Lessons learnt?

| by R.K. Radhakrishnan 

Courtesy:- Front Line, India 

Sri Lanka: Post UNHRC resolution, the theme of “betrayal” and “conspiracy” has taken centre stage in the country.

( April 04, 2012, Colombo, Sri Lanka Guardian) Ever since the guns fell silent in May 2009 in Sri Lanka's Northern Province, which was once held by the Liberation Tigers of Tamil Eelam (LTTE), there has not been a single instance of residual elements staging an attack. It was a complete victory – every ranking LTTE leader was either killed or captured.

Before long, the Sri Lanka Armed Forces began a deliberate – but admittedly sound – policy of occupying large swathes of the province. This was to ensure that the forces could respond quickly in an emergency and to abort the formation of yet another LTTE-type outfit. Diplomatic sources confirm that for every four civilians there is a soldier in the Northern Province. In essence, the Sri Lankan response in the immediate aftermath of the victory over the Tigers was to treat the whole Tamil ethnic question as a law and order problem.

Army ex-servicemen were encouraged to set up shops along A-9, the main highway that connects the national capital, Colombo, to Jaffna, the capital of the Northern Province. The Army itself is intricately involved in economic activity in the province and in some cases has supplanted the livelihoods of populations it was sent in to protect. A senior leader of the main opposition, the United National Party, described the Army's foray into civilian spheres of activity as one fraught with danger for any democracy.

The last part of the change post-May 2009 in the province, which is still dominated by Tamils, is the addition of a development angle to this matrix – the rebuilding of infrastructure that the LTTE allowed to crumble (much to its advantage). The roads are far better now, communication facilities have leapfrogged, street lights actually burn, connectivity is improving by the day, and schools function normally. So, what more should the government “give”? That is the indignant question any ranking Sri Lankan official asks when the discussion turns to the “plight” of Tamils in the country. It is essentially this flawed understanding of “giving” and “taking” that defines the Sinhala psyche, which refuses to acknowledge the very existence of a “problem” for the Tamils. This skewed understanding of minority rights forms the basis of all that has gone wrong with the Sri Lankan polity and has resulted in the country being hauled up by the United Nations Human Rights Council. On March 22, a United States-sponsored resolution critical of its human rights record was passed in the council.

LTTE and the Sri Lankan government

Year 2006: In the last round of talks held in Europe, the Tamil Tigers were virtually cornered into an agreement with the government of Sri Lanka. A harassed Anton Balasingham, the LTTE's chief political strategist, rang up LTTE chief Velupillai Prabakaran to inform him that there was no way out other than to agree to all the conditions set by the government and implement a ceasefire. Prabakaran's response, as narrated by a diplomat involved in the talks, was: “In that case agree with them and come. We can decide later what we need to do.”

Of course, the LTTE went back on its word. The Sri Lankan government, perhaps taking its cue from the LTTE, adopted this doublespeak in its diplomatic interactions with the world. Since the end of Eelam War IV, everyone in positions of authority in the government has repeatedly promised one thing on the Tamil question and done something completely different.

The first of these instances of doublespeak comes from President Mahinda Rajapaksa himself. Soon after the end of the war in May 2009, U.N. Secretary-General Ban Ki-moon arrived in Colombo and travelled to the camps for Tamils.

A joint statement issued at the end of that meeting outlined the path Sri Lanka intended to pursue. In that, among other things, was Rajapaksa's “firm resolve to proceed with the implementation of the 13th Amendment as well as to begin a broader dialogue with all parties, including the Tamil parties, in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka”.

In June 2010, Rajapaksa met Prime Minister Manmohan Singh in New Delhi. A joint statement issued at the end of that tour said the Indian “Prime Minister emphasised that a meaningful devolution package, building upon the 13th Amendment, would create the necessary conditions for a lasting political settlement. The President of Sri Lanka reiterated his determination to evolve a political settlement acceptable to all communities that would act as a catalyst to create the necessary conditions in which all the people of Sri Lanka could lead their lives in an atmosphere of peace, justice and dignity, consistent with democracy, pluralism, equal opportunity and respect for human rights. Towards this end, the President expressed his resolve to continue to implement in particular the relevant provisions of the Constitution designed to strengthen national amity and reconciliation through empowerment.”

