Sri Lanka’s Tortuous Path to Reconciliation and Justice

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Sri Lanka’s surprising election in early January resulted in the ousting of authoritarian president Mahinda Rajapaksa. Maithripala Sirisena, the former health minister and general secretary of the Sri Lanka Freedom Party, is now president. Leading a broad alliance that is purportedly set to implement significant constitutional reforms and put an end to the corruption and nepotism that plagued Rajapaksa’s tenure, Sirisena has ushered in optimism about changing Sri Lanka’s path. Nevertheless, reconciliation and accountability for wartime atrocities may continue to elude the island nation. For starters, Sirisena was acting defense minister during the end of the 26-year-long civil war. Second, Rajapaksa’s defeat has resulted in a complicated political situation and parliamentary elections are expected imminently. Lastly, the release of an important report focused on wartime atrocities in Sri Lanka has been delayed for six months.

The 28th session of the U.N. Human Rights Council began on March 2 and ended late last month. During this session, the Office of the High Commissioner for Human Rights had been scheduled to deliver this highly anticipated report. Yet, after intense lobbying by the Sri Lankan government, the report will now be released at the Human Rights Council’s 30th session in September. With new promises of a domestic accountability mechanism and assurances about future cooperation with the High Commissioner’s Office, the Sirisena administration has bought itself some time.

The release of this report would mark the culmination of sustained international pressure on Sri Lanka over the past several years, including the passage of three Human Rights Council resolutions — dealing broadly with issues pertaining to justice, reconciliation, human rights, and accountability — since 2012. The report is expected to add to a substantial body of evidence which suggests serious violations of international humanitarian and human rights law were committed by government forces and the separatist Tamil Tigers.

Leading figures in the Obama administration — including John Kerry, Antony Blinken, Susan Rice, and Samantha Power — have already praised the recent transfer of power in Colombo. Assistant Secretary of State Nisha Biswal spoke effusively of a new era for democracy in Sri Lanka during her recent visit to the island.

The Sirisena administration has made some early steps in the right direction. For example, a new chief justice has been appointed to the Supreme Court. Some media restrictions have been lifted; travel restrictions for foreign nationals seeking to visit the north have been scrapped; and probes into corruption have been initiated. Nonetheless, Sirisena’s reform plan is behind schedule and it is still too early to tell how much of his agenda will actually be implemented.

It is true the additional six months could result in a more thorough investigation and a stronger report. More evidence could be gathered or examined and the newly elected government might even help with this process. The Sirisena administration has indicated that it is prepared to cooperate with the Office of the High Commissioner in ways that the Rajapaksa administration was not — though it remains unclear how much genuine collaboration will take place. While Rajapaksa did not allow the investigation team to enter Sri Lanka, Sirisena will not either.

Sri Lanka’s upcoming parliamentary election had been cited as a key reason for why the release of the report needed to be delayed. Indeed with a parliamentary election expected in June, Sri Lanka’s political situation remains complex and precarious. Many have argued that the release of such a sensitive report could have electoral implications.

Is a delay really a good idea?

Firstly, it seems reasonable to argue that resolutions passed at the Human Rights Council and an investigation into wartime abuses in Sri Lanka should not be held captive to the vicissitudes of the domestic politics of any country.

More specifically, Sirisena has promised to pursue accountability for wartime atrocities through a domestic mechanism, but it is highly unlikely that a domestic probe would result in genuine accountability or actual criminal prosecutions of any senior officials. Moreover, it would be even more unrealistic to expect any of this to happen in the next six months.

On the one hand, Sirisena’s administration has said it needs time and space to implement the reforms it campaigned on and to deal with accountability issues domestically since this is an especially sensitive moment. Yet with a parliamentary election right around the corner, it would be politically toxic to lead the charge against members of the almost exclusively Sinhalese military over alleged wartime atrocities. Sirisena’s decision to expand the size of his cabinet significantly and form a “national government” has heightened concerns about the president’s commitment to his campaign promises pertaining to anti-corruption and improved governance. Furthermore, recent pro-Rajapaksa rallies are reminders that Rajapaksa’s brand remains a political force that cannot be ignored.

Any assessment of the Sri Lanka government’s heightened engagement with the Office of the High Commissioner over the next six months should be directly related to the investigation which remains ongoing. For example, will the Sri Lankan government help investigators uncover new, qualitatively different evidence than what has been gathered already? Would the Sri Lankan government allow senior Sri Lankan military officials to be interviewed by the investigation team?

Unsurprisingly, Tamils residing in Sri Lanka and abroad have expressed their disappointment regarding the delay. The postponement was supported by the United States and other western countries (the key architects of past Human Rights Council resolutions on Sri Lanka) and the U.N. High Commissioner for Human Rights himself.

In spite of lofty rhetoric, there is already a sense that Sri Lanka fatigue at the Human Rights Council is becoming more widespread. Delaying the report makes it easier for people to lose interest and, crucially, makes the prospects of further action on Sri Lanka at the Human Rights Council (or other multilateral bodies) even more remote.

Even if a hard-hitting report on Sri Lanka were delivered this March, justice or accountability would not have followed inevitably. Realistically speaking, the clearest route to accountability for wartime atrocities in Sri Lanka is through a U.N. Security Council resolution, something that is unlikely to happen in the near future, but will be even less likely to happen now that the report will not be released until September.

Transitional justice in Sri Lanka is unlikely to happen without sustained international pressure. The release of the forthcoming report is just one part of a longer, more convoluted process toward accountability and justice — which will not happen without the commensurate political will. Staying optimistic about the country’s recent transfer of power has been a challenge, but the window for meaningful change remains open. In the coming months, the international community will know whether or not such optimism has been misplaced. Regardless, Sri Lanka’s convoluted path to reconciliation and justice is far from finished.