Americas Sri Lankan Dilemma

The United States and the U.N. must ensure that Sri Lanka's reconciliation
process is fair and just, rather than leaving the Sri Lankan government to
its own devices.

BY CALLUM MACRAE- SEPTEMBER 15, 2015

Mangala Samaraweera, Sri Lankas Foreign Minister, is a persuasive and very
probably sincere man. On Monday, he delivered a keynote speech to the opening
session of the UN Human Rights Council in Geneva in which he spoke of
reconciliation, hope, and a peaceful future for all the people of Sri Lanka after their
terrible quarter -century-long civil war which ended in 2009.
But there is a huge problem here. And that problem is a yawning gulf between the
message coming out of the government of Sri Lanka when it is facing the rest of the
worldand the message it gives when facing the Tamils in the former war zones of the
North. Unless the members of the United Nations Human Rights Council (UNHRC)
and in particular the government of the United Statesmake an effort to understand
that gulf, all the genuine movement towards truth and justice over the past couple of
years may come to nothing.
Eighteen months ago, the UNHRC voted to establish an international investigation

focused on the allegations of terrible war crimes and massacres committed at the end
of the war in which tens of thousands of Tamil civilians diedmost killed by
government shelling, though the rebel Tamil Tigers too are accused of committing war
crimes.
On Wednesday that report will be made public. Thats the easy bit. Because then the
Human Rights Council has to decide how best to ensure accountability for those
crimes. The argument is simple, but intractable. The government of Sri Lankaunder
its new president, as under its lastsays it will only contemplate a domestically-run
accountability process, with international involvement limited to technical assistance
from the UN. It says that such a process can be fair and independent and that the
victims should trust it.
They dont. Indeed the Tamil victims in the former war zone fear such a process would
constitute little more than victors justice and would not just fail to be independent or
impartial; it would not even be safe to testify to. Instead, they call for an accountability
process under international control.
So why do they so distrust the promises of this new governmenta government which
has indeed made significant moves to end the repression and corruption of its
predecessor? After all, the Foreign Minister spoke on Monday of achieving
meaningful reconciliation and confidence building among communities affected by
conflict.
It began even before Maithripala Sirisenas victory in January this year. In apreelection interview with The Daily Mirror (a Sri Lankan newspaper), Sirisena boasted: I
was the minister in charge during the last two weeks of the war in which most of the
leaders of the LTTE were killed. That was also the period when some of the worst
atrocities, the rapes, extrajudicial executions, and widespread disappearances were
reaching their climax.
After his election, Sirisena promoted General Sarath Fonsekawho was the armys
commanding officer for the last years of the war when the worst atrocities were
committedto field marshall, the highest rank possible.
He also appointed Lieutenant General A. W. J. C. De Silva as army commander. De
Silva was previously president of a so-called Military Court of Inquiry set up by
President Rajapaksa to look into the allegations of civilian killings. To some
international derision, De Silvas courtconclusively established that the Humanitarian
Operation [the term used by the army to refer to the last bloody months of the war]
was conducted strictly in accordance with the Zero Civilian Casualty directive made
by His Excellency the [then] President Mahinda Rajapaksa.
But perhaps Sirisenas most remarkable act was the promotion of Major General
Jagath Dias. During the war, Dias was commander of the Sri Lankan Armys
57th Division, accused of responsibility for some of the worst war crimes in the final
weeks of the conflict. After the war, he was dispatched by then President Mahinda
Rajapaksa to Europe to become Sri Lankas ambassador to Switzerland, Germany,

