretary to the president, Austin Fernando, is known as a proponent of reconciliation and reparations. The May 2017 cabinet reshuffle saw the pro-reform foreign minister, Mangala Samarweera, become finance and media minister, where he will be well-placed to coordinate a pro-reform public outreach campaign. The newly appointed army commander, Lieutenant General Mahesh Senanayake, is thought to be more open to security sector reform than his predecessors. “Sri Lanka appoints civil-war officer Mahesh Senanayake as its new army commander”, Press Trust of India, 4 July 2017; Crisis Group interviews, lawyers, diplomats, Colombo, July 2017.Hide Footnote

III. The Continuing Effects of the War

Nearly 500,000 people living in the Northern Province (about half of its population) were directly caught up in final months of fighting; more than 300,000 survived repeated displacement until the conflict ended on 18 May 2009.[fn]In the final weeks of war in April and May 2009, hundreds of thousands of people trapped in the fighting crossed over to military-controlled areas. They were put in buses to the northern town of Omanthai where they were strip-searched and their possessions confiscated, before they were sent to camps. During this “screening process”, people were told to surrender if they had worked for the LTTE for even one day. Hundreds of men and women did so and later disappeared. Many incidents of sexual violence and abuse were reported during this screening process. For details on the screening process, see OISL report, op cit., pp. 77-78.Hide Footnote The Eastern Province witnessed mass displacement in 2006-2007, when the army launched its final offensive against the LTTE. There are credible reports of sexual violence against many women held in internment camps in 2009 and 2010. An estimated 3,000 captured or surrendered female LTTE fighters – many of them forcibly recruited – were sent to military-run rehabilitation centres, where, again, there are credible allegations of rape and sexual abuse.[fn]See Crisis Group Report, Women’s Insecurity, op. cit., and OISL report, op. cit.Hide Footnote

Some 40,000 Tamils remain displaced, some in camps, most living with host families.[fn]Government figures from August 2016 show 43,607 people are displaced. “Replies of Sri Lanka to List of Issues and Questions in Relation to the Eighth Periodic Report of Sri Lanka to CEDAW”, UN Committee on the Elimination of Discrimination against Women, 8 February 2017. These figures do not include the more than 100,000 Tamils living as refugees in India, or northern Muslims evicted from the north by the LTTE in 1990, tens of thousands of whom remain displaced.Hide Footnote Those who returned to their land have generally lost all or most of their physical and financial assets. While exact figures are unavailable, there are an estimated 40,000 “war widows” in the Northern Province and 50,000 in the east. These figures do not appear to include wives of those missing and disappeared. According to one estimate, 58,000 households in the north, accounting for a quarter of the population, are headed by women.[fn]“Mapping of Socio-Economic Support Services to Female Headed Households in the Northern Province of Sri Lanka”, United Nations, Sri Lanka, 2015. The census department estimates 23 per cent of all Sri Lankan households are female-headed. “Household income and expenditure survey, 2012-13”, Department of Census and Statistics, June 2015.Hide Footnote

A. Psychological Toll

All the women interviewed for this report were suffering from trauma. Those who witnessed the carnage in the last stages of the conflict are particularly affected; they say their memories are “unbearable” and “painful”. Discussing what they witnessed has been fraught with danger, since their experiences run directly counter to the Sri Lankan state’s triumphalist narrative about the end of the war as a “humanitarian” achievement.[fn]Crisis Group interviews, women survivors of the last stages of the armed conflict, Mannar, Jaffna, Kilinochchi and Mullaitivu, June-July 2016. Nearly every woman interviewed broke down during the course of the interview. They noted how painful it was to remember how their loved ones had disappeared or been killed in the last stages of the conflict. Family members of disappeared said they were living in limbo, some keeping clothes and belongings of their child or spouse in the same place as at the time they left.Hide Footnote Fearing that evidence of military crimes could be collected through psychosocial work, the Rajapaksa government withdrew such services, threatening professionals engaged in it, and barred projects involving it, thus denying assistance to most survivors.[fn]For more on the obstacles to psychosocial assistance during the Rajapaksa era, see Crisis Group Report “Sri Lanka’s North II”, op cit., pp. 11-12. Assistance has since improved but is still limited. A new psychosocial training program for district-level civil servants in the north and east is due to begin later in 2017. Crisis Group interviews, psychologists, Colombo, July 2017.Hide Footnote When they spoke in detail during Crisis Group interviews, women’s emotional pain was obvious and intense.[fn]Researchers have found high-levels of mental health problems among those living in internally displaced communities in the Vanni. According to one study, 13 per cent suffer from post-traumatic stress disorder (PTSD), 49 per cent from anxiety and 42 per cent from depression. Daya Somasundaram and Sambasivamoorthy Sivayokan, “Rebuilding community resilience in a post-war context: developing insights and recommendations, a qualitative study in northern Sri Lanka”, International Journal of Mental Health Systems, vol. 7, no. 3 (2013). Daya Somasundaram, professor of psychiatry at the University of Jaffna, argues that men express trauma through addictive behaviour and women are more affected by depression. Crisis Group interview, Jaffna, September 2016.Hide Footnote

The repercussions of war are clearly visible in Tamil society in the north and the east: rates of alcoholism, drug use, suicide, domestic and societal violence have increased significantly over the past eight years.[fn]Crisis Group interview, Jaffna, September 2016. For details on physical threats women face, see “Women’s Access to Justice in the North and East of Sri Lanka”, Women’s Action Network, August 2016.Hide Footnote The trauma faced by women, particularly widows, is compounded by the added pressures of increased economic responsibilities, social stigma, patriarchal attitudes, the collapse of traditional support structures and a damaged social fabric.[fn]See Somasundaram and Sivayokan, “Rebuilding community resilience”,  op. cit., who describe this as collective trauma: “the negative consequences of mass disasters at the collective level, that is on the social processes, networks, relationships, institutions, functions, dynamics, practices, capital and resources; to the wounding and injury to the social fabric.” In the north and east of Sri Lanka, the village is a primary form of identity and one that many have lost due to displacement. This affects status and social support networks. Both former combatants and widows interviewed said that other women called them names and spoke to them in a derogatory manner. They said they had no one at home, in their families or in their neighbourhoods to speak with about these problems or any other way to get help. Crisis Group interviews, northern district, August 2016.Hide Footnote

B. Economic Insecurity

The economic situation for conflict-affected women in the north, and many in the east, is extremely difficult. Women displaced in 2008-2009 who returned to their houses in Mullaitivu, Mannar and Kilinochchi found them destroyed or looted and their livestock missing. The government’s post-war infrastructure push generated few jobs or other means to earn a livelihood.[fn]Kilinochchi, Mannar and Mullaitivu have the highest rates of female unemployment in the country. Amantha Perera, “Ex-Tamil Tigers go jobless in Sri Lanka”, IRIN (www.irinnews.org), 18 January 2016. Mannar and Mullaitivu districts have the second and third highest rates of poverty in the country, at 29 and 20 per cent of the population, respectively, with Batticaloa in the east close at 19 per cent. With the exception of Vavuniya, the other northern and eastern districts have the lowest median monthly per capita household incomes in the country, with Mullaitivu the lowest, at 4,683 Sri Lankan Rupees, or $30 per month. “Household income and expenditure survey, 2012-13”, Department of Census and Statistics, June 2015.Hide Footnote Even in households with men, women are often the principal providers, as job opportunities for men are limited, particularly for those suffering from psychological problems and/or alcoholism.[fn]Many women work as labourers gutting fish or toiling at onion and rice farms with daily wages between 5oo-1000 rupees or $3.25-$6.50, but such work is scarce and rarely continuous. Some women kept livestock or ran small shops and businesses, but they struggled to earn enough to support their families. A few worked as cleaners and domestic workers. The best paying jobs for northern women are in the military’s Civil Security Division (CSD), as teachers in its preschools and on its farms, but employees of the CSD are reportedly pressured to act as informants and subject to sexual harassment. Crisis Group interviews, northern women, 2016-2017. See also, “Mapping of socio-economic services”, op. cit.Hide Footnote

