Gilberto Algar-Faria | The UN and Sri Lanka in Testing Times

Sri Lanka in 2015 and the (post) post-war regime

A lot has changed in Sri Lanka since the start of the year. Or has it? Only time will tell. In short, on 8 January 2015 presidential elections were held in Sri Lanka. It is believed that the then-incumbent president Mahinda Rajapaksa had called the elections early for strategic reasons (a similar snap election had worked in his favour in January 2010). And he had an obvious motivation to do this, too, because at the same time an inquiry by the UN Human Rights Council was ongoing, and due to conclude in March 2015, which it… didn’t do. We’ll return to this later.

Rajapaksa is not just one person: he is practically an institution, backed by a significant supporter base and commensurate finances. Therefore, whilst nobody was surprised that the elections were called in January 2015, it was to everyone’s surprise that he lost, and furthermore he lost to a much less well-known candidate, Maithripala Sirisena. Sirisena, who had only decided to stand for election two months prior, had been backed as a common candidate by activists across Sri Lanka, particularly on social media, a phenomenon nicknamed the ‘silent revolution’. However, the jury is out on Sirisena for now.

Given that he was a cabinet minister throughout Rajapaksa’s presidency, Sirisena was not exactly a political outsider to the dinner party. At the very least he’s been standing in the hallway with a bottle of wine. With Rajapaksa kicked out into the rain, the former president tried making a bid apparently to become the next Prime Minister of Sri Lanka, while Sirisena seemed confident that he would fail—“Mahinda Rajapaksa who was defeated on 8 January will be defeated again… I don’t need to read the stars to know that, the future can be predicted based on history”.

It seems that Sirisena has been doing a fair bit of star-gazing, as last month the United National Party (UNP) won the most seats—although not technically a majority—in the parliamentary elections, thereby preventing Rajapaksa from returning to power. Rajapaksa is now a Member of Parliament, but the meagre number of votes he received will keep him on the opposition backbenches, far from the premiership which was retained by the UNP’s Ranil Wickremesinghe. If Rajapaksa had become PM, he and Sirisena would have sat uncomfortably together at the table. But with that eventuality and horrific series of dinner party analogies done and gone, one of the key tests remaining for the present government will be the human rights accountability of the new regime, which concludes this month.

The Government of Sri Lanka has for quite some time been embroiled in questions about alleged human rights abuses committed by both the Sri Lankan military and Tamil Tiger militants during their 26-year war, especially in its closing stages from January to May 2009. Particularly, the United Nations (UN) has been pursuing information on the circumstances of civilian deaths; it estimates that approximately 40,000 civilians were killed during the final months of the war [PDF, 9.6 MB] largely due to shelling by the Sri Lankan military. The UN is presently investigating the period 21 February 2002 until 15 November 2011, so the investigation also takes interest in the human rights situation in the post-war environment. The Government of Sri Lanka under Rajapaksa straight up refused to cooperate with the UN on this, but Sirisena has indicated that he will cooperate to an extent. However, he has also ruled out the possibility that any senior political leader might be prosecuted for war crimes.

A human rights health check

I’ve got to warn you now, there are a lot of acronyms in this section. If you don’t want to know the result, look away now. If the UN Office of the High Commissioner for Human Rights (OHCHR) was a person, Sri Lanka would be its personal trainer. OHCHR has been put through its paces since the end of the war, desperately trying to nail down the evidence about what happened, both complimenting and reprimanding the Government of Sri Lanka (GoSL), encouraging domestic inquiries compliant with international standards and conducting its own external investigation without Sri Lankan cooperation, giving the GoSL deadlines and changing them. But Sri Lanka has been more than a fitness session for the UN; it has been a health check for the global human rights regime as a whole. And it has left observers wondering, what can the UN actually do to Sri Lanka, apart from chastise the previous Government and specific actors?

The International Criminal Court (ICC) is often the direction in which human rights advocates point their collective antennae when they want to prosecute those found guilty of war crimes. If any guilty verdicts emerged from the ongoing investigation, however, the ICC would struggle to prosecute. This is because while Sri Lanka is a signatory to the Geneva Conventions (which prohibit war crimes), it is not a signatory to the Rome Statute (required in order for the ICC to have jurisdiction over any given country). This is one of the key weaknesses of the global human rights regime: in order for the ICC to prosecute individuals for war crimes, their respective states must have effectively volunteered for such prosecution, although there is one alternative to this requirement.

The UN Security Council has the power to bring states before the ICC forcibly, but this is unlikely given that China has a vote on the Security Council, and let’s face it, China only does the ‘rights’ thing where it intersects with the selfish thing. China’s geopolitical interests in the region dictate that it is contending with India for control of the Indian Ocean’s trade routes, and with the Government of Sri Lanka happily increasingly buying-up Chinese loans and deepening ties over the past few years, there is little incentive for China to let this relationship fall apart. So we can infer that the UN is unlikely to be able to force Sri Lanka to do really anything, regardless of the conclusions in its forthcoming report this month.

As I mentioned, the UN has recently stayed the release of its report on its external investigation by six months, which will now be published instead in September 2015, which is, er, this month. This is due to hopes that further evidence might be gleaned given the potential cooperation of the new Government: “the changing context in Sri Lanka, and the possibility that important new information may emerge which will strengthen the report,” said Zeid Ra’ad al-Hussein, the UN High Commissioner for Human Rights, earlier this year. This reminds us that while the UN is able to conduct an investigation without the assistance of the state being investigated, it helps if they do have such cooperation. Meanwhile, human rights actors in Sri Lanka are rarely given the limelight they deserve: there is a lot of hard work going on within Sri Lanka, and this is often lost in the debate over the effectiveness of the UN.

Concluding remarks

In all of this, what will the UN’s investigation produce? What is new and exciting about the external report? Well, forget its potential as a basis for prosecution. But if we’re going to see any kind of accountability at the domestic level in the near future, then a credible basis of knowledge and fact is essential, and that is exactly what the external investigation is likely to provide in abundance. Through the OHCHR’s report, it is possible that we can finally move beyond the polarised debate about the personalities on both sides, and discuss instead the details of what happened in Sri Lanka between 2002 and 2011. The challenge remains that the report may be seen as biased, especially within Sri Lanka, but this is exactly what must be overcome, as ultimately accountability will only be achieved through a hybrid of international and domestic mechanisms.

Biography

Gilberto Algar-Faria is a PhD Candidate in Politics at the University of Bristol. He is also a Research Associate at the Foreign Policy Centre and a Country of Origin Information Expert for Sri Lanka and North Korea at the IRRI Rights in Exile Programme. His latest publication is a chapter entitled ‘Terrorism and Ethics’ in the edited textbook Terrorism and Political Violence (London: SAGE, 2015). He is available via email at g.j.algar-faria@bristol.ac.uk or Twitter @AlgarFaria.