and the Vatican, only to be withdrawn amid controversy over the war crime allegations.
He is seen as one of the people most likely to face investigation in any accountability
process. Yet in May of this year, Sirisena appointed him Chief of Staff of the Sri
Lankan Army. For the Tamils of the North and East, living under what is in effect a
military occupation (most Sri Lankan military forces are stationed in the predominantly
Tamil former war zone), this was seen as a shameless act of intimidationand yet
more reason to distrust the presidents insistence that he could be trusted to establish
a genuinely independent domestic accountability process.
On Monday, members of the Human Rights Council nodded sagely in Geneva as
Foreign Minister Samaraweera spoke of the necessity of reaching a political
settlement that addresses the grievances of the Tamil people. They nodded their
heads in acknowledgement of Samaraweeras observation that from May 2009 postconflict reconciliation eluded us as a result of the triumphalist approach that was
adopted immediately following the end of the conflict.
But just a week earlier, President Sirisena himself had delivered exactly such a
triumphalist keynote speech in Sri Lankaloyally reported by the governments official
website. In it he simultaneously attacked the political aspirations of the Tamils for some
kind of federal solution to the national question and unconditionally praised the armed
forces, many of whose commanders and members are accused of war crimes.
It is worth taking a look at the report of Sirisenas speech, which records how he spoke
emotively of the Motherland and pledged he would not allow anybody to divide the
country which was united by the valiant war heroes shedding their blood.
That is what the Tamils hear, not the emollient tones of a Foreign Minister trying to get
the international community off his back.
And as if to drive the point home, just two weeks ago, the army conducted what it
called riot control exercises in the heart of the Tamil areas of the former war zone.
The message was clear. While Samaraweera was assuring the rest of the world they
were determined to work towards reconciliation and confidence building measures, the
army was delivering a very different message to the Tamils of the North and East.
And it was noticeable that Samaraweera did not mention such critical issues as how
they would consult or hear evidence from the thousands of exiled victims living in fear
outside the country. There was no mention of incorporating internationally recognized
crimes like war crimes and crimes against humanity into the Sri Lankan penal code. If
you dont even recognize these crimes how can you prosecute them?
These are all warning signs that the UNHRCand the government of the United
Statescannot afford to ignore.
The United States declared last month that at the upcoming Human Rights Council
meeting it will support a consensus resolution with the government of Sri Lanka on
what should happen next in the search for justice. At the same time the Sri Lankan
government made it absolutely clear that the only thing it will agree to is a domestic

process.
The horse-trading on the precise wording of that resolution will begin in earnest on
Monday in a series of informal discussions on the wording. But amid the talk
of realpolitik and anxious but unstated references to geo-strategic considerations (of
which the key one is that this government, unlike the last, is decidedly pro-West),
members of the Council would do well to remember some basic principles.
The aim of transitional justice procedures is not just to address past crimes, but to
ensure sustainable peace, justice and reconciliation. Simply put, it should prevent
such crimes from happening again. For that to happen, the victims must be involved in
the design of the mechanism; they must support it and have confidence in it. If they
dont support it and invest in it, they will not accept its findings and it will have
absolutely no value at all. It will not lead to peace. That is a principle understood and
accepted by the UN.
In April of this year, on his return from Sri Lanka, the UNs Special Rapporteur on the
promotion of truth, justice, reparation, and guarantees of non-recurrence, Pablo de
Greiff, observed: Citizens cannot be simply presented with solutions in the design of
which they were given no role transitional justice measures depend, to a large
extent, on the willingness of victims and others to participate.
Ironically, Samaraweera himself yesterday seemed to acknowledge that principle. He
said that various proposals for transitional justice and political reform will be evolved
and designed through a wide process of consultations involving all stakeholders,
including victims.
But in practice there has been only one high-profile consultation so far. Last week
President Sirisena, Prime Minister Ranil Wickremasinghe, and Foreign Minister
Samaraweera himself took part in high level discussions with the commanders of all
three wings of the armed forces. These talkswith the commanders of the forces
accused of committing so many of the crimeswere described as an initiation of the
process to reach an agreement as to the best mechanism or the mechanisms to be
adopted to handle the outstanding issues of accountability.
The victims do not trust a domestic process. That is a simple fact. The regional
representative body in the former war zone, the Northern Provincial Council recently
voted, unanimously, to reject proposals for a domestic inquiry. A popular signature
campaignon-going despite reports of intimidation by the security forcesis calling
on the Human Rights Council to support an international process.
It is difficult to avoid the conclusion that if the Human Rights Councilin a resolution
led by the US governmentwere nonetheless to vote to endorse a purely domestic
process, it would represent not just a betrayal of the clearly expressed wishes of the
Tamil victims in the North and East, it would also represent a betrayal of the principles
of the UN.
It would also be an inexcusable waste of a precious chance to move towards a
process of truth, justice, and reconciliation which would benefit all the communities of

this beautiful island.

Chamila Karunarathne/Anadolu Agency/Getty Images
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