By Ajit Kumar Singh
Despite the passage of nearly a decade since the end of the civil war in Sri Lanka, the issue of alleged ‘war crimes’ during the last phases of the war continues to ‘haunt’ the international community, mainly the western world. On March 29, 2019, the Australian envoy to Sri Lanka, Acting Ambassador John Philp reiterated these ‘concerns’, stating, “we do want to work with the Sri Lankan tri-services, (but) we do know that there are serious allegations. We certainly believe that they should be taken seriously”.
Certain ‘foreign powers’ who were not happy with the outcome in 2009 have since being targeting Colombo and putting undue pressure on the Government. On March 21, 2019, the United Nations High Rights Council (UNHRC), during its 40th Session (February 25- March 22, 2019) adopted a resolution (A/HRC/40/L.1 titled Promoting reconciliation, accountability and human rights in Sri Lanka) asking Colombo to follow the recommendations made in a report submitted to the Human Rights Council on February 8, 2019. The report recommended the Government of Sri Lanka to
|…adopt legislation establishing a hybrid court to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law…|
The ‘hybrid court’ would include international judges, lawyers and investigators judges and in its processes. The UNHRC while adopting the resolution gave an extension till March 2021 for Sri Lanka to implement its commitments. It was the second extension obtained by Sri Lanka since the original resolution was passed in October 2015 and extended in March 2017. Ironically, the resolution had the support of Sri Lanka, and the Sri Lankan representative signed the report on February 25, 2019.
The UNHRC resolution was adopted despite Tilak Marapana, PC., Sri Lanka’s Minister of Foreign Affairs, speaking at the at the 40th Session of the UNHRC on March 20, 2019, rejected the recommendation, arguing
|…the Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum…|
He argued further,
|…it must be asserted that there are no proven allegations against individuals on war crimes or crimes against humanity in the OISL report of 2015 or in any subsequent official document. It is an injustice to deprive any serving or retired officer of the Sri Lankan security forces or the police their due rights…|
He also rejected the demand to set up an Office of the High Commissioner for Human Rights (OHCHR) in the country.
Indeed, Sri Lankan President Maithripala Sirisena observed, on March 28, 2019, that although the Government had admitted the correct facts of the statements issued by the UNHRC, it is not willing to accept the erroneous assertions in those statements under any circumstances, and that he would not implement any resolutions of the UNHRC which is contrary to the Constitution, or which will endanger the sovereignty, of the country. The President also insisted that he would not in any way accept the agreement signed by the Sri Lankan Ambassador in Geneva with the UNHRC in February, as it was signed without the knowledge of the Ministry of Foreign Affairs or its Secretary. He added that he would extend his fullest discontentment regarding this incident which occurred due to the “wrongful decisions of our own parties.”
It is useful to recall here that all this is occurring amidst a political slugfest in Sri Lanka, which started with the ouster of President Mahinda Rajapaksa from power in January 2015 and later deepened further reached to an alarming level in October 2018. President Sirisena set off a rolling crisis when he sacked the Prime Minister and leader of the United National Party (UNP) Ranil Wickremesinghe on October 26, 2018, and appointed former President and Kurunegala District Member of Parliament (MP) Mahinda Rajapaksa to the post. However, as President Sirisena realized that his de facto Prime Minister, Rajapaksa, would not command a majority in Parliament, in an extraordinary Gazette notification he announced the dissolution of Parliament with effect from November 9, midnight, and scheduled general elections to be held on January 5, 2019.
However, exactly 34 days later, on December 13, 2018, the Supreme Court (SC) of Sri Lanka ruled, that President Sirisena’s decision was illegal and unconstitutional. After the SC ruling, UNP leader Ranil Wickremesinghe was sworn-in on December 16, 2018, for a fifth time, as the Prime Minister, ending a nearly two-month long political crisis.
The SC ruling and subsequent restoration of the Government clearly demonstrated that roots of democracy have deepened in the island nation, and that the judicial system is robust and has the capabilities to instill confidence among the masses.
Indeed, Sri Lanka has taken deep strides forward since the end of the civil war. Highlighting these achievements, Mass Media and Information Minister Keheliya Rambukwella emphasized on August 28, 2013, that, during a short period of four years after the end of hostilities, approximately 300,000 displaced persons had been resettled. He had also disclosed that only 232 surrendered Liberation Tigers of Tamil Eelam (LTTE) cadres were left in camps. When the war had ended in May 2009, around 11,800 ex-LTTE cadres had surrendered to the Security Forces (SFs). In 2015, the Government disclosed that it had also successfully rehabilitated most of the former LTTE cadres, with only 49 hardcore LTTE elements remaining in detention.
More recently, on September 5, 2018, the Office on Missing Persons (OMP) handed its Interim Report to President Maithripala Sirisena. The OMP was operationalized on March 13, 2018, to determine the status of all persons who went ‘missing’ during the civil war. According to the Paranagama Commission Report, around 21,000 people went missing during the civil war.
Moreover, during his speech at the UN, on March 20, 2019, Tilak Marapana, PC., the Minister of Foreign Affairs had also disclosed,
|Of the 71,172.56 acres of State lands held by the Security Forces, since May 2009, 63,257.48 acres have been released, as at 12th March 2019, i.e. a release of 88.87% of land originally held. Of the 28,215.29 acres of the private land held by the Security Forces since May 2009, 26,005.17 acres (92.16%) have been released as at 12th March 2019.|
Further, to expand national unity and reconciliation projects island-wide, and to create a discourse on reconciliation at the grass roots level, the Office for National Unity and Reconciliation (ONUR) signed a Memorandum of Understanding (MoU) with 22 Civil Society Organizations (CSOs) on July 3, 2018. The main objective of the MoU was to expand the “Heal the Past, Build the Future” project in 17 selected Districts. Meanwhile, the Office for Reparations Bill, ratified by the Cabinet on June 13, 2018, for the payment of reparations to war-affected and missing persons, was submitted to Parliament on July 17, 2018. However, on August 7, 2018, the Supreme Court shot down two clauses of the Bill on the grounds that they vested judicial powers in the Office for Reparations. According to the Court, Sections 27 (a) and 27 (A) (iii) of the Bill were inconsistent with Sections 4 (D) and Section 3 of the Constitution and therefore the Court stated that the Bill has to be approved by a two-thirds majority of the total number of members in the Parliament, in order to bring about a Constitutional amendment. The SC also recommended that the Bill should be approved by the people through a referendum and that the inconsistency could be removed if amendments were made in line with the directions it had given. No further development has taken place in this regard.
More importantly, not a single terrorist attack has been recorded in the country since the end of war in 2009. Significantly, the Global Terrorism Index 2018 report noted,
|Over the past 16 years, only two countries in South Asia experienced a decrease in the impact of terrorism: Sri Lanka and Nepal… The decline in terrorism in Sri Lanka is largely the result of the defeat of the Liberation Tigers of Tamil in Eelam (LTTE) following the Sri Lankan Civil War.|
Some worries, of course, remain. Despite Wickremesinghe’s restoration as Prime Minister, the subsequent conflict over Cabinet appointments indicated that Sirisena and Wickremesinghe were still at loggerheads, and the country’s political crisis was far from over. Moreover, Sirisena and the Constitutional Council (CC) were also on a collision course over the appointment of judges to the Supreme Court and the Court of Appeal.
Despite dramatic achievements in the normalization process after the end of the civil war, infirmities in the democratization process persist, feeding a fractious politics and institutional instability. The risk of new misadventures being launched by extreme political ideologies lingers in the backdrop.
*Ajit Kumar Singh
Research Fellow, Institute for Conflict Management