Sri Lanka’s Long Road to Reform

icgResolution 30/1, adopted in October, was a major achievement for the United Nations Human Rights Council – and an important milestone in Sri Lanka’s journey toward lasting peace and a just settlement of its decades-old ethnic conflict. Following years of bitter resistance by the previous Sri Lankan government to international efforts to encourage post-war reconciliation and accountability, the new government led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe displayed admirable political courage in negotiating a consensus resolution containing many of the elements needed for a sustainable peace.

However, Sri Lanka today is not yet the success story that many in the international community claim it to be. Progress on implementing the Council resolution has been slow and often grudging, and there are growing doubts about the government’s political will and ability to see the complex process through. For Sri Lanka to stay on the path toward recovery, it needs sustained international support and engagement.

Speaking at this critical juncture, High Commissioner for Human Rights Zeid Ra’ad Al Hussein this week encouraged the government to prepare a comprehensive strategy on transitional justice with “inclusive and meaningful engagement from all Sri Lankans”. As Zeid prepares to report to the Council on 29 June on progress toward implementation of the resolution, member states should send strong public and private messages to the Sri Lankan government, offering financial, capacity-building and other tangible support for its efforts – as well as clear suggestions for improvement.

The Reform Agenda

The government has adopted an ambitious reform agenda to address the many challenges the country faces: keeping a beleaguered economy afloat, strengthening the rule of law, tackling corruption, drafting a new constitution, promoting reconciliation efforts with the Tamil population in the north and east, and establishing a multi-pronged set of transitional justice mechanisms agreed with the council.

Unfortunately, the entire programme risks collapse unless new energy, focus and resources are brought to bear. A weakening economy and slow going on most other fronts have led to waning support from the key constituencies that brought the government to power – Tamils, Muslims and reform-minded Sinhalese. Belief in the possibility of meaningful progress is fading across the board.

Efforts of the national unity government – a coalition between President Sirisena’s Sri Lanka Freedom Party (SLFP) and Prime Minister Wickremesinghe’s United National Party (UNP) – have been weakened by a variety of factors. First, the government lacks technical capacity and trained personnel on key issues. Second, there is no unified strategy for advancing reforms – with the SLFP split between Sirisena’s wing and supporters of ex-President Mahinda Rajapaksa, and often at odds with the UNP, particularly on economic policy. Third, the administration has not mounted a coherent public relations campaign to sell its successes and build support for the more politically controversial aspects of its programme, including transitional justice.

The most critical element of the reform agenda is how to tackle the entrenched culture of impunity, which has fed multiple bloody insurgencies over the past 40 years. Sri Lanka must seize this narrow window of opportunity to address the problem. Failure to succeed in this effort will undermine virtually all the other reforms the government says it wants to achieve. Progress toward ending impunity is essential to re-establishing the rule of law for all ethnic communities, reasserting civilian control over the military and building the trust needed for a lasting political solution.

Notable progress has been made toward a new constitution, as parliament has begun to meet as a constitutional assembly. The report of the Public Representations Committee, tasked with gathering ideas from the public, was issued at the end of May. It endorsed a range of bold reforms, including the incorporation of a bill of rights. The committee failed to reach agreement, however, on expanded devolution of power for Tamil-majority regions in the north and east, a key issue noted in the Council resolution. With parliamentary consensus likely to fall well short of long-standing Tamil demands for federalism and national self-determination, the government and the Tamil National Alliance (TNA) could face a major challenge in winning Tamil backing in the referendum needed to approve the new constitution, with the pro-engagement leadership of the TNA weakened as a result.

Transitional Justice

Sri Lanka has made only halting efforts toward developing the four transitional justice mechanisms pledged to the Council – a truth commission, reparations and missing persons offices and, most controversially, an independent special court for war crimes with international participation. The national unity government should be encouraged to design and sell its Council-mandated transitional justice efforts as part and parcel of its larger agenda to promote “good governance” and the rule of law, which has widespread public backing in all communities. Meanwhile, donors should deepen their support – through training, equipment and personnel – to build the Sri Lankan state’s capacity to establish effective justice mechanisms, strengthen criminal investigations and improve witness protection.

