Sri Lanka’s bloody twenty-six year civil war is over. The Sri Lankan government, led by President Mahinda Rajapaksa, can rightfully claim a resounding military victory over the Liberation Tigers of Tamil Eelam (L.T.T.E.). It would be misleading, however, to call Sri Lanka a post-conflict society. There is no question that the underlying tensions of the conflict remain.
Sri Lanka is a diverse country with historical ties to five ethnic groups (the two largest being Sinhalese and Tamils) and four religions: Buddhism, Hinduism, Islam and Christianity. Sinhala and Tamil-speaking people have occupied the island for more than two thousand years. Historically, political disagreements have been based on religion. The political marginalization of the Tamil people (Sri Lanka’s largest ethnic minority) lies at the heart of many conflicts.
While Sri Lanka gained independence from the United Kingdom in 1948, tension over ethnicity and the creation of an official language in the country began to fester decades before liberation. In the decades following independence, violence erupted sporadically and the perception (amongst Tamils) that the government favored the Sinhalese (the country’s ethnic majority).
The recent civil war between the country’s Sinhalese majority and Tamil separatists was fought largely over questions of federalism, the devolution of power from the country’s central government to local governments, and the L.T.T.E.’s desire for a separate state. Most of the fighting occurred in the country’s North and East, although the L.T.T.E. also launched various attacks in Colombo, the nation’s capital in the south.
Today, the Sri Lankan government refuses to mention human rights. As such, the regime sees everything through the prism of “national security.” Talking about minority rights, human rights, documenting human rights violations (both past and present), and educating Sri Lankans about the basic principles of human rights are not priorities for President Rajapaksa and the United People’s Freedom Alliance (U.P.F.A.). (Rajapaksa was first elected in 2005 and then won reelection in 2010).
Even though the war ended, the country’s North and East remain heavily militarized. Because of the war, many families in the North are now female-headed households, making some families especially vulnerable; many women now have to worry about their more traditional domestic duties while also figuring out how to earn enough money to provide for their families. Furthermore, with development projects in the North currently focused on infrastructure (like road-building), few jobs are even suitable for women. Reports of violence against women, sexual harassment, and rape are not uncommon. In many cases, Sri Lankan soldiers are the alleged perpetrators.
In 2009, the government created the Presidential Task Force (P.T.F.). Ostensibly, the P.T.F. is supposed to coordinate all reconstruction and development in the North. According to the Sri Lankan government:
Mainly the Task Force is subjected to coordinate activities of the security agencies of the Government in support of resettlement, rehabilitation and development and to liaise with all organizations in the public and private sectors and civil society organizations for the proper implementation of programs and projects.
But what does the P.T.F. actually do?
Mostly it is through the P.T.F., which is run by the Ministry of Defense, that all humanitarian and reconstruction work in the North is approved. Since June of 2010, the N.G.O. Secretariat has also been run by the Ministry of Defense; it is the N.G.O. Secretariat that approves plans for development projects. While the P.T.F. is widely regarded as a more influential body, the P.T.F. and the N.G.O Secretariat both ensure that implementing development projects in northern Sri Lanka is difficult.
Essentially, the Sri Lankan government sees robust economic growth as the only way to address the long-term grievances of the Tamil people.6 Following the East Asian model of development, the government looks to previous successes of economic growth in places like South Korea and Taiwan for guidance. When it comes to reconstruction in post-war Sri Lanka, the military, rather than, say, technocrats, has its hands in practically everything, from infrastructure to tourism and even to Colombo’s “urban renewal” programs.7 Those involved in development, humanitarian, and human rights work have now grasped the distinction between “hardware” (building latrines, schools, infrastructure, and other initiatives, which produce tangible outputs, or are focused solely on income generation) and “software” (counseling, psychosocial efforts, human rights education). While hardware is frequently approved through this convoluted, burdensome, regulatory environment, software rarely gets passed. Consequently, many traumatized people are not getting the help they so desperately need.