Women heading households face severe obstacles: lack of jobs, the social stigma associated with women who work outside the home, difficulty finding childcare, often incapacitating trauma, vulnerability to sexual abuse, and discrimination by employers for reasons of caste, gender, or past association with the LTTE.[fn]Crisis Group interviews, psychosocial workers at Shanthiham, Jaffna, September 2016.Hide Footnote Men and women suspected of having been LTTE cadres have the hardest time finding jobs; potential employers fear increased police and military scrutiny if they hire them:

My husband is educated but because he was in the LTTE, he can’t get a job. I was also injured so we are both dependent on others with two children. It is very difficult. We lost everything. We have no choice, we are here, we have to live now. Today, educated or not, we are like beggars.[fn]Crisis Group interview, former combatant, Batticaloa, July 2016. Discrimination and ill treatment of former combatants is very high in all north-eastern districts, and many are physically disabled. Those who were interviewed found it difficult to accept how differently they were being treated than when they were in the LTTE. On the difficulties facing female ex-combatants, see Ambika Satkunanathan, “Collaboration, suspicion and traitors: an exploratory study of intra-community relations in post-war Northern Sri Lanka”, Contemporary South Asia, vol. 24, no. 4 (2016). Hide Footnote

Thousands of women lack access to family lands and the income it could bring, either because it is occupied by the military, or because they cannot prove ownership, having lost documents when they fled their villages. Many of those who have returned to their land or resettled elsewhere struggle to find the funds to rebuild their houses. Post-war housing programs that require owners to contribute up to a third of the cost have helped push many women into debt.[fn]For a valuable study of debt and housing programs in the north and east, see “‘Life and Debt’ Assessing Indebtedness and Socio-economic Conditions of Conflict Affected Housing Beneficiaries in Jaffna, Kilinochchi and Mullaitivu Districts”, Centre for Poverty Analysis, June 2014.Hide Footnote Other families have fallen into debt simply to meet basic needs after returning home following the war with no savings and little government assistance.[fn]“I can count on my fingertips the women who are not in debt.  Most go to micro-finance companies, taking loans to repay loans”. Crisis Group interview, member of the Mahashakthi women’s organisation, Kilinochchi, June 2017. Commercial and micro finance companies promoted by the government flooded the north and east after the war. Largely unregulated, the loans have trapped many in debt. Crisis Group interviews, women borrowers, Jaffna, Mullaitivu and Trincomalee, June-August 2016. Researchers with Jaffna-based Shanthiham have established a link between debt and high suicide rates in northern Sri Lanka. Crisis Group interviews, Jaffna, March 2017. See also Meera Srinivasan, “Getting sucked into a quicksand of debt”, The Hindu, 15 July 2017. The Central Bank is currently undertaking a study of high debt levels in Northern Province. “Sri Lanka to study debt levels among N-E Tamils”, The Hindu, 19 May 2017.Hide Footnote

Economic programs from government and non-governmental groups for conflict-affected women – generally in the form of home-based income-generation schemes – have been under-resourced and lack competent needs and skills-assessments or market analysis. Women complain of not being consulted about the assistance they need, of favouritism in the selection of beneficiaries, and the lack of training and follow up. They also say that state services – when they find out about them – can be difficult to access and that they often face harassment and exploitation when seeking assistance.[fn]“They gave my neighbour 30 chickens, all died the next week, but if you go to the government agent, he will say we gave her chickens. They don’t think beyond that”, Crisis Group interview, zonal task force member, Kilinochchi, June 2017. The National Centre for Empowerment of Women Headed Households established in Kilinochchi in 2015 is widely seen as ineffective. Crisis Group interviews, women beneficiaries, Kilinochchi and Mannar, June 2017.  These and other crippling problems with government and NGO support to women-headed households are detailed in a confidential, unpublished report prepared for ONUR and the Women’s Ministry: “Gap analysis of immediate needs and existing services for female heads of households”, October 2016. See also “Mapping of socio-economic services”, op. cit.; and “Shadow report to the United Nations Committee on the Elimination of Discrimination Against Women”, Fokus Women, April 2016.Hide Footnote One activist priest argues that keeping women in poverty is “one of the strategies used by the government to distract people from demanding justice. When I am hungry I am not going to ask about justice”.[fn]Crisis Group interview, Mullaitivu, June 2017.Hide Footnote

C. Sexual Exploitation and Physical Insecurity

Women’s physical insecurity in conflict-affected areas has grown significantly. While domestic abuse and sexual violence or exploitation are problems across Sri Lanka, its higher prevalence in the north and east is a consequence of armed conflict and continued militarisation, exacerbated by the culture of sexual exploitation and harassment, intimidation and fear that now exists there.[fn]See “Sexual Exploitation of Female Heads of Households in the North of Sri Lanka’, (unpublished report), Fokus Women, Colombo, January 2016; “Women’s Access to Justice”, op. cit.; Crisis Group Report, Women’s Insecurity, op. cit.Hide Footnote

Many women interviewed described routine exploitation by men in a range of positions: state officials, non-governmental organisation (NGO) staff, workers and military personnel. In return for providing help to find their loved ones or improve their economic status, men often demand sexual favours.[fn]Crisis Group interviews, conflict-affected women in the north and east, June -August, 2016. In every district, close to half of the interviewees with disappeared family members had received calls and messages offering them information on the whereabouts of their loved ones in return for money. In some cases, women took on debt or sold their belongings to get such information. A few women said they were asked to come to military or government offices, where officials sometimes made suggestions of a sexual nature, in return for help obtaining resources such as home-building materials or the certification required for certain types of aid.  See also “Sexual Exploitation”, op. cit.Hide Footnote Women also report an increase in demand for sex work from men drawn to the provinces by post-war business opportunities. In other cases, facing physical and economic insecurity, some women heading households enter into short-term or informal sexual relationships in return for economic benefits or protection.[fn]Crisis Croup interviews, northern women, June 2017. In two cases reported to Crisis Group by the victims, women who remarried after their husbands’ disappearances had their assets and savings stolen by their new husbands. Attempts at getting justice in court were unsatisfactory. Crisis Group interviews, Jaffna and Trincomalee, June- July 2016.Hide Footnote Women interviewed spoke of military personnel frequently trying to befriend women, visiting their homes and approaching them on the streets, which left them feeling vulnerable.

Gender based and sexual violence is reportedly very high in both provinces, though there is little detailed documentation.[fn]The terms “gender-based violence”, “violence against women” and “sexual violence” are often used interchangeably. This report uses “gender-based violence” in the broad sense to mean violence directed against a person on the basis of gender, limited here to women. This includes acts that cause (or threaten to cause) physical, mental or sexual harm or suffering. It may include (non-sexual) physical assaults and economic deprivations. This report uses “sexual violence” more narrowly to mean “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting”. For the two preceding quotes and a general discussion of definitions, see “Analytical and conceptual framing of conflict-related sexual violence”, UN Action against Sexual Violence in Conflict, 12 July 2011. See also “Transitional justice and justice for sexual violence”, Consultation Task Force submission, Women’s Coalition for Disaster Management, Batticaloa, August 2016; and “Women’s Access to Justice”, op. cit.Hide Footnote Community-based activists in all seven districts where this research was conducted said they had received complaints of sexual violence, including rape. The victims were reluctant to pursue legal cases, however, fearing reprisals and stigma.[fn]Crisis Group interviews, Mullaitivu and Mannar, July 2016.Hide Footnote Activists believe the cases reported to them are only the tip of the iceberg. Women’s groups are also working on incidents of domestic sexual abuse and violence, among them a significant number of incest cases.[fn]A number of women interviewed faced severe domestic violence but, seeing no alternative, remained with their husbands. Crisis Group interviews with victims of domestic violence, Jaffna, Mullaitivu and Trincomalee, June-July 2016.Hide Footnote

Justice for sexual and gender crimes is rare: few cases are prosecuted, especially if the alleged perpetrator is in the security services, and even fewer end with convictions.[fn]In October 2015, in a landmark judgement, the Jaffna High Court found four soldiers guilty of raping two Tamil women in 2010 in Vishvamadu, Kilinochchi, sentenced them to five years rigorous imprisonment and directed them to pay compensation to the victims. This is the only case of post-war sexual violence by military personnel to go to the courts. “Military Rape Cases: No Judgement on 2001 Mannar Gang Rape: WAN”, Colombo Telegraph, 9 October 2015.Hide Footnote Court procedures are long and not gender sensitive; delays, the adversarial approach of lawyers and social stigma all combine to re-traumatise many victims and discourage others from seeking justice.

