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Securing Peace and Human Rights in Sri Lanka

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The stunning and much deserved defeat of the Liberation Tigers of Tamil Eelam (LTTE) by the Sri Lankan army is as swift as it is rare in world history. Rarely has a government won so decisive a military victory against a long-running domestic armed group. The closest parallels to it are perhaps the defeat of the Khmer Rouge by the Cambodian government and the defeat of the Shining Path guerillas by the Alberto Fujimori government in Peru, both in the 1990s. The first blow against the Khmer Rouge came when the UN conducted elections successfully in Cambodia in 1993, among the population living in the non-Khmer Rouge areas, which constituted a majority. That was followed by an amnesty law in 1993, which weakened the Khmer Rouge by weaning away many soldiers and commanders to the government's side. The death-knell was sounded when Ieng Sary, 'brother number two,' split from Pol Pot in late 1996 with a sizeable armed contingent and joined the government.

That was quite similar to the split by Karuna, the Eastern LTTE commander who has been with the government since then. Both campaigns against the LTTE and the Khmer Rouge were conducted through a great deal of repression, lawlessness and brutality on the part of the government, and certainly reciprocated by the militants. The use of heavy weapons against civilians is increasingly becoming clear, including during the visit of the UN envoy recently. The death of Pol Pot was also shrouded in some mystery, much more than that of Prabakaran, whose body has now been exhibited over and over again in a pornography of violent triumphalism. Fujimori's victory against the Shining Path came similarly at a high price in terms of human rights, consisting of a massive attack against free press and journalists, police brutality in the form of torture, and extra-judicial executions and disappearances. Indeed, public anger against Fujimori's high-handed tactics has now resulted in his arrest and conviction in a high-profile human rights trial for a massacre under his regime, a first for a head of state.

What will happen to the rump elements of the LTTE and who will ensure that there is no return to the practices of the past? What would be the fate of the Rajapakse brothers, General Fonseka and other leaders of the Sri Lankan armed forces? After all, the Rajapakse regime is now widely known to have been responsible for some of the worst violations of freedom of the press, attacks against journalists, and widespread repression including disappearances and extra-judicial executions, not to mention grave violations of international humanitarian law consisting of the killing, maiming and displacement of thousands of Sri Lankan Tamil civilians during armed conflict. More importantly, how will the Sri Lankan government earn the trust of the Tamils and of the international community that it will in fact be able to convert the military victory into a foundation for sustainable peace based on full respect for the human rights of the Tamils?

The first requirement for a way forward consists in the Sri Lankan government and the Sinhalese majority avoiding excessive triumphalism, a vindictive or vengeful attitude towards the Tamils and adopting an attitude of maturity, generosity and humility. The celebrations on the streets that followed the news of defeat of the LTTE are understandable in the short term but need to be followed by a concrete and real showing of attention to the humanitarian and development needs of the displaced Tamil population. If the Sri Lankan government lacks expertise in this regard or feels unsure about how quickly it will be able to turn around from a stance of militarism to rehabilitation, it should ask for help and allow a multi-national team to assist, led by the International Committee of the Red Cross (ICRC) and the UN High Commissioner for Refugees.

The second requirement for a way forward is to begin the political process for ensuring the rights of the Tamil minority in Sri Lanka. The political foundations of Tamil civic capacity are shattered thanks to the violence of the LTTE and the violence of the war effort, and this needs to be taken into account. An election in the Tamil-speaking areas is a necessary but not a sufficient condition for a political settlement. The provisions of the Indo-Sri Lanka accord of 1987 envisioned a referendum to decide if the Eastern and Northern provinces should remain separate or united. After the recent visit by two Indian envoys to Sri Lanka, the government in Colombo has verbally assured the world of its intention to hold elections but it remains to be seen when and how this will be implemented. Following the provisions of the Indo-Sri Lanka accord, the fate of all Tamils in Sri Lanka needs to be now part of a comprehensive political settlement, especially because proper democratic rule has not been restored in the Eastern province yet. Indeed, it is now well-known that conflict over land, partly made worse by the Tsunami in 2004, coupled with lack of security and development on the ground and lack of meaningful devolution, have blocked any serious progress towards peace, development and justice in the East.