In May of 2010, the Sri Lankan government established a Lessons Learnt and Reconciliation Commission (L.L.R.C.), to look into allegations of war crimes and other human rights violations that occurred during the civil war from February 2002 to May 2009. But this is not good enough. United Nations Secretary-General Ban Ki-Moon is not the only person who is “concerned” that Sri Lanka might have some human rights issues. Transparency International, Human Rights Watch, the International Crisis Group, and others have already exposed the L.L.R.C. for what it really is: a useless government-supported body that is anything but credible. President Rajapaksa, for one, handpicked all eight Commissioners. Even worse, some of the eight Commissioners used to be government employees that back the Sri Lanka government and deny that war crimes were committed by state security forces during the civil war.
To be clear, human rights violations were committed by both sides—government security forces and the L.T.T.E.—during a war that left up to 100,000 people dead. But Rajapaksa’s regime does not want to examine the past; he and his family members are too busy venerating themselves and others for defeating the “terrorists.” From May 31 to June 2, 2011 in Colombo, the government held its “Seminar on Defeating Terrorism: The Sri Lankan Experience. Fifty-four countries, including the United States and China, were invited to attend. The conference was intended to show other states how Sri Lanka defeated the L.T.T.E. and to teach counterinsurgency tactics learned from the experience.
President Rajapaksa, a charismatic leader, frequently includes rhetorical flourishes related to the threat of terrorism in his speeches. At a speech delivered at the United Nations General Assembly on September 23, 2011, for example, he stated: “The most significant challenge to stability and progress in the modern world is posed by the menace of terrorism.” He went on to claim that “after three decades of pain and anguish, today, Sri Lankans of all ethnicities, living in all parts of Sri Lanka, are free from L.T.T.E. terror and no longer live in a state of fear.”President Rajapaksa went on to discuss economic development initiatives in the North, something he frequently likes to do.
Aside from all of this, the government is building a number of war memorials along the A-9 road, which runs from Vavuniya to Jaffna in Northern Sri Lanka. This is in addition to the large number of Buddhist temples, which are also being built in the North. It is unclear why Northern Sri Lanka (where the vast majority of people are Tamil and the predominant religion is Hindu), would need a large number of Buddhist temples. “Rubbing it in” does not begin to describe what is happening.
Nepotism within the Rajapaksa regime is notable as well. While not inherently pernicious, it is unlikely that such favoritism contributes to lively debate or a rigorous, balanced examination of policy at the highest levels of government. Several of the president’s brothers run significant government ministries, including the increasingly powerful Ministry of Defense and the Ministry of Economic Development. Other political appointments and favors have been made for a number of other relatives.
The situation in post-war Sri Lanka becomes more complicated when analyzing things like material wealth and economic prosperity. Without question, a huge portion of the population is better off now than they were during the civil war, including ethnic minorities. In Sri Lanka, military employment is up. Remittances, mostly from the Middle East are flowing back into the country. Certain sectors, like industry and agriculture, are doing quite well. This will likely bring food prices down, which goes a long way toward helping the country’s poor. And tourism, an industry that Sri Lanka relies heavily upon, will probably continue to do well. And so, there are material reasons for ordinary people to back the current regime; the support is not all just propaganda.
Yet some of these shifts are just general trends, the natural result of peace finally settling over the land. In Colombo, people feel much safer traveling on buses than they have for thirty years. This “peace component” really matters. The problem is that all of the previously mentioned economic trends capture general, broad trends, which are not necessarily reflective of gains in human rights (which are a question of individual liberties). A majority of the country might be better off in post-war Sri Lanka, but if ten or twenty percent (or perhaps an even greater percentage) of a population of twenty million is much, much worse off than they were during the civil conflict, can people really claim that the situation in post-war Sri Lanka is getting better?
A History of Emergency
Few countries have more history with emergency laws than Sri Lanka. The country’s experience with such decrees goes back to 1947 when, during the final days of British rule, the fading colonial power passed the Pubic Security Ordinance (P.S.O.) in an attempt to suppress political dissent on the island. Since that time, the P.S.O. has given the president the authority to announce states of emergency whenever he sees fit. Over the years, some presidents have added to the original laws, widening the scope of executive power. In the event of a conflict, Emergency Regulations, which are passed by the president without need of parliamentary approval, supersede other existing laws.