This contrasts starkly with the level of security women felt when they lived under the rule of the LTTE, which had strictly enforced prohibitions against sexual abuse. Nearly every woman interviewed for this research spoke with regret of no longer being free to walk safely at night, expressing contempt for social behaviours, such as the casual harassment of women, which they found degrading and disrespectful.[fn]Crisis Group interviews, Northern and Eastern Provinces, June-August 2016. For a useful discussion of this and its political ramifications, see Nimmi Gowrinathan and Kate Cronin-Furman, “The Forever Victims? Tamil women in post-war Sri Lanka”, City College of New York, 28 August 2015.Hide Footnote

IV. Women’s Roles in Seeking Justice

A. Conflict-Affected Women as Catalysts for Transitional Justice

Women in the north and east began mobilising in formal and informal ways during the early years of the war to challenge human rights abuses and ethnic and gender discrimination in both LTTE and government-controlled areas.[fn]For a comprehensive account women’s activism in the north and east of Sri Lanka see Shreen Abdul Saroor, Our Struggles, our Stories, (Colombo 2014) and Crisis Group Report, Women’s Insecurity, op. cit.Hide Footnote Many of these initiatives led to the formation of community-based women’s organisations that played a central role in supporting women during and after the conflict and also following the 2004 South Asian Tsunami.[fn]For example, the Mother’s Front, was started in 1984 to challenge the arbitrary arrest of young boys across the country, though it was particularly active in Jaffna. One of the founders of the University Teachers for Human Rights Jaffna, Rajani Thirananagama, killed by the LTTE in 1989 for her human rights work, also started a community-based women’s organisation, Pooreni Women’s Centre. The Mahashakthi and Yugashakthi groups operated in LTTE controlled Kilinochchi and Mullaitivu to support women’s socio-economic needs during the war and continue this work today. Mannar Women’s Development Federation, formed in 1998, is notable for bringing displaced Muslims and Tamils together. In the east of Sri Lanka, Suriya Women's Development Centre started in 1992 to help young women and girls affected by the war and is now a nationally recognised women’s organisation. The Women’s Coalition for Disaster Management, a network to support female activists, was started in 2005 after the South Asian Tsunami. The Mullaitivu Women’s Rehabilitation and Development Federation, also known as Sangami, and the Muslim Women’s Development Trust in Puttalam are newer community organisations led by Muslim women working on post-conflict reconciliation. In May 2009 leading community activists and feminists joined together to form the Muslim Tamil Women’s Network, now known as the Women’s Action Network (WAN); its work has been critical to women’s networking on transitional justice and post-conflict reconciliation.Hide Footnote This experience with grassroots organising has strengthened civil society in the north and the east, making it an important resource for the region’s recovery.

Since 2009, Tamil women in the north and east have led the national quest for truth and justice, particularly for enforced disappearances. It began informally, when mothers and wives went to military camps and stood by the roadside with pictures and placards searching for loved ones who had been detained or gone missing. In time, these women began to organise themselves at the village and district levels to visit detention centres and military camps and meet visiting political leaders about their loved ones.[fn]See Our Struggles, our Stories, op. cit., for more on this history.Hide Footnote

Conflict-affected women were also critical to the emergence of the current transitional justice process. At a time when authorities disallowed independent research, they provided testimony to national and international NGOs, despite surveillance and intimidation by the military and police. Their evidence informed key UN reports and advocacy at the UNHRC, showing that human rights violations continued despite the end of the war and helping to build the case for an international investigation. Grassroots female activists also filed court cases and organised protests demanding action by authorities on disappearances, military land seizures and sexual violence. This forced the government, which was then keen on denials and cover-ups, to respond.

Under pressure from the UN and western governments to investigate alleged war crimes, the Rajapaksa government set up a Lessons Learnt and Reconciliation Commission (LLRC) in May 2010 and established the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances (also known as the Paranagama Commission) in August 2013. Many women gave evidence to both commissions, even as national and international groups advocated boycotts, criticising their lack of independence.[fn]Many national and international groups, including Crisis Group, declined invitations to testify to the LLRC, believing it lacked independence. Despite these concerns, hundreds of conflict-affected women gave evidence to the commission. See Neloufer de Mel, “The promise of the LLRC: Women’s testimony and justice in post-war Sri Lanka”, International Centre for Ethnic Studies, February 2013; “Sri Lanka war affected women call for genuine accountability initiatives”, statement by 153 organisations, February 2015.Hide Footnote Though both issued reports that minimised military abuses and rejected charges of war crimes, the LLRC report made unexpectedly strong recommendations on enforced disappearances, offering a rare acknowledgment of the need to address women’s socio-economic needs.[fn]Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, November 2011, pp. 347-8 and p. 251. Also “The Paranagama Commission has done great damage, now that damage must be repaired”, Sri Lanka Campaign for Peace and Justice, 16 July 2016 and Neloufer de Mel, “The Promise of the LLRC”, op. cit.Hide Footnote

B. Women’s Role in Current Transitional Justice Processes

Despite the current government’s formal commitment to a victim-centred process of transitional justice, conflict-affected women generally feel undermined and sidelined. Decisions related to transitional justice are taken and announced in Colombo, with Colombo-based groups – which are not always in close contact with conflict-affected women – acting as the government’s main civil society interlocutors.[fn]Crisis Group interviews in the north and east of Sri Lanka with activists familiar with the process, July-August 2016. Only a few had been invited to participate in government consultations on the OMP, for example. The government identified one or two people from the north and the east, and the others were nominated by Colombo-based activists. Major developments were communicated to northern and eastern activists through those based in Colombo, who were invited to exclusive meetings at the SCRM.Hide Footnote The exception was the government-mandated national consultations process, where women make up at least half of each zonal task force.[fn]This appears to be the first time any government mandated body had more than 50 per cent women.Hide Footnote Female activists said they felt strengthened by their participation in these task forces and by the recognition given their community work.[fn]Crisis Group interviews with women members of the zonal task forces in all seven districts, and interviews with national level women’s rights activists, August 2016.Hide Footnote However, the government’s subsequent neglect of the report by the national CTF and the lack of any continued role for zonal task force members has left many feeling bitter.[fn]Crisis Group interviews, former members of the zonal task forces, February and June 2017.Hide Footnote With the conclusion of the CTF’s work, there are no obvious avenues for conflict-affected women to influence transitional justice policies, other than by returning to activist campaigns and advocacy.

The SCRM and ONUR have female staff and consultants, but they are for the most part Colombo-based and English- or Sinhalese-speaking. In the north and east, they are perceived as disconnected. Conflict-affected women say government officials and other staff working on transitional justice are insensitive and do not understand the complex realities of their post-conflict life.[fn]Under pressure from activists and diplomats, the reconciliation mechanisms secretariat conferred with female human rights advocates in Colombo as it hurriedly finalised legislation for the OMP in May 2016, but many of those consulted felt dissatisfied. They say they were hurried along, interrupted and sometimes escorted away. Crisis Group interviews, Mannar, Jaffna, Kilinochchi, Mullaitivu, Trincomalee and Batticaloa, June-August 2016.Hide Footnote