A year and a half later, after a meeting with Rajapaksa on January 17, 2012, Indian External Affairs Minister S.M. Krishna said in a statement: “I discussed this matter [political solution for Tamils] with His Excellency the President this morning. The President assured me that he stands by his commitment to pursuing the 13th Amendment [to the Sri Lankan Constitution] plus approach.”

The joint statement issued at the end of a meeting between the Foreign Ministers of the two countries in New Delhi in May 2011 also made the same commitment: “A devolution package, building upon the 13th Amendment, would contribute towards creating the necessary conditions for such reconciliation.”

According to the 13th Amendment, a product of the India-Sri Lanka Accord of 1987, the Sri Lankan government had to devolve some powers to the provinces. It has three lists that detailed power-sharing between Colombo and the provinces. Broadly, it provided for a merger of the Northern and the Eastern provinces and for certain financial provisions for the provinces. The provinces would have an elected council, a Chief Minister and Ministers, and a Governor appointed by the President.

A day after Krishna met Rajapaksa and issued a statement – released to the press by the Indian side – an influential English daily, The Island, claimed that the President had not talked anything about the 13th Amendment with Krishna. The next day, at an interaction, The Hindu's correspondent asked Rajapaksa if the report in The Island was correct, and, “In which case, is Mr Krishna lying?”

Rajapaksa sidestepped the question but did not shy away from answering the main issue. The 13th Amendment or any solution, he said, had to be discussed in the Parliamentary Select Committee, or PSC, (“Rajapaksa does a U-turn on 13th Amendment”, The Hindu, February 1, 2012).

The government and the TNA

Even as Sri Lanka gave periodic assurances to India, the U.S. and the U.N., it held talks with the Tamil National Alliance (TNA), an umbrella alliance of Tamil parties that forms the lone credible representative of the people of the North. Both sides repeated their stated positions in the talks. The TNA wanted political autonomy and a merger of the two Tamil-majority provinces, the North and the East. The government was firm that what could not be achieved by the gun would not be given away at the negotiating table.

The TNA's immaturity at the negotiating table became clear when it broke away from the talks claiming that the government had not responded to a status paper that it had circulated. The TNA demanded that the government respond to all the questions it had raised ahead of recommencing the dialogue. The government was furious.

In a statement, one of the main negotiators, Sajin de Vass Gunawardena, Member of Parliament, described the TNA's demand as something that could not be acted upon because it encompassed the entire gamut of issues on the table. The issues raised could only be decided by a PSC, he said. The government too changed tack: it insisted that it was not a government committee that was talking to the TNA but a bunch of representatives of the Sri Lanka Freedom Party (SLFP), the main party in the coalition that formed the government. The government still sticks to its stand that a discussion should be on in the PSC and the TNA refuses to name its members to the committee. The end result after more than a year of talks? Nothing.

The LLRC report

The most important development in Sri Lanka in the context of making progress towards healing the wounds of war is the report by the Lessons Learnt and Reconciliation Commission (LLRC), which was constituted by Rajapaksa. In September 2010, the commission submitted its Interim Recommendations to the President covering issues relating to detainees, law and order, land, illegal armed groups and language. The final report was submitted to the President on November 20, 2011. It was presented in Parliament on December 16 and made public that day.

The LLRC wanted the government, among other things, to take up seriously the investigation of cases of disappearances and abductions; act stringently to curb activities of illegal armed groups; reduce high-security zones (mainly in Palaly and Trincomallee-Sampur); return private lands occupied by the military; and set in motion a process of demilitarisation, including the phasing out of the involvement of the security forces in civilian activities and the restoration of civilian administration in the Northern Province. The most contentious of its recommendations was that the state “ascertain more fully” the allegations of human rights violations against the security forces. It also wanted the state to investigate the forced disappearances. The LLRC's terms of reference did not allow it to investigate war crimes. The government appointed three committees to implement the LLRC's recommendations. The crux of the Sri Lankan argument since then has been as follows: The LLRC recommendations were submitted to the President. He presented the whole report in Parliament. Three committees have been set up to implement the report. In a short span of time (from December 2011 to March 2012), the government has already begun the implementation of the report. So where is the question of Sri Lanka not being serious about implementing the recommendations?

But Sri Lanka forgets that it is at the end of the third year since the war concluded. “Usually there is a five-year window after the conclusion of a conflict within which reconciliation needs to happen,” said a Colombo-based Western diplomat who has been involved in conflict resolution missions in other parts of the world. “If it does not, we will have another disaster on our hands,” he added.