In advance of this month’s council sessions, the government has scrambled to finalise a package of reforms it can present as evidence of progress. At the top of the list is the Office of Missing Persons, legislation for which was approved by the cabinet on 24 May and is expected to be presented to parliament in the coming days. While the proposed office would likely help thousands of families seeking information about their loved ones who went missing during the civil war, it has been criticised for lacking any effective link to criminal investigations and thereby potentially maintaining impunity for large-scale enforced disappearances. The government has also been criticised for its hurried and minimal consultation with victims’ families prior to finalising the proposed legislation. Council members should encourage the government to submit the draft bill, prior to parliamentary approval, to the national consultations process that is due to get underway by the end of June – both to improve the quality of the legislation and to win back flagging confidence among victims’ groups and civil society.

The government’s recent ratification, in May, of the UN Convention on Disappearances is a welcome move. Incorporating the treaty in domestic legislation, as promised to the Council, will be even more significant. These steps will mean very little, however, if the government remains unable or unwilling to prosecute cases of abduction and murder, particularly those for which they already have substantial evidence.

Council members and the High Commissioner should press the government to follow through on its commitment to meaningful forms of international participation on the proposed special court for war crimes. The Council resolution specifies the importance of including “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators” in a Sri Lankan judicial mechanism. Under domestic pressure, the president and prime minister backed away from promises to the UN and announced there will be no foreign judges. Given the decades-long failures of government commissions and judicial processes, international participation is essential to the credibility and effectiveness of the special court. Council members should insist that the government holds the line on the involvement of international judges, at least in observer roles, and devises concrete plans for outside experts to be included in investigations, prosecutions, forensics and witness protection.

Prosecution of military personnel, particularly with foreign legal involvement, was always sure to be the most controversial aspect of transitional justice for many Sinhalese. There needs to be a clear strategy to address Sinhala nationalist resistance, including by actively promoting the benefits of transitional justice for all communities. Instead, the president, prime minister and other key officials have regularly retreated when criticised by Rajapaksa and his nationalist supporters.

Even the most optimistic assessments of the government’s transitional justice policies suggest the government intends to postpone any moves to establish the promised special court until after March 2017, when the High Commissioner is due to issue his final report on implementation of the Council’s 2015 resolution. While justice for crimes committed by both sides during the war will necessarily take a long time to achieve, further delays in even initiating the process will only confirm suspicions that the government is merely buying time until the international community loses interest.

Council members should press the government to begin building the legal, institutional and staffing capacity needed for all the promised transitional justice mechanisms. The High Commissioner should insist that legislation needed to establish these mechanisms must be on the books by March 2017, in advance of that month’s Human Rights Council session. These measures should include legislation to criminalise war crimes and crimes against humanity, and to establish command responsibility as a mode of criminal liability.

Rule of Law and Anti-Corruption

Confidence is faltering in the government’s commitment to restore the rule of law, a pledge that was central to the January 2015 election of Sirisena. Investigating complex financial crimes and political killings under the former regime is undoubtedly a slow, difficult and dangerous work. The challenges are made more acute by the involvement of key figures from the old regime still serving as ministers, bureaucrats and law enforcement officials, some of whom are known to be actively obstructing progress. There is increasing evidence that senior officials in the Attorney-General’s department and in the military have blocked important criminal investigations.

The government must take steps to dismiss or discipline obstructionists. Officials who lobbied to undermine UN efforts to support justice and accountability under the Rajapaksa regime should also be removed from policymaking positions. In order to address long-criticised conflicts of interest in the Attorney-General’s department, it is necessary to establish a permanent, independent special prosecutor for serious human rights cases in which state officials are alleged perpetrators.