Draft legal frameworks for a truth commission and a reparations office are now with the prime minister, but doubts remain about whether they will adequately reflect the concerns and recommendations in the CTF’s report.[fn]Crisis Group interviews, government advisors, Colombo, and women’s rights activists, Northern Province and Colombo, July 2017.Hide Footnote Parliament will have to approve any legislation on transitional justice mechanisms, but only thirteen of its 225 members are women, including only one from a conflict-affected area. Women’s issues are not a priority for political parties in Sri Lanka. Even the Tamil National Alliance (TNA), which says it supports truth and accountability, has generally given little attention to these issues, despite having the most MPs from conflict-affected areas.[fn]This has begun to change: in response to popular support for northern women’s 2017 protests, TNA leader R. Sampanthan visited the Kilinochchi women’s protest site and pledged the party’s support for their demands. “Sampanthan meets relatives of missing persons in Kilinochchi”, Daily News, 13 July 2017. TNA parliamentarian M.A. Sumanthiran, himself aware of many issues affecting women, acknowledges the gender dimension is not regularly discussed within the party, which has very few female members. Crisis Group interview, M.A. Sumanthiran, Colombo, September 2016.Hide Footnote The Sri Lanka Muslim Congress (SLMC), the largest Muslim political party in parliament, has no official position on the transitional justice agenda. Some leaders are aware of the conflict’s impact on Muslim women in the north and east, but the party does not engage with women’s issues.[fn]Crisis Group interviews, senior leaders of the SLMC, Colombo, September 2016.Hide Footnote

Women’s ability to affect public policies has also been hampered by a lack of information from the government about its transitional justice commitments and the process underway.[fn]This remains the case even after the conclusion of the national consultations. Women seem to know more than men, though, thanks to their involvement in campaigns for the missing or community-based organisations that have received basic training on aspects of transitional justice. Crisis Group interviews, Northern Province, June 2017.Hide Footnote International donors, more than the government, have acknowledged the need for better communication with communities in the north and the east and have typically tasked Colombo-based NGOs to do this outreach.[fn]A variety of western governments are funding this work, with international transitional experts sometimes acting as resource persons for community level trainings. Crisis Group interviews, Colombo, September 2016.Hide Footnote However, many of the participants in such meetings have found the discussions overly technical and abstract. More experienced grassroots activists say the trainings are often perfunctory, as the NGOs do not allow enough time for proper discussion and on occasion conduct the meetings in English.[fn]Crisis Group interviews, activists in Jaffna and Mannar, June 2016.Hide Footnote

The promise of a formal transitional justice process has significantly changed the landscape of activism.

Interviews with female activists make clear that the promise of a formal transitional justice process has significantly changed the landscape of activism, including where discussions take place and how they are framed. Whereas during the war and the Rajapaksa years, these women worked largely independently, today new actors – the government, donors, international NGOs, Colombo-based NGOs and northern-based Tamil groups – are taking up and reframing their issues. This has raised tensions, as different groups stake out competing positions. Some civil society groups accuse each other of forcing conflict-affected women to support certain positions.[fn]Northern NGOs and Community-based Organisations (CBOs) often criticise Colombo-based NGOs for being too close to the government and uncritically endorsing its agenda. On the other hand, some Jaffna-based groups that want a purely international investigative and judicial mechanism with no local involvement reportedly pressed women to take this position during the zonal task force consultations. The popularity of this position among many, though not all, women interviewed at the time and the uniformity of the language used to express it, suggest an effective campaign. Crisis Group interviews, activists in Jaffna and Colombo, September 2016.Hide Footnote

Many are tired of fighting for justice, campaigning and repeatedly narrating their stories. Government plans, developed without their input, seem disconnected from their concerns. Their contributions – which kept the discussion alive and helped create the conditions for the wide-ranging process now underway – seem lost amid the seemingly abstract ambitions of transitional justice.

C. Ongoing Protests and a Chance for Course Correction

The lack of tangible process on many of their central concerns has disillusioned and angered victims, families and activists. “How can we not be angry”, asks one northern mother whose child is missing. “Eight years and 100 days, what have they done?”[fn]Crisis Group interview, Kilinochchi, June 2017.Hide Footnote Another adds:

Eight years we have been giving evidence to UN, police, human rights groups to get an answer for our struggle. Now after all of it didn’t work, we have decided to resort to this protest.[fn]Crisis Group interview, mother of a disappeared child, Kilinochchi, June 2017.​Hide Footnote

Making use of the increased space to protest – one of the government’s few tangible, if fragile, achievements – northern women have begun organising and demonstrating again. Since late January 2017 women have undertaken continuous public protests, fasting and sitting by the side of the road or next to military camps, demanding the government reveal the whereabouts and fate of their missing or detained relatives, and pressing for the return of military-occupied land. In the week leading up to 18 May 2017, the eighth anniversary of the war’s end, there were numerous public commemorations of those who died in the fighting.

The government has responded to the protests with a combination of disdain, reluctant and partial engagement, and intimidating surveillance. Small portions of land have been released since the start of the protests, but the bulk of it remains in military hands.[fn]The government claims 4,190 acres of private land in the north and east have been returned to owners since President Sirisena’s election in January 2015, and 24,336 acres since the end of the war, with 6,050 acres still occupied by the military. “National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21”, UNHRC, 15 June 2017.Hide Footnote Meetings promised by officials to discuss the disappeared and long-term detainees have been delayed; when finally held, they have produced no results. Police and military intelligence regularly photograph or video activists and their supporters, warning them to stop protesting.[fn]Crisis Group interviews, Northern Province, June 2017.Hide Footnote

Protests over disappearances, led almost entirely by women, are the longest running and best known. Their agenda is simple: the women want to know where their disappeared relatives are and what happened to them. They have little patience with the bureaucracy around the stalled missing person’s office.[fn]“We gave our children to you, why do we need to come and give you information?” one mother protesting in Kilinochchi said of the government. “You give us information. After you give us the names, let them open the office and operate it”. Crisis Group interview, June 2017.Hide Footnote President Sirisena finally met protest leaders in Jaffna on 12 June 2017. He read the families’ two-page letter in their presence and agreed to some demands: to release a list of all those who surrendered to or were detained by the military in the final weeks of the war, plus a list of all detainees and the location of any secret detention camps.[fn]Denying there were any secret detention sites, the president promised to instruct the National Security Council to release the lists. “President meets family members of missing persons”, President’s Media Division News (www.pmdnews.lk), 13 June 2017.Hide Footnote Similar promises have not been kept in the past, however. There is little sign the president will overcome the military’s resistance to releasing such information.[fn]In an ongoing habeas corpus case in Mullaitivu, a magistrate has ordered the army to submit a list of those who surrendered or were captured at the end of the war. Army officials now deny such a list exists, after first testifying it did. “Army goes back on its word in Court on LTTE surrendees list”, Ceylon News, 29 September 2016.Hide Footnote

Women at a protest by families of the disappeared in Vavuniya, in May 2017. Original at http://bit.ly/thedisappearedgv GROUNDVIEWS/Raisa Wickrematunge

Although they have succeeded in getting the attention of the media and government, the protestors, many of them elderly, have paid a high cost. They regularly fall ill; many sell household items or garden produce to earn the bus fare they need to attend demonstrations. The strain is fraying tempers in the group.[fn]Crisis Group interviews, family members of disappeared, Kilinochchi, June 2017.Hide Footnote These women’s willingness to risk their already precarious physical, economic and psychological well-being, however, demonstrates their determination to know the fate of their loved ones and to force the government to acknowledge its responsibility.

