Mangala Samaraweera, Sri Lanka's Foreign Minister, is a persuasive and very probably sincere man. On Monday, he delivered a keynote speech to the opening session of the UN Human Rights Council in Geneva in which he spoke of reconciliation, hope, and a peaceful future for all the people of Sri Lanka after their terrible quarter -century-long civil war which ended in 2009.
But there is a huge problem here. And that problem is a yawning gulf between the message coming out of the government of Sri Lanka when it is facing the rest of the world—and the message it gives when facing the Tamils in the former war zones of the North. Unless the members of the United Nations Human Rights Council (UNHRC)—and in particular the government of the United States—make an effort to understand that gulf, all the genuine movement towards truth and justice over the past couple of years may come to nothing.
Eighteen months ago, the UNHRC voted to establish an international investigation focused on the allegations of terrible war crimes and massacres committed at the end of the war in which tens of thousands of Tamil civilians died—most killed by government shelling, though the rebel Tamil Tigers too are accused of committing war crimes.
On Wednesday that report will be made public. That's the easy bit. Because then the Human Rights Council has to decide how best to ensure accountability for those crimes. The argument is simple, but intractable. The government of Sri Lanka—under its new president, as under its last—says it will only contemplate a domestically-run accountability process, with international involvement limited to "technical assistance" from the UN. It says that such a process can be fair and independent and that the victims should trust it.
They don't. Indeed the Tamil victims in the former war zone fear such a process would constitute little more than "victor's justice" and would not just fail to be independent or impartial; it would not even be safe to testify to. Instead, they call for an accountability process under international control.
So why do they so distrust the promises of this new government—a government which has indeed made significant moves to end the repression and corruption of its predecessor? After all, the Foreign Minister spoke on Monday of "achieving meaningful reconciliation… and confidence building among communities affected by conflict."
It began even before Maithripala Sirisena's victory in January this year. In a pre-election interview with The Daily Mirror (a Sri Lankan newspaper), Sirisena boasted: "I was the minister in charge during the last two weeks of the war in which most of the leaders of the LTTE were killed." That was also the period when some of the worst atrocities, the rapes, extrajudicial executions, and widespread disappearances were reaching their climax.
After his election, Sirisena promoted General Sarath Fonseka—who was the army's commanding officer for the last years of the war when the worst atrocities were committed—to field marshall, the highest rank possible.
He also appointed Lieutenant General A. W. J. C. De Silva as army commander. De Silva was previously president of a so-called "Military Court of Inquiry" set up by President Rajapaksa to look into the allegations of civilian killings. To some international derision, De Silva's court "conclusively established that the Humanitarian Operation [the term used by the army to refer to the last bloody months of the war] was conducted strictly in accordance with the 'Zero Civilian Casualty' directive made by His Excellency the [then] President Mahinda Rajapaksa."
But perhaps Sirisena's most remarkable act was the promotion of Major General Jagath Dias. During the war, Dias was commander of the Sri Lankan Army's 57th Division, accused of responsibility for some of the worst war crimes in the final weeks of the conflict. After the war, he was dispatched by then President Mahinda Rajapaksa to Europe to become Sri Lanka's ambassador to Switzerland, Germany, and the Vatican, only to be withdrawn amid controversy over the war crime allegations.
He is seen as one of the people most likely to face investigation in any accountability process. Yet in May of this year, Sirisena appointed him Chief of Staff of the Sri Lankan Army. For the Tamils of the North and East, living under what is in effect a military occupation (most Sri Lankan military forces are stationed in the predominantly Tamil former war zone), this was seen as a shameless act of intimidation—and yet more reason to distrust the president's insistence that he could be trusted to establish a genuinely independent domestic accountability process.
On Monday, members of the Human Rights Council nodded sagely in Geneva as Foreign Minister Samaraweera spoke of "the necessity of reaching a political settlement that addresses the grievances of the Tamil people." They nodded their heads in acknowledgement of Samaraweera's observation that "from May 2009 post-conflict reconciliation eluded us as a result of … the triumphalist approach that was adopted immediately following the end of the conflict."