Sri Lanka has been governed under Emergency Regulations for most of the past thirty years. The emergency laws facilitated the establishment of military checkpoints throughout the country, where governmental authorities were given sweeping powers to search and detain suspects. A suspect could remain in a detention center for up to 21 months without appearing in a court of law. The laws even allowed for people to be displaced from their land.
These laws have been controversial. According to Human Rights Watch:
Sri Lanka’s emergency regulations granted the authorities sweeping powers of search, arrest, and detention, which have led to serious human rights violations, including arbitrary detentions, torture, and enforced disappearances. Thousands of people have been detained over the years in official and unofficial detention centers under emergency regulations, many without charge for years, in violation of international law.
Recently, these regulations were lifted, which sounds like a step in the right direction. This is not necessarily the case.
Sri Lanka’s Attorney General Mohan Peiris has been quoted in numerous publications regarding the new regulations put in place under the Prevention of Terrorism Act. Created in 1979, the P.T.A. became permanent law in 1982. Essentially, the P.T.A. curbs citizens’ civil and political freedoms under the auspices of fighting terrorism and combating political violence. Initially intended to be temporary, the P.T.A. has been anything but. The important thing to remember is that the Emergency Regulations and the Prevention of Terrorism Act have given the government two separate (although similar) legal frameworks to justify systematic human rights violations perpetrated against Sri Lankan citizens for decades.
The new laws the government introduced prove that nothing has really changed. Officially, these new laws were introduced on the 30th of August of this year, the very same day the State of Emergency was lifted. These news laws were most of the Emergency Regulations which, instead of being categorized as Emergency Regulations, now fall under the auspices of the P.T.A. Unfortunately, the government’s mandate to enforce such laws is, at best, ambiguous.
According to Section 27(2) of the Prevention of Terrorism Act:
Yet these new regulations were not gazetted for more than a week. Moreover, a later date was not specified in the legislation. The new laws were finally gazetted on September 8th, but these details matter little.
About 6,000 detainees surrendered in May of 2009, during the last weeks of the civil war, most of whom were sent to detention camps immediately after they surrendered. Many of them stayed there for four or five months, some closer to a year. After such time, military personnel usually decided that surrendees must be moved to rehabilitation centers, in order to prepare to be reintegrated into society. But once a surrendee entered a rehabilitation center, Emergency Regulation 22 was immediately enforced, meaning that they might be stuck “rehabilitating” themselves for as long as two years.
These 6,000 detainees appear to have entered a legal purgatory of sorts. As mentioned, Emergency Regulation 22, which was the only law applied to these people, says that surrendees may be held in “rehabilitation centers” for up to twelve months, with an option to extend detention for an additional year. This regulation falls under the P.T.A., under which the state is not even obligated to allow the defendant to appear in court until that individual has been detained for 18 months.
But that Emergency Regulation, along with all the others, had been annulled. For weeks, then, these detainees were held under forthcoming laws, which did not yet exist. It is important to understand exactly what the Sri Lankan government has done here. Officials have announced that the Emergency Regulations have been done away with permanently. At the same time, however, they have included most of those regulations under Sri Lanka’s Prevention of Terrorism Act, which is still be being used to violate people’s fundamental human rights on a daily basis. The regime is hoping that people will ignore the obvious fact that, with regard to the protection of individual liberties and human rights, nothing has changed.
Brad Adams of Human Rights watch has noted that the end of the state of emergency is insignificant if the government retains the same authority it had during the civil war. Adams further asserts that, “The government should repeal all its abusive detention laws and make all laws and regulations related to detention public, instead of engaging in token measures for PR purposes.”
Again, the notion that the government thinks it wields the authority to interpret 27 (2) so widely is absurd. Arguing that these actions are okay because the new laws will be gazetted in the near future is insufficient and just plain wrong. Attorney General Peiris retired at the end of August, but the principles the he and others have espoused remain in place. The government has yet to address this issue candidly. They do not need to do so; Sri Lanka is a democracy in name only.