V. Women's Opinions on the Formal Transitional Justice Agenda

Truth and justice have been the dominant themes of the campaigns launched by women in the north and east. Yet Crisis Group’s extensive consultations point to an unsurprising, though often neglected, gap between conceptions of transitional justice among conflict-affected women and in the national and international discourse, which defines it as building formal mechanisms derived from comparative experience and used primarily by lawyers and human rights advocates.[fn]Crisis Group interviews, Northern and Eastern provinces, June-September, 2016.Hide Footnote

Nearly all women interviewed said that they wanted a holistic response, combining justice with redress for the problems they face that stem from how the conflict was fought. Transitional justice processes that are meaningful for the women affected must be accompanied, or even preceded, by policies to address social and economic injustice. This is particularly important as prospects dim for the quick establishment of formal mechanisms. While most conflict-affected women do not use the technical terminology or conceptual framework of transitional justice, they nevertheless have preferred outcomes with regard to truth seeking, prosecutions and reparations and can respond to the proposed mechanisms and core transitional justice concerns.[fn]During the initial research, conducted as national consultations were under way, Crisis Group provided a basic explanation of transitional justice and of what the government had agreed to in the UN Human Rights Council resolution. In each district, research was conducted with a civil society activist who was either on a zonal task force or had been instructed in the government’s proposals.Hide Footnote

A. Truth

Few women in the north know of government plans to set up a Truth and Reconciliation Commission (TRC) or what a TRC is. Many do know about the planned OMP, however, and insist that knowing “the truth” is an essential aspect of justice, particularly in the case of enforced disappearance. Conflict-affected women, particularly those whose loved ones were abducted or disappeared, demand to know what happened, whether their family members are still alive, and where and under what circumstances they were detained.[fn]See “Living with uncertainty: Needs of families of missing persons in Sri Lanka”, International Committee of the Red Cross, Colombo, July 2016, which reports over 30 per cent of those surveyed believe their missing relative is alive. A similar number were unsure if they were dead.Hide Footnote Nearly all want to know why family members were taken away.[fn]Families claim many of the disappeared were not associated with the LTTE. In cases where the victim had been with the LTTE or surrendered at the end of the war, their families want to know why they had not been taken into custody or a rehabilitation program. Crisis Group interviews, families of the disappeared, June 2017.Hide Footnote

Why did you kill my husband? Who gave orders? I am not a widow – I was made a widow. It was done to me, it didn’t happen.[fn]Crisis Group interview, woman whose husband was killed by the military, Mullaitivu, June 2016.Hide Footnote

I want to know what happened to my son, who took him? Who has the right to take him? He is my son, not a cow, a goat or chicken! What did my boy do?[fn]Crisis Group interview, woman whose son was forcibly recruited by the LTTE and has been missing since the end of the war, Mullaitivu, June 2016.Hide Footnote

Conflict-affected women struggle with the blanket rejection of their suffering by the military and government.[fn]They would often refer to having witnessed the crime: “I saw it with my own eyes” or “They took him in front of my eyes”. Crisis Group interviews with widows and family members of disappeared, in all districts in the north, June-August, 2016.Hide Footnote Truth-seeking endeavours could play an important role in legitimising their claims about abuses and atrocities, and creating awareness in Sri Lankan society about the toll of the conflict over decades and what those affected by the conflict see as the state’s calculated brutality. “In any truth-seeking mechanism, [the government] has to accept that this was strategically planned and executed against the Tamil people”, a Kilinochchi woman said.[fn]Crisis Group interview, woman in Kilinochchi, June 2016.Hide Footnote

B. Punishment for Military and Government Personnel

A significant majority of women interviewed for this report blamed the military and government for the abuses they had suffered and wanted them to be held accountable. Although most women did not know that the government had committed to establishing a special court, they made clear that international involvement was needed for any judicial process to be fair and effective.

Most women did not specify the type of punishment they wanted the military to face. They were not familiar with the different forms justice could take, but had no confidence they could get it in any form and feared reprisals if they asked for it.[fn]“If I ask for them to be punished, I won’t be alive. Whatever justice I can get, I want”. Crisis Group interview, woman from Mannar whose husband was abducted in a white van, June 2016. According to a mother whose son was in the LTTE, surrendered to the military in 2009 and has not been seen since: “If we seek a punishment for these people they will track us down, or other children will suffer”, Crisis Group interview, Mannar, June 2016.Hide Footnote Some believed the people responsible for abuses should be given life sentences, so they would suffer as their victims had.[fn]Crisis Group interviews, woman survivor and wife of missing person, Kilinochchi, June 2016, Muttur, July 2016.Hide Footnote Others argued that perpetrators should be punished to ensure that others would not become the victims of such crimes in the future.[fn]One woman said, “Only if there is a punishment will others learn not to do it again. If a child steals and the mother ignores it, the child will continue to steal. What will the message be to people if those that do this get away [with it]?” Crisis Group interviews, women survivors, Mullaitivu and Killinochi, June 2016.   Hide Footnote

A few women, mostly Christians, did not want those who committed abuses to be punished and were willing to grant an amnesty in exchange for public acknowledgment of their actions. They said they did not want to perpetuate the cycle of pain and suffering. In the words of one woman in Kilinochchi, “They also have families and I don’t want them to suffer like ours did”.[fn]Crisis Group interview, woman survivor, Kilinochchi, July 2016.Hide Footnote

C. Punishment for the LTTE

Tamil women in the north and east also identified the LTTE and pro-government Tamil paramilitary groups as guilty of abuses but were conflicted about seeking harsh punishment for the Tigers.[fn]On the role of Tamil paramilitaries in the government’s counter-insurgency campaign against the LTTE, see Crisis Group Asia Report N°135, Sri Lanka’s Human Rights Crisis, 14 June 2007.Hide Footnote At least half of a dozen women ex-combatants interviewed by Crisis Group said they had been forcibly recruited or coerced into joining the LTTE. Yet few were critical of the militants. Many said they benefited from being part of the group, even when fighting had left them with permanent physical impairments.[fn]Crisis Group interviews, former combatants, Mullaitivu, June 2016.Hide Footnote

Among women who had not been combatants, a majority was critical of the LTTE for forced recruitment, particularly during the conflict’s last stages. Some argued further that they held the civilian population hostage.

The LTTE also did wrong. At the end, they took off their uniforms, threw away their cyanide capsules and pretended to be married to civilians. Our people felt sorry for them and helped. If they had not mixed with the people, fewer [civilians] may have died. They lied to people till the end, saying ‘Geneva is coming to help’. They should have given people the choice [to flee to army-held territory]. We believed they would give us Tamil Eelam [homeland]. I am angry with them. What did we get, by believing them?[fn]Crisis Group interview, woman survivor, Mullaitivu, June 2016. “Geneva coming to help” is a reference to hoped-for intervention by the UN to impose a ceasefire in early 2009.Hide Footnote

The bitterness and anger was strongest amongst women whose children had been forcibly recruited by the rebels and then disappeared after the war. A few women in Jaffna and Mullaitivu also referred to the LTTE’s 1990 expulsion of Muslims from the Northern Province as a grave crime deserving punishment.[fn]On the 1990 expulsion, in which all 70,000 northern Muslims were given 24 hours to leave the province, see Crisis Group Asia Report N°134, Sri Lanka’s Muslims: Caught in the Crossfire, 29 May 2007; “The quest for redemption: the story of northern Muslims”, Law and Society Trust, November 2011.Hide Footnote

The Tamil nationalist cause, however, commands such loyalty, and the state has been seen as so hostile to ordinary Tamils, that despite acknowledging the LTTE’s abuses, most women did not want former Tigers to be punished as harshly as the government and military.[fn]The exceptions were ex-LTTE commanders Karuna and Pillaiyan, whom they saw as having betrayed and helped defeat the Tamil liberation movement. V. Muralitheran, known as Karuna, was the LTTE's eastern commander until early 2004; S. Chandrakanthan, or Pillaiyan, was his deputy. Their break from the LTTE and subsequent cooperation with the government contributed to the Tigers’ military defeat. Karuna went on to become a minister under President Rajapaksa, and Pillayan became chief minister of the Eastern Province in alliance with Rajapaksa’s party. See Crisis Group Asia Briefing N°99, Sri Lanka: A Bitter Peace, 11 January 2010.Hide Footnote For women with relatives who were in the LTTE, the prospect of prosecuting its members was especially painful.[fn]“Where did LTTE come from? They came from our wombs. Ten years later they can come from our wombs again. They were very good but at the end they shot their own people”, Crisis Group interview, woman survivor, Kilinochchi, July 2016. “I think what my father did was also not good, I remember once when I was a child, he took me on his motorbike, threw a bomb into an army camp and drove off. I was very small and didn't know what was going on. He was a loving, kind father and I got along better with him than with my mother. He was very committed, he had faith in the movement”, Crisis Group interview, activist, Jaffna, July 2016.Hide Footnote Many said the LTTE had no choice but to do what it did in the final months of fighting. In Kilinochchi, the LTTE’s former de facto capital, most women Crisis Group interviewed still identified with the movement and said its members had done nothing to deserve punishment.[fn]“Who is LTTE? We are LTTE. At the last stages, we were angry with the military, we were scared then, we didn’t like them, but we had to live so we surrendered to the military”, Crisis Group interview, woman survivor, Kilinochchi, July 2016.Hide Footnote

The government fights for money. Our people were fighting for rights. You can’t compare them. All LTTE boys were killed. They have paid the price, they were arrested, tortured for years. What price has the government paid? Nothing.[fn]Crisis Group interview with woman survivor, Kilinochchi, July 2016.Hide Footnote

D. Justice for Sexual Violence

Both the 2011 UN Secretary-General’s Panel of Experts and the 2015 the Office of the United Nations High Commissioner for Human Rights (OHCHR) investigation report documented cases of sexual violence against Tamil women that, if proven, would constitute war crimes.[fn]OISL report, op. cit., pp. 117-128; “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka”, United Nations, 31 March 2011, p. 44.Hide Footnote A number of women interviewed discussed these allegations; a few had witnessed abuses or had spoken to people who experienced them.