Yet another provision of the Indo-Sri Lanka accord needs to be implemented swiftly, and that is to ensure that the Sri Lankan military is sent back to the barracks as soon as is practicable, and that certain areas are recognized as Tamil majority areas, before any electoral democratic process gets under way. This can only ensure that the election will occur in a neutral political environment and ensure a free and fair process that meets international standards. The best and perhaps the only guarantee to ensure that all this happens is to have the United Nations or a multi-national conference assist Sri Lanka in the capacity of an honest third party. In a climate characterized by decades of civil war, ethnic violence, terrorism and military triumphalism, both the Tamils and the Sinhalese need third party involvement to make the political process work. By itself, India cannot assume that role, not after the debacle of the 1980s, and not when its track record does not inspire great confidence among a substantial portion of the Tamil people. China, Russia and Japan, who have been playing spoilers at the UN Security Council, preventing it from dealing with the Sri Lankan issue in a misplaced display of Asian and anti-Western solidarity, need to explain to the world whether they have any plan to ensure that the Sri Lankan forces will not interfere with the electoral process in Tamil areas. The Sri Lankan government has assured India recently that the nearly 300,000 war-displaced Tamils who are held in camps, will in fact be resettled in the areas from which they were displaced. This is not only a requirement of international law, but also a political requirement for the peaceful resolution of the Tamil question.

A third requirement is the need for a sound constitutional process, which is based on the principles of strong federalism, respect for the territorial integrity of Sri Lanka and robust protections of minority rights. Particularly at issue would be the status of minority rights to language, education, and religion, devolution of power, local control of law and order and budgetary autonomy. All of those sensitive issues lie at the core of legitimate Tamil demands for equality and equal treatment. One of the key weaknesses of the Indo-Sri Lanka accord was that it lacked a common core of constitutional principles that would form the basis of a political settlement. Rather, it merely recognized that Sri-Lanka was "a multi-ethnic and multi-lingual plural society", which is merely a principle of political nationhood but not a statement of constitutional principles. Indeed, the East has not seen much political progress even after the defection of LTTE's Karuna due to the lack of meaningful devolution of power locally and the lack of constitutional safeguards for minorities that are implemented fairly towards the Tamils, Muslims and Sinhalese. Any new political settlement needs to clearly articulate the guarantees of constitutional protection of minority rights of all, especially that of the Tamils, protected by the international community, as argued above.

A related but sensitive political issue is the question of reckoning with the abuses of the past and the various resentments that it has built up. These abuses have been committed by both sides, but the Sri Lankan government bears a special responsibility to face up to its accountability, both because a state always bears more responsibility for its conduct under international law and because it is after all the victor. The Tamil community also needs to acknowledge a responsibility to reckon with the abuses of the LTTE, which was charged with the violation of grave violations of international humanitarian and human rights law, for example, by using civilians as human shields, and by drafting children as soldiers and suicide bombers. If the conduct of the ANC in South Africa is any moral guide, a more graceful way of winning (and accepting) the peace makes it much more sustainable. A huge part of how that is done is to establish a process for reckoning with the past abuses and earn trust in the capacity of rule of law as a foundation for peace.

Finally, reconstructing the war-shattered parts of Sri Lanka is going to be a crucial but a difficult process. The Tamil people need to see concrete improvement in their livelihood and economic security swiftly, in order to begin to trust the Sri Lankan government's intentions. That must be done without altering the ethnic balance on the ground and without exacerbating landlessness, which is already one of the main sources of tension. Taking the recent Indian election as a guide, the Sri Lankan government should see that people do vote for better and effective governance over the forces of division and extremism. That is the need of the hour in the war-torn areas of Sri Lanka.