Read the full report as a SriLanka Briefing note No 08 Feb 2014
Reconciliation, Accountability and Rule of Law
Addressing the issues of Accountability, Reconciliation and Rule of Law are of pivotal importance to any post-war society. War leaves behind the matters of justice, equality and de-militarisation to be grappled with. Sri Lanka is no exception. This is more so when conflict remains, even after the war comes to an end, as in Sri Lanka today.
Almost five years after the end of a three-decade war, Sri Lanka still has not been able to address these issues. Local and international calls for a credible and independent investigation into allegations of serious violations of international human rights and humanitarian law that took place during the last phase of war has not seen any positive response. The Government of Sri Lanka (GoSL) initially denied that any such violations took place. The Sri Lankan Minister of External Affairs has said on record that ”the government is not answerable for war deaths.’ The GoSL has refused to accept and comply with the two resolutions adopted by the 19th and 22nd session of the United Nations Human Rights Council on promoting reconciliation and accountability in Sri Lanka (A/HRC/19/L.2 and A/HRC/22/L.1/Rev1 respectively).
When the United Nations High Commissioner for Human Rights, Ms. Navaneetham Pillay visited Sri Lanka in August 2013, she was called an “agent of the terrorists” and ruling party leaders used abusive language against her. A number of people who met her to share their grievances had to face reprisals from the authorities. “Dissent and making complaints to the UN is unpatriotic” was the message given to justify these reprisals
The present government remains popular and won successive national and provincial elections after the end of the war. Yet, it remains extremely unpopular amongst Tamils in the war ravaged Northern province and to a lesser extent in the Eastern province. The Tamil National Alliance (TNA) won an overwhelming victory in the North and East in the first post-war parliamentary elections in 2010. More recently, the TNA won more than 78% of the votes in the first ever Northern Provincial Council elections in September 2013, despite threats and intimidations against leading candidates and Tamil newspapers supportive of its campaign.
There has been no progress on investigating even some of the specific cases highlighted by the LLRC, such as the LTTE cadres who surrendered to the Army and disappeared or the attacks on hospitals during the last phase of the war. There has also been no progress even on cases that the LLRC highlighted concerning the post-war period, such as the 2010 February disappearance and subsequent killing of human rights defender Pattani Razeek and the attack on the editor of the Tamil daily Uthayan, Kuganathan in July 2011.
This culture of impunity has led to an on going discussion, domestically and internationally, on the need for an independent and credible accountability mechanism to investigate allegations of violations of international human rights and humanitarian law during the war. The TNA in particular has consistently called for such an independent impartial and international investigation. More recently, Maduluwaew Sobitha prominent Sinhalese Buddhist Monk from Colombo, who is considered as one potential joint opposition presidential candidate, also expressed his support for an international investigation. The small but influential Christian Clergy in the North and East has also consistently called for an international investigation as well as prominent human rights defenders and human rights organizations in Sri Lanka.
Internationally, such calls for an independent and international investigation also have gathered momentum: India has expressed its desire to see an “independent and credible investigation” into the accountability issues in Sri Lanka; the Australian Senate has passed a resolution supporting the establishment of an “international accountability mechanism. ; and a group of US Senators have presented in February 2014 a resolution to the United States of America Congress calling for a an “independent international accountability mechanism” to evaluate reports of war crimes, crimes against humanity, and other human rights violations committed by both sides during and after the war in Sri Lanka Leading human rights organizations, such as Amnesty International, Human Rights Watch, the International Crisis Group, and the International Commission of Jurists, have also echoed such calls.
The far reaching recommendations of the Sri Lanka’s Lessons Learned and Reconciliation Commission (LLRC) in re-establishing democratic governance and the Rule of Law remain exist only on the paper. The GoSL representatives have made contradictory statements on the status of implementing the LLRC recommendations ranging from “it is just start rolling” to “almost complete”.
The Parliamentary opposition, the United National Party (UNP), has stated that “what the government has implemented are soft recommendations of the LLRC recommendations. It has not even thought of implementing the hard recommendations”. According to a report published by an independent research institute, Verite, the implementation of even some of the soft recommendations is very weak. The recent initiative of the GoSL, the Commission to Investigate Missing Persons has come under criticism for lack of mandate and capacity.
The rule of law in Sri Lanka still suffers from the politicisation and militarisation of government institutions. The President is empowered to make all appointments to almost all institutions that should play the role of checks and balances and be independent in any democracy. On top of weakening the public institutions, widespread nepotism is having a debilitating impact on the democratic norms of the country.
With the breakdown of the rule of law, Sinhala Buddhist extremist groups have taken law into their hands and the Island’s religious minorities have been at the receiving end of this: More than 300 recorded attacks on Muslim, Christian and Hindu religious places have taken place all over the country with complete impunity in 2013 alone, in some cases even with clear state patronage.
In the first quarter of 2014, leaders of the GoSL, including the President himself, have indicated their intentions to follow the Truth and Reconciliation Commission (TRC) of South Africa. In South Africa, the TRC was part and parcel of an in-depth democratisation process which included a brand new constitution. In post war Sri Lanka, however, democracy has been in the decline. The 18th Amendment to the Constitution of Sri Lanka and the illegal impeachment of the Chief Justice Shirani Bandaranajeka on political grounds illustrate this.
Democratisation and establishing accountability have to go hand in hand in Sri Lanka. Both these processes need to complement each other. The Government of Sri Lanka has shown neither the willingness nor the capacity to address these challenges and move forward. This makes the consistent international human rights interventions in relation to Sri Lanka all the more important and urgent.