When we went to the military side, we were all lined up. We could hear young girls shouting ‘mother, mother, brother, brother, help me, don’t abandon me’. [After that] we saw soldiers coming out of those makeshift houses, cheering and saying, ‘Good! Good!’ Then another batch of soldiers would go in and come out.[fn]Crisis Group interview, survivor, Kilinochchi, June 2016.Hide Footnote

For this woman, echoing the sentiments of others, the highest order of punishment was needed:

Commanders ordered shells to be dropped, but rape is not like that. Even if the commander gives the order, [it is a soldier who] commits it. They need severe punishment for rape. They should be taken on to the street, shamed and then killed. That is what the LTTE would have done.[fn]Crisis Group interview, survivor, Kilinochchi, June 2016.Hide Footnote

Conflict-affected women feel strongly that the prevalence of sexual violence be acknowledged. As a violation of international law and a war crime, at least some cases of sexual violence will need to be addressed by the proposed special accountability court. An effective truth commission would also have to address it.

Dealing effectively with gender-based and sexual violence through either mechanism will require significant preparatory work to engage victims and activists. Women interviewed were clear that confidentiality was paramount and that they would be most comfortable dealing with Tamil-speaking women who would not be adversarial.[fn]Witness protection and counselling support would also need to be available, and testimonies of witnesses and activists who have worked with victims should be admissible as evidence. If financial compensation were awarded, this would have to be calculated and paid to victims without publicly identifying them or going through a continuous collection process. Crisis Group interviews, activists, Northern Province and Colombo, August 2016.Hide Footnote There are significant social challenges, however. Victims will have to overcome the stigma attached to survivors of sexual abuse and their fears of reprisal. Clear language is not often used while discussing sexual violence, even by women’s rights activists, which makes it difficult to determine responsibility.

E. “Compensation” and “Reparations”

Economic restitution and support is extremely important to conflict-affected women. Yet past government-appointed commissions, including most recently the Paranagama disappearances commission, have recommended one-off monetary compensation for families of the disappeared on terms they found unacceptable.[fn]See “Interim Report of the Presidential Commission to Investigate Into Complaints Regarding Abductions and Disappearances”, August 2015, pp. 19-20. The typical compensation amount for a death is 50,000 rupees or $325.Hide Footnote Relatives of the disappeared do not, for instance, want payment to be contingent on accepting a death certificate, saying they have not been given proof of death.[fn]Some wives of the disappeared who have sought assistance at district level offices of the central government report being pressured to accept a death certificate for their husbands and a one-time payment of 50,000 rupees.  Crisis Group interviews, Northern Province, June-July 2016.Hide Footnote

In the absence of information about their missing family members, many conflict-affected families view compensation as an attempt to buy their silence.[fn]See Living with Uncertainty, op cit., and “Report of the Consultation Task Force”, op. cit., p. 42.Hide Footnote

I don’t want compensation. I just want the pain taken away. I want my children and mother to be okay. I don’t need compensation or gifts from the government. If I can get a job, I can earn.[fn]Crisis Group interview, Mullaitivu, June 2016.Hide Footnote

Many conflict-affected women and the activists working with them underplay the need for socio-economic assistance, fearing that compensation or reparations will be used as a substitute for truth and justice. Instead of lump-sum compensation, women often prefer to ask for specific forms of financial assistance, such as housing and education grants, or start-up funds for a home business or other employment, or to replace stolen or destroyed machinery. To date, however, government and NGO programs in these areas have been haphazard and of limited reach.[fn]See section III.B.Hide Footnote Due to lack of knowledge among district-level administrators and mistrust and uncertainty among families of the missing, few “certificates of absence” have been issued, despite being designed to allow relatives of the missing to receive social welfare benefits and manage family property normally dependent on a death certificate.[fn]Since they were approved by parliament in August 2016, the government has done little to train local-level officials about the rules around certificates of absence, and their expiration after two-years limits their usefulness and causes confusion. Crisis Group interviews, lawyers and activists, Colombo, July 2017. For useful recommendations on improving certificates of absence, see “A Gendered Approach to Transitional Justice in Sri Lanka Women’s Perspectives and International Best Practice”, South Asian Centre for Legal Studies, January 2017.Hide Footnote

An effective scheme of financial restitution should begin with an acknowledgement of the financial burden women have borne because of the conflict, as detailed in section III above. A mapping exercise to determine what survivors lost in the war and their current needs is a critical first step for a coherent reparations policy and targeted assistance. Building on existing gap analyses by ONUR and others, the research should pay close attention to post-war indebtedness and the needs of those living with injuries.[fn]Two or more war-disabled women were interviewed in each district. Some received an allowance from the government, others were unaware of this entitlement. Such survivors typically have high medical costs and few ways to earn money, and said their disabilities and ongoing health problems should be addressed in any new reparations policy, including through new government housing. Crisis Group interviews, July-August 2016.Hide Footnote Government reparations policy will also need to include returning money and gold saved in LTTE-run banks seized by the government when the war ended, and the jewellery and money civilians handed over when leaving LTTE areas and entering government internment camps in 2009.[fn]Crisis Group interviews with women in Kilinochchi and Mullaitivu, June 2016. The defence ministry is reportedly developing plans to return more than $6.5 million worth of gold and jewellery seized from LTTE banks and abandoned houses at the end of the war. “Rs. 1 billion worth jewellery and gold to be returned to owners soon”, The Sunday Times (Sri Lanka), 16 April 2017.Hide Footnote

The precarious economic condition of women prevents them from effectively claiming other rights. Conflict-affected women need much greater social and economic support both as a right and to enable them to advocate for themselves in sustainable ways.

F. Memorials and Commemoration

Many women remain devastated that they have been unable to perform funeral rites for loved ones killed in the fighting. Since the government has denied that many civilians were killed and signs of support for the LTTE are illegal, survivors have been prevented from publicly mourning their dead.[fn]This extended to the private display of photos of killed LTTE fighters. As one widow in Kilinochchi explained: “The only picture I have of my husband is in an LTTE uniform. I am not allowed to keep it on display. Why can’t I show a picture of my husband? There is nothing for my children to even see what their father looked like”. Crisis Group interview, June 2016.Hide Footnote Women want to commemorate the memory of their loved ones, however, and some called for an annual day to remember all those who were killed in the fighting.

We must be able to commemorate our dead. We need to have some memorial. We didn’t bury our dead, we just left them on the roads. We had to leave the bodies back and even dogs ate them. Very few people even have photos. We couldn’t carry all those things when we left our houses.[fn]Crisis Group interview, war widow, Mannar, June 2017.Hide Footnote

After the war, the military destroyed all LTTE war memorials, including gravesites of cadres, and replaced them with large victory monuments. Most Sinhalese, and many Muslims, see the LTTE as a brutal terrorist group and supported demolition of the memorials; domestic tourists now flock to the war monuments. In the Vanni, however, nearly every family had someone in the LTTE. For them, the destruction of the burial sites is an insult to those they consider war heroes, and worse, leaves them with no public place to grieve.