But just a week earlier, President Sirisena himself had delivered exactly such a triumphalist keynote speech in Sri Lanka—loyally reported by the government's official website. In it he simultaneously attacked the political aspirations of the Tamils for some kind of federal solution to the national question and unconditionally praised the armed forces, many of whose commanders and members are accused of war crimes.
It is worth taking a look at the report of Sirisena's speech, which records how he spoke emotively of "the Motherland" and pledged he "would not allow anybody to divide the country which was united by the valiant war heroes shedding their blood."
That is what the Tamils hear, not the emollient tones of a Foreign Minister trying to get the international community off his back.
And as if to drive the point home, just two weeks ago, the army conducted what it called "riot control" exercises in the heart of the Tamil areas of the former war zone. The message was clear. While Samaraweera was assuring the rest of the world they were determined to work towards reconciliation and confidence building measures, the army was delivering a very different message to the Tamils of the North and East.
And it was noticeable that Samaraweera did not mention such critical issues as how they would consult or hear evidence from the thousands of exiled victims living in fear outside the country. There was no mention of incorporating internationally recognized crimes like war crimes and crimes against humanity into the Sri Lankan penal code. If you don't even recognize these crimes how can you prosecute them?
These are all warning signs that the UNHRC—and the government of the United States—cannot afford to ignore.
The United States declared last month that at the upcoming Human Rights Council meeting it will support a "consensus resolution" with the government of Sri Lanka on what should happen next in the search for justice. At the same time the Sri Lankan government made it absolutely clear that the only thing it will agree to is a domestic process.
The horse-trading on the precise wording of that resolution will begin in earnest on Monday in a series of "informal" discussions on the wording. But amid the talk of realpolitik and anxious but unstated references to geo-strategic considerations (of which the key one is that this government, unlike the last, is decidedly pro-West), members of the Council would do well to remember some basic principles.
The aim of transitional justice procedures is not just to address past crimes, but to ensure sustainable peace, justice and reconciliation. Simply put, it should prevent such crimes from happening again. For that to happen, the victims must be involved in the design of the mechanism; they must support it and have confidence in it. If they don't support it and invest in it, they will not accept its findings and it will have absolutely no value at all. It will not lead to peace. That is a principle understood and accepted by the UN.
In April of this year, on his return from Sri Lanka, the UN's Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, Pablo de Greiff, observed: "Citizens cannot be simply presented with 'solutions' in the design of which they were given no role… transitional justice measures depend, to a large extent, on the willingness of victims and others to participate."
Ironically, Samaraweera himself yesterday seemed to acknowledge that principle. He said that various proposals for transitional justice and political reform "will be evolved and designed through a wide process of consultations involving all stakeholders, including victims."
But in practice there has been only one high-profile consultation so far. Last week President Sirisena, Prime Minister Ranil Wickremasinghe, and Foreign Minister Samaraweera himself took part in high level discussions with the commanders of all three wings of the armed forces. These talks—with the commanders of the forces accused of committing so many of the crimes—were described as an "initiation" of the process to "reach an agreement as to the best mechanism or the mechanisms to be adopted to handle the outstanding issues of accountability."
The victims do not trust a domestic process. That is a simple fact. The regional representative body in the former war zone, the Northern Provincial Council recently voted, unanimously, to reject proposals for a domestic inquiry. A popular signature campaign—on-going despite reports of intimidation by the security forces—is calling on the Human Rights Council to support an international process.
It is difficult to avoid the conclusion that if the Human Rights Council—in a resolution led by the US government—were nonetheless to vote to endorse a purely domestic process, it would represent not just a betrayal of the clearly expressed wishes of the Tamil victims in the North and East, it would also represent a betrayal of the principles of the UN.
It would also be an inexcusable waste of a precious chance to move towards a process of truth, justice, and reconciliation which would benefit all the communities of this beautiful island.