Sri Lankans (and the international community) now know that the lifting of the Emergency Regulations augured little but cosmetic change. As such, perhaps Rajapaksa’s regime was a little nervous about the United Nations Human Rights Commission (UNHRC) meetings in Geneva, which commenced in mid-September.
Looking Ahead: Policy Options for the International Community
On September 1, the U.S. State Department encouraged the Sri Lankan government to do one of two things: either charge those 6,000 detainees or let them go. Mark Toner, State Department spokesman, also said that the U.S. government was still studying the recently announced legislation and declined to comment further. What remains unclear is how much the U.S. and other countries can castigate Sri Lanka about its shoddy human rights record. The U.S. government may not hold much sway, however, because it has not invested that much in Sri Lanka. (American aid has traditionally gone directly to N.G.O.s, not to the Sri Lankan government).
Besides, getting Russia and China to go along with a U.N. Security Council Resolution (about anything related to human rights in Sri Lanka) would be difficult. Perhaps the issue needs to be debated at the U.N’s general assembly. For that to happen, though, far more member countries must speak up. Thus far, that too seems unlikely—but that does not mean Sri Lanka will fall off the radar. The fact that the L.T.T.E. was declared a terrorist organization by the U.S., Canada, and the European Union, among other countries makes this situation especially tricky. (This designation occurred largely because of suicide attacks and other instances of indiscriminately targeting civilians). If the Tamil Tigers had played a little nicer during the war, Western countries would be far less reluctant to excoriate Rajapaksa’s regime on human rights. The U.S. and others may be waiting for the Lessons Learnt and Reconciliation Commission to deliver its report before really putting the pressure on the Sri Lankan government. This means that a strong push for an international inquiry would not take place until December 2011, or the beginning of 2012 at the earliest. (The U.N. Human Rights Council’s 18th session ended on September 30th.)
While a strong push to hold Rajapaksa’s regime accountable for war crimes has not materialized, readers should not think that the issue is anywhere near over. The Sri Lankan government still has plenty to worry about. This was only round one; the UNHRC will reconvene in March of 2012. Critics of the regime will be more organized and, probably, more outspoken at that time.
The U.S.’ contradictory stance on human rights (and American foreign policy more generally) are well known. Nevertheless, the United States can get this one right: the U.S. should heed the calls of international human rights groups and come down hard on Sri Lanka. A credible body must look into allegations of war crimes. The Prevention of Terrorism Act needs to be repealed immediately. Military employment must come down; the war is over. On a more personal level, two of President Rajapaksa’s brothers, Basil and Gotabaya, are American citizens, so U.S. laws are applicable to them.
President Rajapaksa, Mohan Peiris, and others are fooling no one. But make no mistake: Sri Lanka is not China; many world powers are in no hurry to curry favor with the Rakapaksa regime. If the government continues to ignore human rights and to repress its own people, it is unlikely that the international community will look the other way. Sri Lanka will not placate the West with facile sleight of hand; it is naïve for those running the show in Colombo to think otherwise.
In short, genuine national reconciliation in Sri Lanka remains illusory. The L.L.R.C. is not an accountability mechanism. In spite of a few conciliatory statements, the Rakapaksa regime is not interested in collaborating with other political groups or minority parties. When it comes to the most intractable problems, a country loaded with ethnic tension is not making much progress.
What happens in Sri Lanka over the next five years might have a lot to do with the way the country looks for the next three decades. As mentioned, the current administration is still quite popular across broad swathes of society. And Sinhalese nationalism is on the rise; which is worrisome. The government maintains a firm grip on most media outlets, many people are afraid to speak out, land issues have not been resolved, parts of the judicial system are a mess, many formerly displaced people are still unemployed, the rule of law is not applied impartially, and minority rights are a big problem (and will continue to be for the foreseeable future). Sadly, for so many in Sri Lanka, things might get worse before they actually get better.