Featured image courtesy UN / Jean-Marc Ferré

The recent activity in Geneva around High Commissioner Zeid’s oral update on Sri Lanka illuminated an interesting dynamic with respect to accountability in Sri Lanka. The noticeable pull back from the terms of HRC Resolution 30/1 by a section of the Sri Lankan establishment was met with an equally noticeable push back from sections of the international community. As I argue in this piece, this dynamic could—if allowed to fester—grow into a more far reaching diplomatic challenge for the Sri Lankan state over which it would have little control. I argue further that the only adequate antidote is meaningful but sensible action on accountability in the short to medium term.

When Ambassador Ravinatha Aryasinha signed on the dotted line to co-sponsor a historic HRC Resolution in September 2015, it was clear that the government in Colombo had agreed to its terms. While the Prime Minister is understood to have directly involved himself in negotiations over the final text, the President’s conduct subsequent to the passage of the Resolution made clear that he himself was in agreement with its contents. The President returned from New York to Colombo after the passage of the Resolution to a hero’s welcome by his supporters. His subsequent support for the resolution in a two-day debate in Parliament laid to rest any question regarding his assent to the text. Subsequently, perhaps sensing that the diplomatic space to unilaterally renegotiate the terms of the Resolution, he has sought to renege on the government’s commitments, stipulating that no foreign judges would function within the proposed special judicial mechanism.

Buoyed by President Sirisena’s opposition to foreign judges—only one aspect of a series of commitments regarding the special court—some have since sought to argue that Sri Lanka should either completely abrogate or delay implementation of the Geneva consensus dealing with accountability. The Joint Opposition and the Rajapaksa camp, principally in the form of MP Dinesh Gunawardena and Dr. Dayan Jayatilleka, have expressed complete opposition to the very idea of a special court. There is, however, some evidence that those closer to the ruling establishment and the United Nations apparatus in Sri Lanka also share a sense of aversion to the terms of the resolution. For instance, Dr. Ram Manikkalingam who is a member of the Office of National Unity and Reconciliation penned an article—to which I have previously responded—arguing that “a war crimes court should not, at the present time, be the top priority, as it appears to be for the international community.” A recent “Context Assessment Report” commissioned by the UN Country Team in Sri Lanka and authored by Dr. Nishan de Mel and Dr. Rajesh Venugopal similarly talks down the importance of criminal trials for international crimes: a position ostensibly at odds with that of the United Nations and indeed the Government of Sri Lanka! From Jayatilleka and Manikkalingam to de Mel and Venugopal, it is now clear that some within Sri Lanka’s Colombo intelligentsia and establishment are distinctly uncomfortable with the terms of Resolution 30/1 on accountability, and are seeking to influence government and UN behaviour against it. This is not to say that all establishment opinion makers are opposed to accountability. Liberal civil society groups within the country, as well as other progressive voices for ethnic reconciliation have not only championed Resolution 30/1, but resolutely urged government to implement it.

If antipathy to the Resolution is evident in Colombo, Geneva offered a stark contrast. In his oral update, High Commissioner Zeid eventually broke a studious silence he had maintained since President’s Sirisena’s rejection of foreign judges. In a politely worded diplomatic rebuke, he stated:

I remain convinced that international participation in the accountability mechanisms, as stipulated in the Human Rights Council’s resolution, would be a necessary guarantee for the credibility, independence and impartiality of the process in the eyes of victims given the magnitude and complexity of the alleged international crimes…

This notion of international participation as a necessary guarantee of credibility—and therefore an indispensable part of any meaningful accountability process—has also been asserted by the US government in Geneva. Ambassador Keith Harper—who in September 2015 was willing to push the Sri Lankan government much further than his other colleagues in the US State Department were—tweeted in January 2016 that: “For Sri Lanka – credibility of any accountability mechanism requires involvement of foreign judges etc. That has and will not change.” Last month, in response to the High Commissioner’s oral update, speaker after speaker from Netherlands on behalf of the European Union, Switzerland, Macedonia, the United Kingdom, Norway, Denmark, Canada, New Zealand, Estonia and Ireland took the floor to remind Sri Lanka of the importance of an accountability mechanism, with more than a few highlighting the importance of international participation in that mechanism.

There were many words of encouragement, there were many words of concern regarding the lack of progress in the day to day lives of people in the North and East, but there was also a resolute demand for full implementation of Resolution 30/1 from the same quarters who fought and won that text.

Closer home, even the usually equanimous Hindu editorial sounded an alarm, noting that:

“Having set in motion the process for a new Constitution and measures for reconciliation and reform, any loss of momentum now on the part of the government will result in a loss of credibility.” MP Mavai Senathirajah, a TNA leader who worked hard to convince more radical elements within the Tamil community to accept the Geneva consensus, has also warned that “[i]f the UN resolutions are ignored by the Sri Lankan government even after the report submitted by the High Commissioner of the UNHRC, then we will be in a position to decide on staging continuous protests.”

Given this background, the consequences of indefinite delay or failure to ensure adequate international participation in establishing a special court are clear. If there is a sense that the government has fudged the question of justice, it will pay a heavy price in terms of credibility. This loss of credibility will soon jeopardize the international goodwill on which the government’s economic strategy is predicated. If progress is not visible and the international press and human rights INGOs adopt a more stridently critical attitude towards Sri Lanka, Western governments and investors will eventually follow. Without economic prosperity, Yahapalanaya will inevitably run into electoral trouble. Thus, regime survival is in the long run ensured by fulfilling government commitments, not by ignoring them.

Winning support in the South for war crimes trials against members of the military will not be easy, and no one expects dozens of trials in the following months. What is expected however is that the government manifests an intention to set in motion a credible mechanism to deal adequately with an entrenched culture of impunity. This means establishing the necessary legislation for a special court and a special prosecutor to try international crimes, even if these mechanisms address the “low-hanging fruit” of politically unpopular perpetrators in the early years of its functioning. It means communicating the importance of at least some trials, and actively countering a barrage of misinformation on Transitional Justice by those opposed to reconciliation. And it also means negotiating honestly with all stakeholders including Tamil leaders on the contours of the special court and the degree of international participation enabled.

The value-based arguments for dealing with the past and ensuring accountability have been extensively made in the past. The discussion on Sri Lanka in Geneva demonstrates that the government has an equally compelling reason to move decisively—albeit wisely—in advancing accountability. If there is one thing Colombo’s intelligentsia opposed to accountability must learn from last month’s events in Geneva, it is that they should not stand in the way of the diplomatic rehabilitation of Sri Lanka, and in turn its economic revival.