By Jehan Perera –
The government took a major step forward in rejoining the international community on equal terms when it reached agreement with the United States and other Western countries in the UN Human Rights Council to co-sponsor the resolution on the future its post-war accountability process. For the past six years Sri Lanka was on the defensive internationally for its conduct of the last phase of the war. From 2012 onwards it was at the receiving end of increasingly adverse resolutions by the UN Human Rights Council. The resolution in 2014 mandated an international investigation into the past. Each year the meetings of the UN Human Rights Council in Geneva became the occasion of confrontation abroad and for political mobilization within the country in which ethnic nationalism took the centre stage.
The new government’s agreement with the United States to co-sponsor the draft resolution that will be presented to the UN Human Rights Council on Wednesday is an indication that both sides sat together to sort out the problem. Unlike its predecessor the present government has acted on the rational basis that a policy of confrontation would not solve the problem but only aggravate it. Although the confrontational approach of the previous government was popular at home it was leading to an internationally imposed outcome which would have made a bad situation worse. The government’s problem solving approach enabled it to convince the United States, and other Western countries, to drop the specific reference to a hybrid judicial mechanism. This was the most controversial feature of the UN Human Rights High Commissioner’s report on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka.
The latest draft resolution of the UN Human Rights Council on promoting reconciliation, accountability and human rights in Sri Lanka affirms “the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.” This was in contrast to the UN Human Rights High Commissioner’s Report that called for a hybrid judicial mechanism with the participation of international judges, lawyers, prosecutors and investigators to ensure the credibility of the accountability process. The replacement of the emphasis given to the hybrid judicial mechanism and its replacement with a Sri Lankan judicial mechanism would give the Sri Lankan government a greater measure of credibility in dealing with the nationalist sentiment within the country.
The government is preparing to meet the political challenge that it expects from the opposition with regard to the compromises it is making in Geneva. Having dealt with the problem in Geneva, the government is now moving towards protecting itself politically within the country. It is aware that it is sitting on top of a volcano of ethnic nationalism. This is the same volcano that created the background for the assassination of Prime Minister SWRD Bandaranaike in 1957 when he tried to allay Tamil nationalism by conceding language and devolution rights to the people of the Northern and Eastern provinces, to the uprising of the JVP in 1987 when President JR Jayewardene signed the Indo Lanka Peace Accord to bring an end to the Tamil uprising by conceding devolution of power, and to the downfall of the UNP government in 2004 headed by Prime Minister Ranil Wickremesinghe when he tried to have a negotiated political settlement with the LTTE through the Norwegian facilitated ceasefire.
Over the weekend the newly appointed Minister of National Dialogue Mano Ganesan called two meetings, one each with heads of media organizations and another with civil society activists to discuss the forthcoming Geneva resolution and how best to take its message to the general population. The meetings were chaired by Prime Minister Wickremesinghe who pointed out that the Geneva resolution that the government was co-sponsoring was not only about a probe into war crimes allegations, but was also about restoring democracy and bringing national reconciliation. He explained that the judicial mechanism for accountability would be one that was Sri Lankan and approved by Parliament.
At the civil society meeting, he indicated that the presence of international legal personnel in this judicial mechanism would not be as mere tokens. He pointed out that Sri Lankan judges held high positions in courts in foreign countries and it could be the other way round too, especially in cases where the local expertise was either lacking or needed to be supplemented. Such an international presence is expected by the Tamil polity which has no faith in the Sri Lankan judicial process in relation to issues of the war and the conduct of the Sri Lankan military during the war and its aftermath. This would also be the position of international human rights groups and many foreign governments.
However, the involvement of international judges and legal personnel in the judicial accountability process in which the leaders of the former government and military are implicated will provide a political rallying point to Sinhalese nationalist leaders. The former leaders of the government who gave leadership to the war effort that saw the final victory over the LTTE and the military that made it possible have been widely perceived by the Sinhalese polity to be war heroes. There is little or no desire on the part of the ethnic majority Sinhalese population to see them differently. So far the news media appears to be cooperating with the government in downplaying the compromises made in Geneva and the implications for the country. The voice of the nationalists within the opposition has not been receiving the high levels of publicity that they received during the period of the previous government. But this is likely to change after the resolution in Geneva is passed with the Sri Lankan government co-sponsoring it, and the time for implementation begins.
Prime Minister Wickremesinghe appears to have taken note of the lessons of the past. During the abortive 2002-2004 peace process he and his government confronted the then president Chandrika Kumaratunga who undermined him. On this occasion the Prime Minister is working closely with President Maithripala Sirisena who has the credibility to give him covering support against Sinhalese nationalism. During the 2002-2004 peace process, the government did not actively engage with civil society in taking positive messages of the peace process to the people. The early meeting that the Prime Minister chaired with civil society groups indicates that he appreciates the role that civil society played in advocating the cause of good governance during the presidential and general elections earlier in the year. In a democracy unless there is popular understanding and acceptance of the need for reform it is unlikely to be successful. Sri Lankan civil society organizations have a track record in taking advocacy and educational messages to the general population.
It is significant that the draft resolution recognizes the need for a process of accountability and reconciliation for violations and abuses, including those committed by the LTTE as highlighted in the UN report. The Sinhalese people need to know that the accountability process is meant for all who violated human rights and committed war crimes, and is not targeted only against the government. Action against financiers and other international operatives and agencies will be an integral part of the criminal investigation that the UN High Commissioner’s report has proposed through the recommended involvement of international personnel in the accountability process. At the same time, it is also necessary for the government not to lose sight of the concerns of the Tamil population on the ground. They may not need to be convinced of the merits of having an international component in the Sri Lankan judicial mechanism to ensure accountability. However, their interest in a swift return to normalcy needs to be taken into account. The needs of the war-affected people of the North and East are urgent ones. The government has announced a mechanism to deal with the past that will be based on a fourfold system which will include a Commission for Truth, Justice, Reconciliation, an Office of Missing Persons, a judicial mechanism with special counsel to be set up by statute and an Office of Reparations.
As initial confidence building gestures, the government can have a prison census and people find their missing ones so that no one gets lost in the system, either deliberately or inadvertently. It can also speed up release of persons detained under the Prevention of Terrorism Act without charge and also the release of land taken over during the war back to the people. There is also a need to assist displaced persons who still number in the tens of thousands to resettle in their original places if that is what they want. This is a problem that continues to affect a large proportion of the 90,000 strong Northern Muslim community who were forcibly evicted from their homes in the North by the LTTE in one of the war crimes that took place during the course of the war. The benefits of the transitional justice process will be applicable to all communities, as will accountability. Many of the necessary actions do not need any new mechanism but the political will of the government.