Justice Delayed, Justice Denied

With Colombo expected to get another reprieve from prosecuting war crimes during nearly 30 years of civil conflict, Neville de Silva questions whether trials will ever happen

For the last decade or so Geneva has proved a diplomatic battleground for Sri Lanka. Western nations, led by the US and Britain, have pressed the country at the UN Human Rights Council to hold accountability trials for alleged violations of international humanitarian laws and war crimes during the latter stages of the conflict with the minority Tamil separatists, the Liberation Tigers of Tamil Eelam.

In 2009, the year the LTTE was militarily crushed, a resolution condemning Sri Lanka and calling for international investigations into the conduct of the war was decisively defeated. Instead, a counter resolution praising Sri Lanka’s victory over the LTTE was passed by the UNHRC with the help of China, Russia, and members of the Non-Aligned Movement, of which Sri Lanka is a founder member.

Western pressure on Sri Lanka and its then president, Mahinda Rajapaksa, continued, but then Rajapaksa unexpectedly lost the January 2015 presidential election, and the parliamentary election that August. Washington had already tabled a strongly-worded motion at the UNHRC, calling for war crimes trials of the former president, his brother, who had been defence secretary, and senior military figures, but the election result brought a change of tack.

The new government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, especially the west-leaning United National Party (UNP), the main component of the coalition, was more favourable to the US-led initiative.

Though wary of opposition among the Buddhist Sinhala majority in the south of the island, the main target of LTTE terrorism, Sri Lanka co-sponsored the October 2015 resolution that called for accountability trials and proposed that Commonwealth and foreign judges, investigators and counsel participate in the judicial mechanism that the country agreed to establish.

Sri Lanka asked for two years to implement the resolution, but in March this year sought another two-year extension. While that is sure to be granted, the reasons owe more to changed circumstances abroad than to the persuasiveness of Sri Lankan diplomats.

The new US president, Donald Trump, dismisses human rights as a key foreign policy priority. His threat to pull out of the UNHCR, or at least play a minor role, has made Sri Lanka’s war trials a minor issue to Washington. Given Trump’s hostility to China, the US is more interested in steering Colombo away from the close relationship with Beijing that developed under Rajapaksa. In the UK, meanwhile, the impending withdrawal from the European Union has caused Theresa May’s government to seek more widely for new relationships, or renewed ones.

A recent meeting in London of trade ministers from 35 of the Commonwealth’s 52 member states, including Sri Lanka. Pic courtesy Asian Affairs.

Sri Lanka’s leading English-language weekly, the Sunday Times, quoted May, speaking on Commonwealth Day, March 13, of a ‘truly global Britain’, a clear reference to looking beyond Europe and re-engaging with other countries, mainly in the Commonwealth. It pointed out that a meeting in London of trade ministers from 35 of the Commonwealth’s 52 member states, including Sri Lanka, was the first since 2005: a fact, it said, that ‘spoke for itself’.

The paper added: ‘Britain’s decision to sideline its age-old trading partners in the Commonwealth was recognised at that very meeting and the country was asked, not necessarily to beg forgiveness, but to re-approach with “a degree of humility” old partners who were cast aside.’

A two-year delay in implementing the UNHCR resolution, however, would bring Sri Lanka very close to the scheduled parliamentary elections in 2020. Divisions within the governing coalition are simmering; cabinet changes Sirisena wants are being held up by Wickremesinghe, who is determined to defend his nominees. Analysts claim these are friends and schoolmates of the Prime Minister who have failed to deliver on promises of good governance, revival of the rule of law, and elimination of corruption and nepotism.

Sri Lanka-born Razeen Sally, a well-known economist, associate professor at the Lee Kuan Yew School of Public Policy in Singapore and chairman of Sri Lanka’s Institute of Policy Studies, wrote recently that the present national unity government came to power promising Yahapalanaya (good governance), but ‘nepotism and corruption remain rife; essentially, they have returned to pre-Rajapaksa levels. None of the Rajapaksas and their cronies has been prosecuted, fined or jailed for corruption, let alone for human-rights abuses. No serious reforms have materialised to repair ethnic relations – on justice for victims of human-rights abuses during the war, land restitution, demilitarisation and devolution of power.’

Transitional justice is likely to be buried alongside the bones of the deceased, while the US and Britain look away
The chief victim, according to Sally, is the economy. ‘It ambles along, growing at about 5 per cent a year… significantly below potential growth. The present Government continued its predecessor’s fiscal and monetary profligacy, eroding the tax base, and expanding expenditure entitlements and public debt – until an IMF bailout prevented a full-blown crisis. But this has not led to fundamental reforms of taxation or expenditure.’

In these circumstances, dealing with the legacy of the previous regime is not only a low priority, the coalition partners are competing to disown the process. Both have ruled out foreign judges taking part in trials. Many suspect that the UNP is seeking to delay so that accountability trials never take place, or to set up a judicial mechanism that produces little in the way of genuine justice for victims of a near three-decade conflict.

Courtesy Asian Affairs