Sri Lanka

Sri Lanka Steps Carefully in Shaping Courts to Try War Atrocities

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Foreign Minister: Government Is Weighing Role of International Jurists

By: James Rupert

The Sri Lankan government expects to decide within six months the shape of special courts to address war crimes committed in the country’s 26-year civil war, its foreign minister said at the U.S. Institute of Peace. The courts will include “international participation”—with foreign professionals perhaps serving as investigators, judges or prosecutors—said Foreign Minister Mangala Samaraweera. But in a reflection of the political sensitivities of the post-war reconciliation effort, Samaraweera said the government will not specify the type of international role until it completes nationwide consultations now underway.

Samaraweera spoke after arriving in Washington for the first talks in what is slated to be an annual U.S.-Sri Lanka Partnership Dialogue. The Obama administration opened the dialogue process after Sri Lankan voters last year ousted President Mahinda Rajapaksa amid allegations of corruption and strong-arm rule, and elected a broader coalition headed by President Maithripala Sirisena.

“It’s only fair that the victims of the war would want some form of guarantee that the new courts will deliver justice and accountability in a fair manner.” –Sri Lanka Foreign Minister Mangala Samaraweera

Sirisena’s government is pursuing a broad process of reconciliation among the country’s ethnic groups, notably the majority Sinhalese and the minority Tamil community, which is concentrated in the north and east. Tamil leaders have echoed the urging of the United Nations High Commissioner for Human Rights and independent human rights groups that special courts for investigating and prosecuting war crimes include international professionals as well as local authorities.

Sri Lanka’s government has agreed with the UN Human Rights Council and independent analysts, such as those at the International Crisis Group, that the independence of Sri Lanka’s court system was undermined under Rajapaksa’s tenure and that it cannot credibly oversee justice or reconciliation in relation to war-time abuses.

“The horrific level of violations and abuses” in Sri Lanka’s war—including executions, kidnappings, torture, rape and the use of child soldiers—can be investigated and tried only by a system of special courts “integrating international judges, prosecutors, lawyers and investigators,” U.N. High Commissioner for Human Rights Zeid Ra’ad A -Hussein said in September as he released a detailed report on the atrocities.

Investigations by the United Nations, human rights groups and news media have reported abuses both by the army and by the main rebel group, the Liberation Tigers of Tamil Eelam. Tens of thousands of civilians are estimated to have been killed in the army’s final offensive against the rebels in 2008 and 2009.

But Sinhalese nationalists say they will not tolerate prosecutions of army personnel or officials of the former Rajapaksa administration. The former president’s son, Namal Rajapaksa, has called the plan for the special courts “a complete insult to the entire legal system in this country.”

How Big an International Role?

Samaraweera repeated the Sirisena government’s commitment to reform and reconciliation, in part by noting that the government co-sponsored the U.N. resolution last fall that called for the special courts. The courts are part of a plan to “strengthen good governance, foster reconciliation, promote human rights, establish accountability under the rule of law and ensure non-recurrence” of abuses, he said.

“Our government is totally committed to the successful implementation of this resolution … because we are convinced that Sri Lanka must, even at this late stage, come to terms with its past if we are to forge ahead and secure the future that Sri Lankan people truly deserve,” Samaraweera said.

Before designing the special courts, the government has assigned a task force of “eminent public figures” to lead a nationwide consultation of “all stakeholders, including victims on all sides,” Samaraweera said. “One of the reasons … is to decide on at what level that international participation ought to be,” he said. “It’s only fair that the victims of the war would want some form of guarantee that the new courts will deliver justice and accountability in a fair manner. And for that we are willing to consider the participation of international actors. They could be judges, they could be forensic experts, investigators, prosecutors.”

“We will look into all those options and come up with a court which is not only credible but also acceptable to the victims of the war. And we will work the final contours and architecture of such a court in the next five to six months after the consultations with the TNA [Tamil National Alliance] and other parties as well.”

Religious Extremism

Samaraweera conceded concerns, voiced notably among Sri Lankan minority groups, over the government’s plan to include religious leaders in the national reconciliation process. Tamil and Muslim spokespersons have voiced concern at the support of some Buddhist monks for Sinhalese nationalism or extremism through groups such as the Bodu Bala Sena (Buddhist Power Force). Sri Lanka’s Center for Peace Building and Reconciliation, a USIP partner organization, last week won the Niwano Peace Foundation’s annual peace prize for its work to oppose extremism through interfaith dialogue.

“Unfortunately, in Sri Lanka at the moment, there are certain persons who call themselves religious leaders who are far too busy fanning the flames of mistrust, distrust and extremism,” Samaraweera said. “But I’m glad to say that the most venerable [Buddhist] high priests of Sri Lanka as well as the leaders of the other religions are very enthusiastic” about ethnic peacemaking “and they certainly will have a role to play in the reconciliation process.”

Samaraweera discussed other elements of Sri Lanka’s struggle to recover from its war and achieve reconciliation. His points included these:

•The need for economic development. In stabilizing Sri Lanka, “all good intentions … will not succeed unless all stakeholders feel that their development has been cared for and their lives are improving,” Samaraweera said. “Therefore, winning the peace is just as much about jobs, education, health care and infrastructure for all Sri Lankans as it is about political reforms. The peace dividend must be felt in economic terms by all sections of Sri Lankan society.”

•Sri Lanka’s need for freer trade. Sri Lanka is seeking a free-trade agreement with India this year and is discussing an agreement with China, Samaraweera said. It is working to restore this year access to European markets that the European Union cut off years ago over human rights abuses in Sri Lanka’s war. But access to the U.S. market, Sri Lanka’s largest trading partner and the destination of a quarter of Sri Lankan exports, is critical. “Upgrading these ties by signing a free-trade agreement will go a long way in propelling Sri Lanka to achieving its economic development,” he said.

•Ending the army’s occupation and economic control of Tamil regions of the north and east. “Demilitarization … is a priority if we are to develop the north and east,” Samaraweera said. The military has returned to local residents “over 3,000 acres” of land, “and I believe that there is a further 600 acres to be released in the next few weeks.” And, he said, “the conducting of commercial activities by the army in many of those areas have also now been curtailed, and they have given us an assurance that even some of the running of hotels which the army is running in the north and east will be handed back to civilians by June.” On this, a Tamil member of the audience challenged Samaraweera, saying that the return of land and the reduction of the army’s presence has been exaggerated by military officials. “My brothers could not breathe in the north and east,” he said.

“There is a huge difference” in the pace of demilitarization during the year’s tenure of the new government, Samaraweera responded. While the military will not completely vacate the region, “we will ensure that the military presence will be the absolute minimum, finally. … That is an assurance I can give you.” He added: “Please come over and see for yourself.”