Increased prospects for Transitional Justice after the political transition in Sri Lanka?

Since the end of the Sri Lankan armed conflict in which the Liberation Tigers of Tamil Eelam (LTTE) were destroyed by the Sri Lankan armed forces in 2009, Sri Lanka was the archetype of a hard case for Transitional Justice. The Sri Lankan government of President Mahinda Rajapaksa adopted a completely intransigent posture by failing to credibly investigate the past. Instead, it set up flawed mechanisms resembling truth commissions in an attempt to ease international pressure on accountability. Unsurprisingly, these commissions largely exonerated the government of any systematic wrongdoing. In addition, the government brutally suppressed dissent, presided over the persecution of the Tamil and Muslim minorities and attacked local human rights activists who cooperated with UN mechanisms.

In this context, human rights campaigners within the country turned to the international community. In 2010, the UN Secretary General mandated a Panel of Experts (POE) to advise him on accountability in Sri Lanka. The Panel looked into allegations of international law levelled against both sides during the final phases of the armed conflict and found credible allegations of a wide range of violations of human rights and humanitarian law by both sides, some of which amounted to war crimes and crimes against humanity. Amid growing calls for further international action, the UN Human Rights Council took the significant step in Mach 2014 of mandating an OHCHR investigation into these violations. Despite these developments, prospects for international justice for human rights abuses and related crimes that took place during the war remained slim. Indeed, China and Russia’s strong support for the Rajapaksa regime appeared to preclude the prospect of a referral by the UN Security Council to the Prosecutor of the ICC. Even at the UN Human Rights Council which mandated the ongoing investigation, there was only limited support for decisive international action on Sri Lanka.

On January 8, against all odds, the Sri Lankan President Mahinda Rajapaksa was unseated by his former Minister of Health Maithipala Sirisena, who managed to rally a wide array of political parties around the defense of rule of law, transparency and democratic values. However, no consensus on post-war justice was found within this broad ad hoc alliance. While there is enthusiastic support for robust international action on accountability within the minority Tamil community which bore the brunt of the war, representatives of the majority Sinhalese community—about 80 percent of the country’s population—are mostly opposed to international trials. This explains why Sirisena—who needed a substantial if not majority share of the Sinhalese vote to secure victory at the presidential elections—vowed to protect all citizens from international tribunals. Nevertheless, during the campaign, the Sirisena camp indicated that issues of accountability for alleged war crimes will be dealt with domestically and hinted vaguely at the need for truth commissions, apologies and forgiveness.

Shortly after the elections, one of Sirisena’s closest associates conceded the possibility of domestic prosecutions, by referencing the alleged execution of surrendering LTTE leaders and stating that “if accepted international laws are violated—like shooting people with white flags, killing those who surrendered—they will be punished, because you cannot kill those who have surrendered”. The statement is one of the early indications that influential sections within the new government may not be averse to some domestic prosecutions as part of its approach to dealing with allegations of international crimes.

How far the new government will be willing to advance a transitional justice agenda will depend on a range of political factors, including the government’s ability to ensure political stability in the coming months. Fundamentally however, progress on accountability domestically will also depend on the international community’s willingness to exert sustained pressure on the new regime. While the international community will be understandably reticent to force the hand of a fragile democratic government to take actions that are potentially unpopular at home, it must remind the government that a sequenced approached to transitional justice is essential to strengthening democracy in the long run. Finally, prospects for domestic prosecutions will also depend on Tamil leaders’ willingness in negotiations with the government to prioritize accountability vis-à-vis political devolution, improvement of the human rights situation in Tamil areas and demilitarization of the Northern and Eastern Provinces.

The challenge for the OHCHR Investigation on Sri Lanka (OISL) and its high level panel of advisors will be to weigh in on these knotty political questions, using the opportunity provided by the investigation. The framing of OISL recommendations should be aimed at maintaining diplomatic pressure on the Sri Lankan government to break with the past. This will require that the new government improves the human rights situation throughout the country, and implements credible and comprehensive Transitional Justice measures in line with international standards. The UN must continue to monitor progress made by the Sri Lankan government in these areas, and offer technical support where necessary. At the same time, recommendations must also be framed in a way that increases the likelihood of government buy in, and is attractive to at least a liberal section of the Sinhalese community. In this respect, the UN must continue to address the former government’s repression of Sinhalese dissidents, and urge the need for introspection within the Tamil community with respect to crimes committed by the LTTE. It may, for instance, welcome statements by Tamil political leaders expressing a willingness to do so and urge members of the Tamil diaspora to follow suit.

Sri Lanka is now poised to become the next interesting case for those interested in the interplay between the international and the domestic in Transitional Justice. Of particular interest will be whether the international community will be able to generate the kind of nuanced and sustained pressure necessary to ensure that the new government embarks on an acceptable Transitional Justice process; the kind of process that manages the risks of jeopardizing the fragile transition on the one hand and continued impunity on the other.

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