Nearly three years after the end of the conflict, the Northern Province remains the only one without an elected Provincial Council. The armed forces are yet to return to the barracks. No meeting, gathering or protest can happen without the consent of the Army. “Jaffna is a large open jail,” said a Tamil who owns property in the province.

UNHRC resolution

It is against this background that the resolution against Sri Lanka needs to be viewed. “We had told them not to be surprised. We have been talking to them on these issues almost every week. Everyone saw it coming,” said an Indian diplomat.

“Promoting reconciliation and accountability in Sri Lanka”, the U.S.-sponsored resolution at the U.N.'s top human rights body censuring Sri Lanka for its alleged rights violations during the war against the LTTE, was introduced with the aim of seeking to implement the recommendations of the LLRC. The irony is twofold: one, the LLRC was a body of the Sri Lankan government, and two, its recommendations/report were not placed before the UNHRC.

Long before the opening of the 19th session of the UNHRC, Sri Lanka began the campaign to win friends among the 47-member council. Its representatives travelled far and wide, employed a huge contingent in Geneva, and launched counter-agitation campaigns in European capitals against Tamils who were launching protests. The “forces” opposed to Sri Lanka – parts of the Tamil diaspora that are yet to come to terms with the LTTE's demise, and the United States – began their campaign too. The diaspora and the Sri Lankan government used all available fora to make their voice heard above the din, including cyberspace.

Unwittingly, the second part of the Channel 4 documentary, “Sri Lanka's Killing Fields: War Crimes Unpunished”, which discussed the manner of the killing of LTTE chief Prabakaran's youngest son, Balachandran, aided the vocal diaspora. Its merits were not considered; Sri Lanka dismissed it as yet another propaganda stunt of the LTTE.

The UNHRC resolution calls upon the government of Sri Lanka to implement the constructive recommendations made in the report of the LLRC and to take all necessary additional steps to fulfil its relevant legal obligations and commitments to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans; requests the government to present, as expeditiously as possible, a comprehensive action plan detailing the steps it has taken and will take to implement the recommendations made in the commission's report, and also to address alleged violations of international law; encourages the Office of the U.N. High Commissioner for Human Rights and relevant special procedures mandate holders to provide, in consultation with, and with the concurrence of, the Government of Sri Lanka advice and technical assistance on implementing the above-mentioned steps; and requests the Office of the High Commissioner to present a report on the provision of such assistance to the Human Rights Council at its 22nd session.

India initially was reluctant to vote on a country-specific resolution but changed its stand because of the lack of progress on any front in Sri Lanka. Many observers assumed that the United Progressive Alliance (UPA) government was relenting to the pressure exerted by political parties in Tamil Nadu on it. If the idea was only to please the Dravida Munnetra Kazhagam, a constituent of the UPA, then India would not have pressed for any amendments in the text of the resolution. India insisted that the clause on reporting to the UNHRC on the developments and the clause that insisted that Sri Lanka accept the technical advice of the UNHRC be deleted. The resolution ended up being non-binding and non-intrusive. India also effected a change in the resolution, to add a paragraph that said “recalling Council resolutions 5/1 and 5/2 on institution building of the Human Rights Council”, so as to give it a context.

The resolution was adopted with 24 nations voting in favour of it. Fifteen countries voted against and eight abstained. Sri Lanka counted this as a victory. Adding 15 and eight, it contended that it had the support of 23 nations, while the U.S., “with its huge resources”, could only manage one vote more than it did.

A disturbing fact that showed up was that no Asian country voted with India. China, Bangladesh, the Maldives, Russia, Kuwait, Saudi Arabia and Indonesia were among the countries that voted against the resolution. India ended up voting with countries such as Austria, Belgium, the Czech Republic, Italy, Spain, Switzerland and Uruguay.

Soon after the vote, by way of explanation, India basically reiterated the essence of the joint statements between the two countries – broader dialogue and concrete movement towards meaningful devolution of powers, including the implementation of the 13th Amendment, and beyond. “We would also urge that Sri Lanka take forward measures for accountability and to promote human rights that it is committed to. It is these steps, more than anything we declare in this Council, which would bring about genuine reconciliation between all the communities of Sri Lanka, including the minority Tamil community,” the explanatory note said. Later, Manmohan Singh sent a letter to Rajapaksa detailing the Indian reasoning for the vote.