There is nothing to mark the dead. We don’t have a day or a place to go to. If there is a place we can go and visit, we can cry there. My son doesn’t even have a picture of his father to see what he looked like.[fn]Crisis Group interview, war widow, Mannar, June 2017.Hide Footnote

Since the arrival of a new government in 2015, restrictions on commemorating the war dead have been relaxed in the north and east, with small public gatherings generally, but not always, allowed under close government surveillance.[fn]Police blocked an 18 May 2017 commemoration event that was going to display some 200 small stones engraved with the names of those killed in the final weeks of fighting on the nearby Mullaitivu beach. Objecting that the names might include members of the LTTE, police secured a court injunction to block the event and have subsequently investigated the organisers, including a well-known Jesuit priest, for possible terrorist offences. Crisis Group interviews, organisers, Mullaitivu, June 2017. The National Human Rights Commission wrote to the president urging him to respect the right to mourn and memorialise loss. “Ensure the right to and safety for memorialisation of war dead – HRCSL urges Sirisena”, Sri Lanka Brief (srilankabrief.org), 9 June 2017.Hide Footnote

VI. Muslim Women in the North and East

The experience of Muslim women in the north and east has been very different from that of Tamil women. Although not generally been targeted for their gender, Muslim women continue to suffer disproportionately from conflict-related crimes.[fn]Crisis Group interviews, Muslim women activists, Puttalam, June 2016, Mullaitivu, July 2016.Hide Footnote Chief among these was the LTTE’s forcible eviction of some 70,000 Muslims from the north of Sri Lanka in October 1990 – the country’s worst case of ethnic cleansing and one of the war’s most significant crimes. In the east, Muslim women suffered a range of rights violations, including sexual violence, abduction, the disappearance of family members and the loss of land.[fn]Crisis Group interviews, Muslim activists, Trincomalee, July 2016. For an overview of the experience of Muslims during the war, including their eviction from the north, see Crisis Group Report, Sri Lanka’s Muslims, op. cit.Hide Footnote

During the war, Muslims suffered primarily from abuses by the LTTE and pro-government Tamil paramilitaries; only rarely did the military or other state actors target them directly. The state has done little to facilitate the return and resettlement of Muslims to the north, however. Both those who have returned to their original land and the tens of thousands of who remain displaced face serious political and socio-economic problems.[fn]See Crisis Group Report, Sri Lanka’s Muslims, op. cit.; and “The quest for redemption”, op. cit.Hide Footnote As a result, Muslim distrust of both the state and the Tamils runs high.[fn]Crisis Group interviews, Puttalam, Mannar and Trincomale, June-July 2016. As the country’s second largest minority, making up just under 10 per cent of the population, Muslims are in a precarious political situation, viewed as traitors by many Tamils for not backing the separatist cause and mistrusted by many Sinhalese. Despite the appointment in recent years of important Muslim ministers, many Muslims, particularly from the north, believe both the government and the international community have consistently neglected their concerns. During the armed conflict, Sri Lankan Muslims experienced religious, cultural and social changes, in part because they felt the need to assert their unique identity in the face of Tamil and Sinhala nationalism. Muslims are principally Tamil speaking; what sets them apart is their religion. In recent years, their religious identity has become increasingly important and women, especially, have started to adopt dress codes that are stricter than those practiced by Sri Lankan Muslims in the past. See Crisis Group Report Sri Lanka’s Muslims, op. cit., and Mirak Raheem and Dennis McGilvray, Muslim Perspectives on the Sri Lankan Conflict, (Washington, 2007).Hide Footnote

A. Obstacles to Muslim Women’s Participation and Representation

Because Muslim women rarely get the opportunity to discuss political issues in public, their knowledge of and capacity to address questions of transitional justice is extremely limited.[fn]It was difficult to interview Muslim women and focus group discussions were with mixed gender groups. With the exception of some Muslim women activists in the zonal task forces, very few seem to have participated in previous conflict or rights related discussions.Hide Footnote Once informed about potential transitional justice processes, Muslim women are eager to engage but they are sceptical about ever receiving justice for the worst violations, which occurred decades ago. Those interviewed were unaware of how to take part or where to start:

We think Muslim issues will be neglected and only Tamil issues will come up. Muslims’ problems will be swept away. If you look at the past Muslims have always been side lined.[fn]Crisis Group interview, Muslim focus group participant, Puttalam, June 2016.Hide Footnote

B. Muslim Women’s Views on Truth, Accountability and Reparations

 For Muslim women, truth seeking means above all acknowledgement of their suffering. They want perpetrators to admit what they did, the violations to be publicised, and the government – and international actors – to recognise publicly their failure either to protect them or facilitate their return home. Muslims want their experience of conflict-related abuses and injustices to be part of the overall narrative of the Sri Lankan armed conflict:[fn]While the Sri Lankan Muslim Congress supported a truth commission during the Rajapaksa government, it has taken no official position on the current government’s transitional justice plans. Crisis Group interview, senior SLMC official, July 2017.Hide Footnote

Our story needs to come out. Our history is not known. A 25-year-old boy, how does he know what our hometown Mannar is like? Similarly, when we go back to our homes, Tamil children know nothing about Muslims. Tamil children need to know what happened and that the north is our home too.[fn]Crisis Group interview, displaced Muslim woman, Puttalam, June 2016.Hide Footnote

Many northern Muslims support prosecuting any remaining LTTE leaders for their 1990 eviction, though some are willing to consider amnesty if the perpetrators acknowledge their crimes. Muslims in the east want justice both for targeted killings and abductions and for the 1990 LTTE mosque massacres in Kattankuddy and Eravur.[fn]See Crisis Group Report Sri Lanka’s Muslims, op. cit., p. 7.Hide Footnote Many support a separate criminal justice mechanism for crimes against Muslims.[fn]In all the Crisis Group focus group discussions Muslims, including those in the east, were very clear about this.Hide Footnote In contrast to most Tamils, many Muslims oppose international involvement in transitional justice. While they lack confidence in the Sri Lankan state, they feel even more strongly that the international community is biased against them.[fn]“All these years when Muslims suffered, the international community just watched, so how can we expect justice from them?” Crisis Group focus group discussion participant, Kinniya, July 2016.Hide Footnote

Northern Muslims call for public memorialisation of their eviction, including a specific day of remembrance. They also want to place monuments and build a museum to record the circumstances of their expulsion and provide details about their former way of life, including social, cultural and religious practices that have since been lost. Both northern and eastern Muslims strongly support economic reparations. Those in the north want compensation for their loss of land and livelihoods and resettlement assistance, including support both for those who return and those who choose to remain where they are. Tensions are high between Tamils and returning Muslims, who complain that district-level Tamil bureaucrats discriminate against them as they compete for scarce land, resources and jobs.[fn]Muslims regularly complain that local-level Tamil civil servants refuse to provide Muslims with assistance to which they are entitled and that Muslims who work in public administration fail to get promoted. Many returning Muslims have trouble receiving state services or claiming voting rights as they make the transition back to their original land. Crisis Group interviews, Mannar, Puttalam and Mullaitivu, June 2016.Hide Footnote

Many of those who resettled in Puttalam had to abandon traditional forms of livelihood while confronting increased religious and cultural pressures.[fn]In the north, their language was solely Tamil and their culture Tamil-influenced. The move to Puttalam, parts of which are Sinhala speaking, brought many social and cultural changes. Women said that they came under pressure to cover their heads and observe strict Islamic dress codes, which they had not experienced in the north. Fear for the security of girls in Internally Displaced Persons camps meant that many families gave their daughters in marriage in their early teens. Crisis Group interviews, Mannar, Puttalam and Mullaitivu, June 2016. See also “The quest for redemption”, op. cit.Hide Footnote But those who return to their native villages in the north now face additional socio-economic problems, especially in Mannar, where both housing and opportunities to earn income are scarce.[fn]Northern Muslims families have grown much larger in the decades since they were displaced. They return to homes and landholdings that are now too small to shelter or support their families. These are problems that cannot be addressed in the absence of a return policy. Crisis Group interviews, displaced Muslims, Puttalam, June 2016.Hide Footnote Families have been divided. Those returning to their original homes are mostly men who leave their wives behind in Puttalam. Some take second wives, neglecting or abandoning the other family. Activists working among Muslims report a significant increase in child abuse, including sexual abuse, though there is pressure not to publicise these cases. Muslim women facing family difficulties, including domestic and sexual violence, have little access to justice. The rulings of all-male Qazi courts (governed by Muslim personal law) are rarely favourable to women.[fn]Muslim women activists have campaigned strongly for changes to the Muslim Marriage and Divorce Act and to eliminate the constitutional provision that accords primacy to religious family law over guarantees of equal protection. See Hyshyama Hamin and Hasanah Cegu Isadeen, “Unequal Citizens: Muslim Women's Struggle for Justice and Equality in Sri Lanka”, October 2016; and P. K. Balachandran, “Sri Lanka Muslim women pin hopes on new constitution to raise minimum age of marriage for girls”, New Indian Express, 16 October 2016.Hide Footnote

