Sri Lanka at a crossroads

There's been a seismic shift. The publication of the UN report on Sri Lanka in September put on record indisputably and for posterity the terrible suffering endured by Tamils in the final phase of the Sri Lankan civil war. That acknowledgement of the atrocities is hugely significant given just a few years ago the world disbelieved most of these accounts. The extent of organised sexual violence and torture by the Sri Lankan security forces in the post-war period and right up to the present day and the chilling way every medical facility was deliberately attacked is now a matter of record, to mention but a few of the crimes. Notably the Government of Sri Lanka has not challenged these accounts, even if the media has been slow to treat them as established and widely acknowledged facts.

Tamil diaspora groups and international human rights activists have had to face the unwelcome reality that they're more unlikely than ever to get the international tribunal for Sri Lanka they wanted. A few are now talking about tentative engagement with the government's new transitional justice process - at least at the outset - though they have every reason to be deeply sceptical. They fear boycotting the process will sideline them forever but it's a tough compromise to sell to their constituency that is sorely disappointed.

There's an uncontrollable unpredictability about the current situation. It's as if Sri Lankan politicians have been forced at gunpoint to throw an explosive up into the air and they've no clear idea what will happen when it lands. It could destroy them, it could take out their enemies, or just be a large noise that distracts the international community and gets them off the hook, which is what they'd probably prefer.

Domestic or Hybrid?

Everything is up for grabs and events are unfolding very rapidly, with new alignments forming and old internal divisions rising to the fore. It's likely the Tamil diaspora groups will soon be de-proscribed, with several now talking of moving to Sri Lanka to open offices, taking advantage of the tiny chink of freedom to push the boundaries as far as they can. A week ago that was unthinkable. Rifts between rival Tamil representatives inside the island are suddenly more visible because so much is at stake politically. Everyone still seems to want to be the legitimate - and if possible sole - representatives of the Tamil people. Sometimes it feels as if the victims of the war are the last ones on anybody's minds.

The situation is unusually fluid. As ever with Sri Lanka, terminology is hotly disputed and that's adding to the confusion. There's no consensus on whether the government has just agreed to a domestic or a hybrid court. The main Tamil political party, the TNA, seems to think if it calls it hybrid it will become just that and maybe they have a point - nomenclature does shape reality. Their Tamil critics say some international involvement doesn't make it a hybrid court and they point to the lack of a majority or veto powers for the international judges.

For its part, the Sri Lankan government clearly intended their process to be purely domestic but was surprised by the first draft of the UN resolution, which was far stronger than expected. What finally emerged from Geneva was a supreme fudge. The consensus UN resolution says, "Commonwealth and other foreign judges, defence lawyer, and authorised prosecutors and investigators" will participate in the Sri Lankan judicial mechanism, including the Special Counsel's office.

Sri Lankan lawyers point out only the Judicial Services Commission and the President can appoint judges in the country and any special chamber would require the enactment of a new law that will likely be challenged for years in the Supreme Court by the opponents of accountability. It's also not clear who will appoint the judges and lawyers, domestic or international; they could easily be partisan figures who render the process a sham. Indeed some human rights lawyers say the entire judicial system has been so degraded that there are no credible figures to preside over an impartial process. Sri Lanka's prosecutorial system replies so heavily on torture that it may be unable to investigate anyone, let alone the country's security forces.

Questioning Tamil activists

The Sri Lankan government has devised a plan that's just a skeleton at present -without putting flesh on it. It's possible engagement from the international community and Tamil diaspora will force open the process, pushing it into something more credible. It's also possible it will just rubber stamp yet another pointless domestic process that does everything but get to the truth.

There are opponents of the process on all sides who will do their best to discredit and derail the process. The fact the Sri Lankan security services this week went to question the only Tamil activist who spoke in public in Geneva appears to be an attempt to embarrass the government. This sort of harassment causes disproportionate bad feeling and suspicion, especially when the target is a highly respected Catholic priest who works tirelessly with the families of the Disappeared.

Then there's the double speak. Sri Lankan government officials say one thing to the international community and another to their own people in the south of the country. They seem to forget that the world has shrunk with social media and everyone is watching their every utterance, irrespective of whether it's in Sinhala or English.

Systemic and coordinated crimes

Political fissures are a worry. The ruling coalition is not united by ideology or personal loyalty, rather by patronage and power. It wouldn't take much to woo many of them away. Indeed a large proportion of majority Sinhalese voted for the Rajapaksas, not this new government.

The biggest unknown is the bloated Sri Lankan military, at best unwilling to see its war perks diminished, let alone their so called "war heroes" put on trial. A coup or toppling of government is not impossible if too many senior officers suddenly feel their interests are threatened by the accountability process. The government has been trying to reassure the top brass by saying accountability will restore the reputation of the armed forces, tainted by just a few rotten apples. This approach is deeply problematic given the UN report clearly speaks of "system crimes" - atrocities committed in a systematic, widespread, organised and pre-planned way by multiple wings of the security forces. Any credible accountability process will need to address the systemic and coordinated nature of the crimes against Tamils and the intent behind them. It will not suffice to tackle a few emblematic human rights cases and sell that as a Sri Lankan style transitional justice process.

Elitist consultations

The first test for Sri Lankan accountability will be the national consultation process due to start in mid-October. If it's inclusive and transparent that will be a good auger for the future. Some conspiracy theorists (not Sri Lankans) suggest the government might want the initial stages to fail so they don't have to go through with the entire accountability process. If consultations are elitist, Colombo-centric and secretive then they will alienate the victims. Already some north-eastern human rights activists complain their colleagues in the south have just used the accountability issue to effect regime change and now they've got it they're no longer interested in justice for Tamils. One rather mild figure surprisingly described some NGO's in the capital as "collaborating with the perpetrators". Civil society groups are in the throes of major upheaval and realignment. Some who were once antagonistic are now finding common cause but as a Tamil priest complained, "everyone claims to speak for the victims but nobody does".

It's essential that one important group is not forgotten - exiled victims and witnesses. The vast majority of those who testified to the UN investigation were recent exiles and they did so at considerable cost to themselves, recounting deeply traumatic experiences in the hope they could advance justice. They are people who've been hung upside down, forced to inhale chilli, stripped naked, bound and brutally gang raped, left in pools of blood. They are people who endured months of a death march, hiding their precious children from the LTTE recruiters, sheltering under trees while the Sri Lankan military fired multi-barrelled rocket launchers at them, forced to abandon their loved ones to die in agony alone on the roadside as they ran to safety. They were scared to go and meet a UN investigator and relive these events. It's only because of their bravery and selflessness that there is an accountability process at all now. They were driven out of Sri Lanka to silence them. It would be shameful to overlook them at this critical point. Their inclusion in the national consultation will be a litmus test of its credibility.

Lead photo: Tamils commemorating their war dead for the first time in six years during a ceremony in Mullivaikkal, 18 May 2015 (Lakshman Warnakulasooriya / JDS)

© Huffington Post

The former BBC Correspondent in Sri Lanka, Frances Harrison is the author of Still Counting the Dead: Survivors of Sri Lanka's Hidden War, published by Portobello Books (UK), House of Anansi (Canada) and Penguin ( India).


Journalists for Democracy in Sri Lanka

  • JDS is the Sri Lankan partner organization of international media rights group, Reporters Without Borders (RSF). The launching of this website was made possible by the EU’s European Instrument for Democracy and Human Rights (EIDHR), of which Reporters Without Borders is a beneficiary.