Reacting to the vote, Sri Lanka's Foreign Minister G.L. Peiris said the most distressing feature was that voting at the council was now determined not by the merits of a particular issue but by “strategic alliances” and “domestic political issues” in other countries. He was referring to the India-U.S. alliance and the compulsions posed by Tamil Nadu politics. After coming back to Colombo, he told the media on March 26 that the Indian announcement “made it difficult for many countries” to vote in Sri Lanka's favour. The Indian decision to announce its stand “altered the entire atmosphere”, “not just the arithmetic”, in Geneva.

In his first comments after the resolution against Sri Lanka was adopted, Rajapaksa was careful. While asserting that Sri Lanka would not tolerate any arbitrary interference in its affairs, he refrained from singling out countries that had supported the resolution. While thanking countries that voted against the resolution or abstained, Rajapaksa refused to make oblique references to India, unlike Peiris. Claiming that the government had done a lot “in a very short span without succumbing to pressure or influences”, he contended that “some elements were blind to this impressive progress in all sectors as their eyes were clouded by jealousy, hatred and petty interest”. In an oblique reference to human rights activists who had campaigned in Geneva, he asked: “To whom are they trying to send this message and for whose benefit are they working at such a crucial time for the country?”

While insisting that Sri Lanka would continue to seek domestic remedies for its issues, he did not elaborate if this meant that he would hasten the implementation of the LLRC report, a home-grown solution for the problems faced by the Tamils of the North. “Whatever the challenges, we would not allow the ugly head of terrorism to resurface,” he said.

While many of his Ministers were subdued in their comments, Minister Champika Ramawaka, belonging to the Jathika Hela Urumaya, criticised India. He wanted the government to give no economic or other concessions to India. Another Minister, Mervyn Silva, who has been on the margins of Rajapaksa's good books, blamed non-governmental organisations and some journalists for the defeat. He promised to break the limbs of journalists who betrayed their motherland.

Post-vote, it is this theme of “betrayal” and “conspiracy” that has taken centre stage in Sri Lanka. Government television channels repeatedly played visuals of three human rights activists who had taken up the cause of accountability – Paikiasothy Saravanamuttu, Nimalka Fernando and Sunila Abeysekera – and insinuated that they were traitors.

This forced the three to issue a joint press release, which said: “It is indeed regrettable that at a time in the history of our country when we have the opportunity to transform our society, to move from a post-war to a post-conflict phase, and to enjoy the support of the international community to rebuild a just, humane and prosperous Sri Lanka in which all its citizens can live together with peace and dignity, the government and its media have seen it necessary to launch into an unprecedented and utterly personalised attack against the three of us. There is no attempt to challenge us substantively on any point. None of the comments attributed to us were actually ever made by any one of us; there are many who were present at the side events where we have spoken who can testify to that.”

The ground situation in Sri Lanka

There is no sign of change in Sri Lanka. Its senior Ministers have made it clear that there can be no external solutions or external interference. On March 26, Peiris blamed the TNA's intransigence in naming its members to the PSC as the basic reason for the delay in arriving at a home-grown solution. The catch in the PSC is that all parties represented in Parliament will have to find a place in it. The TNA will be in a minority in this body. A solution coming out of the PSC will be incapable of addressing Tamil aspirations simply because of the nature of its composition.

Responding to queries on the approach the Sri Lankan government proposes to take post-Geneva resolution, Peiris said that Sri Lanka “will engage with the Human Rights Council as in the past but will resist any element of outside pressure”, which may “trigger unhelpful response in the country”. He said that Sri Lanka would be guided by the interests and well-being of the country. He contended that the U.S.-led resolution had put “more obstacles” in the reconciliation process than ever before.

Mahinda Samarasinghe, Minister for Plantation and the special envoy of the President of Sri Lanka on Human Rights, who was the head of the Sri Lankan delegation at Geneva, said that the country would participate in the UNHRC meeting which was due to be held in October-November 2012. The progress on the implementation of the human rights issue would be presented at the session, he said.

The government has already given the UNHRC the road map for its implementation. Minister Nimal Siripala De Silva, the Leader of the House in the Sri Lankan Parliament, who presented the LLRC report in the House, said that the LLRC had gone beyond its mandate and that careful consideration would be given before implementing its recommendations. The Minister wanted the TNA to participate in the PSC to evolve a national consensus on a political solution to the ethnic problem.