Meanwhile, credible reports indicate that witnesses in criminal cases implicating the security forces are facing serious threats. The government has yet to establish an effective witness protection program or revise its weak witness protection law, in compliance with a clause in last year’s Council resolution promising to do so.

Progress on key criminal cases is needed to reverse the growing sense that the national unity government is not substantially different from previous corrupt and inefficient governments. Progress on less politically controversial cases is also essential to rebuild confidence that the government is willing to tackle impunity and can establish a credible process of accountability for war-related crimes.

Adoption of some important legal and institutional reforms is said to be very close – including legislation to replace the repressive Prevention of Terrorism Act (PTA) with new laws consistent with human rights standards, as required by the Council resolution. However, recent arrests under the PTA have violated due process and reawakened fears of a return to “white van” abductions, which were a primary means for hundreds of enforced disappearances under the Rajapaksa government. Detainees are still being held under the sweeping provisions of the law.

Council members need to press the Sri Lankan government to end abuses by the Terrorism Investigation Division of the police (TID), which continues to detain suspects without charge, often in aggressive and humiliating ways. TID must be made to follow established procedures – recently reiterated by Sri Lanka’s Human Rights Commission – on detentions, and personnel suspected of involvement in serious abuses must be suspended, investigated and prosecuted. The government should not wait for repeal of the PTA and the establishment of a new system before acting to end current violations.

Confidence Building and Military Reform

On ethnic issues and the legacy of the war, the president and other senior officials have set a more conciliatory tone – seen most recently in the much less triumphalist commemoration of the seventh anniversary of the end of the civil war. Nonetheless, the past six months have seen very little progress on the key issues of concern to Tamils in the north and east – concerns reflected in the text of last year’s Council resolution: the release of hundreds of detainees held under the PTA, the return of land held by the military, investigations into the tens of thousands of forcibly disappeared people, and the removal of the military from civilian affairs in the north and east. Indeed, progress has been so slow and grudging that what were intended to be confidence-building measures have become confidence-weakening measures.

Trust in the government’s good intentions has also been damaged by the tight and often intimidating surveillance of Tamil civil society activists by military and police, and by unwarranted arrests. The president and prime minister appear wary of asserting their authority over the military, and there has been little movement toward developing a longer-term plan for security sector reform. The inability to gain effective civilian control over the military is one factor behind the government’s slow implementation of its other Council commitments. This in turn undermines public confidence, especially among Tamils, in the government’s political will to guarantee justice for all.

The government should be encouraged to start developing a comprehensive plan for security sector reform. Such a plan should aim to reduce the military’s social, political and economic footprint in the north and east, as well as to include job training, re-employment programmes and psycho-social support for demobilised soldiers. Many ex-soldiers are severely traumatised and caught in continued cycles of violence – in the home and on the street, sometimes as hired thugs for politicians. Foreign militaries now working more closely with Sri Lanka should make offers of technical support for security sector reform a central component of their re-engagement. Donors should use their leverage – including the prospect of additional deployments of Sri Lankan troops as UN peacekeepers – to encourage the long hard work of restructuring the military for peacetime duties.

As the past nine months of fitful and partial implementation of last year’s consensus resolution make clear, the political challenges ahead in Sri Lanka are considerable. For there to be a realistic chance of ending the culture of impunity and establishing effective forms of transitional justice, the Human Rights Council and other UN mechanisms will need to remain engaged beyond March 2017. Consideration of Sri Lanka by the Council remains one of the primary factors driving action – as is evident by the flurry of activity in recent weeks.

Member states should begin discussions now about what form continued engagement can take. Among other options, council members should encourage the Sri Lankan government to invite an expanded presence of the Office of the High Commissioner for Human Rights, whose resources in Sri Lanka remain insufficient to meet the many pressing demands.

Sri Lanka’s much-improved engagement with UN agencies and human rights mechanisms is to be welcomed. But it is not enough. What all of Sri Lanka’s communities need and deserve now are tangible changes in legislation and concrete implementation of its international promises and obligations on the ground. (ICG)

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