VII. Conclusion: From Action Plans to Action

The ambitious transitional justice process promised by the government in Geneva has stalled. The enormous challenge of setting up four complex institutions in a short time was made even more difficult by the early focus on its most controversial aspect – a special accountability court with foreign judges – and the lack of public support from the president, prime minister or either of their parties. Planned largely in secret, and negotiated in western capitals, “transitional justice” has appeared as a technical, abstract and alien discourse, further obscuring the practical ways it could address people’s needs and how much the government could already be doing.

The injustices women have experienced and the pressures they continue to face are at the intersection of Sri Lanka’s most important post-war challenges and require urgent attention. Addressing these issues skillfully could reinvigorate the larger justice agenda and reaffirm that positive change is still possible. Several steps are especially important:

First, although families of the disappeared currently evince little interest in the OMP, it would be the most systematic way to address the needs of relatives of the disappeared. It must be provided with sufficient resources and include branches in the north and east that are staffed with local personnel, as the families prefer. The office should not function, however, as a substitute for credible police investigations into cases of enforced disappearances where evidence exists.

Second, an office of reparations should be created to coordinate efforts to address the needs of conflict-affected women. In principle, this could be done through existing government programs. Myriad government action plans and scant effective action, however, suggest the need for a powerful body authorised to monitor the efforts of different ministries, guided by a clear purpose and enjoying both adequate resources and top-level political support.[fn]In exchanges with the UN, the government has acknowledged many of the severe problems faced by conflict-affected women and the inadequacy of its response to date. As part of various UN processes – especially the 2017 review by the Committee on the Elimination of Discrimination against Women – the government has prepared multiple, overlapping “action plans”: a “Policy Framework and National Plan of Action to Address Sexual and Gender-based Violence in Sri Lanka 2016-2020”, was prepared by the Ministry of Women and Child Affairs with assistance from the UN Development Programme and approved by cabinet on 7 June 2016; the National Action Plan on Women Headed Households 2017- 2019 is being finalised by the women’s ministry; the National Human Rights Action Plan, with a chapter on women’s rights, is being prepared for submission to the Universal Periodic Review at the UNHRC in November 2017.Hide Footnote An office of reparations could fill that role.

To that end, the government should invite public feedback on the draft reparations law already prepared for the prime minister. This should be shared widely, along with findings by the CTF on reparations. The government also should make a major effort to win support from Sinhalese and Muslims by explaining the benefits of the new office for all those affected by the war, not just Tamils in the north and east.[fn]Thousands of Muslim and Sinhala women living in the North Central and North Western Provinces, for instance, suffered from multiple displacement, loss of livelihoods, sexual violence, widowhood and other negative effects of the war, and would benefit from being included in government and donor programming for conflict-affected women. On the difficulties facing widows of soldiers, see “Living in Shadow: Status of Military Widows in Sri Lanka”, Fokus Women, March 2016.Hide Footnote

The reparations office, supported by Sri Lanka’s international partners, should then take the following steps to improve daily lives, reduce the appeal of renewed militancy and help repair the frayed social fabric in conflict-affected regions:

  • Develop a more generous and coherent system of socio-economic support for conflict-affected women, especially heads of household, with interventions targeted according to their needs and skills and current market conditions. A single equitable pension system should be established for all dependents of men killed in the conflict, whether civilian, LTTE fighter or military personnel. Rules preventing widows gaining ownership or tenancy of land should be amended, as promised by the government.[fn]The government has reported to the UN its intention to amend the Land Development Ordinance to eliminate gender discrimination in relation to succession, inheritance and joint ownership. “Additional Written Information by Sri Lanka to the Questions Raised during the 8th Periodic Review of CEDAW”, UN Committee on the Elimination of Discrimination against Women, 22 February 2017.Hide Footnote Reparations policies ought to be informed by a broad assessment of the economic needs and resources of those most directly conflict-affected.
     
  • Enable quick, easy replacement of documentation for lost or destroyed birth certificates, national IDs and land records, so that affected citizens can access government services. The government should better inform district administrators and families about the advantages of obtaining certificates of absence, while addressing the sources of families’ mistrust.
     
  • Conduct a full mapping of all remaining military-held land in the north east and design a system to compensate owners fairly for past occupation of land.
     
  • Provide improved psychosocial support, through increased training of government officials and strengthening the existing network of government and NGO practitioners.
     
  • Acknowledge the right of all citizens – including family of former LTTE members – to commemorate their dead and encourage community-based memorialisation projects by women in all parts of the country.

To create a conducive environment for these efforts in the north and east, the military should further reduce its involvement in civilian life. This would entail ending intimidating surveillance and threats, especially of ex-combatants; expediting the return of military-occupied private land; and beginning the process of closing or transferring to civilian control military-run farms, shops and hotels.

International donors will have to examine their own programming critically. A thorough collective evaluation of livelihood assistance provided so far could help donors develop shared protocols and monitoring to avoid repeating the failures of past programming or contributing to high levels of indebtedness in the north and east. The UN and donors should review their Peacebuilding Priority Plan to respond better to the current, more difficult political context and to new government programs.

Equally essential are government initiatives to reduce sexual exploitation and violence against women in the north and east. For military and government offices, this means enforcing strict codes of conduct. For the police, it means training and deploying more Tamil-speaking and female police officers plus establishing dedicated units in the north and east to investigate gender-based crimes, which should work closely with a sexual crimes unit in the attorney general’s department.[fn]The draft National Human Rights Action Plan recommends establishing a special unit of attorney general’s department to expedite the prosecution of cases of sexual violence.Hide Footnote The government should also consider creating a special division of the high court to handle sexual crimes against women, supported by an independent unit to protect victims and witnesses.[fn]Special divisions or chambers of the high court already exist for other issues – for commercial cases and to expedite cases under anti-terrorism laws. Establishing a sexual and gender crimes division would take time and require extensive training of judges and staff.Hide Footnote

The government must directly engage women and other survivors, rather than relying on intermediaries or ignoring grassroots opinions.

Finally, while planning and implementing these national reconciliation and reparations policies, the government must directly engage women and other survivors, rather than relying on intermediaries or ignoring grassroots opinions. Donors should consider providing financial support to community- and district-level women’s groups, including female members of the zonal task forces, all of whom constitute a vital social resource.

Civil society in all its variants – northern, eastern and southern, grassroots and Tamil-speaking or Colombo-based – inevitably will play a part in the transitional justice and reconciliation processes. To be effective and coherent, these efforts should be guided by the concerns of conflict-affected women themselves. Colombo-based civil society groups must strengthen their connections with families in the north and east, while Tamil activists must reach out to conflict-affected Muslims and Sinhalese and work to see that their experience of the conflict is acknowledged and their needs and rights addressed, too.

The past two years have seen the government’s promises of a comprehensive transitional justice process grow increasingly threadbare. Survivors and victims, who have waited painfully long for justice and relief, are increasingly desperate. To avoid losing this historic opportunity to right past wrongs and build lasting peace, the government must finally start to fulfil its promises, beginning with policies that address the needs of conflict-affected women.

Colombo/Brussels, 28 July 2017

Appendix A: Map of Sri Lanka