Inconvenient truths: international accountability and domestic politics in Sri Lanka

    Asanga Welikala, 19 August 2011

    The Sri Lankan regime needs to be intellectually and electorally defeated. But in this task, the spectre of international intervention is not merely a distraction, but a hindrance.

    About the author

    Asanga Welikala is a doctoral researcher at the University of Edinburgh, and a legal scholar specialising in constitution-making and peace processes. His recent publications include (with David Rampton) "Would the real Dutugemunu please stand up? The politics of Sinhala nationalist authenticity and populist discontent", in Jonathan Goodhand et al, Conflict and Peacebuilding in Sri Lanka: Caught in the Peace Trap (Routledge, 2011)

    Earlier this year, the panel set up by the UN Secretary General to advise him on issues relating to possible war crimes and crimes against humanity in Sri Lanka published its report. Soon after, I wrote that success in the pursuit of any subsequent international action would depend on the extent that the Sir Lankan political context, and in particular the democratic opinion of Sri Lankans, had been taken into account. These are critical political factors bearing on post-war reconciliation and democracy in Sri Lanka. At the level of norms, my argument concerns the tension between international justice and national democracy. Immediate accountability for egregious human rights violations through some international mechanism cannot supersede all other considerations. In the past few months, international civil society and media have taken up the campaign for accountability in the light of the UN panel’s recommendations – the most celebrated intervention being the UK’s Channel 4 documentary, Sri Lanka’s Killing Fields. This is a point, therefore, that I believe needs re-emphasis.

    Given the terrible nature of the allegations, this is not an argument that is either easily or flippantly made. Nor are matters made easier by the Sri Lankan regime’s absence of magnanimity in victory in regard to the accommodation of Tamil aspirations in a new constitutional settlement; or the irascible, insensitive and deplorable comments senior government figures, notably presidential sibling and Defence Secretary Gotabhaya Rajapaksa, are regularly in the habit of making. But in terms of the political consequences single-track campaigns for international justice are likely to have within Sri Lanka, advocates of international action would do well to pay attention to the nuances of the local political context.

    Context and consequences

    Even as the UN panel report was published, it was clear to any discerning observer of Sri Lankan politics and public opinion that hostility to any form of international intervention went deeper than the histrionics of the regime’s representatives. If anything, since then this trend has only turned sharply upwards. True, a disintegrating parliamentary opposition has been wholly unable to provide either an alternative policy or democratic leadership. But the issue itself transcends party loyalties. It taps into more fundamental patriotic sentiments concerned with national sovereignty, dignity and unfair treatment. Even those sections of the electorate who are not the ruling coalition’s traditional constituency, inspired by these sentiments, are turning to the regime. For anecdotal evidence, one need only look at the vehemence and strength of feeling that the Channel 4 documentary elicited on internet message boards. More solid evidence of the regime’s democratic popularity is to be found in the results of several electoral cycles since 2005, and in the latest available independent quantitative data, such as the survey Democracy in Post-War Sri Lanka, released by the Centre for Policy Alternatives this week.

    Two aspects of the regime’s popularity need highlighting. Firstly, it is a popularity that is enjoyed in spite of its patent authoritarianism. From constitutional manipulation to the politicisation of public administration; from draconian national security laws and militarisation, to contempt for civic institutions and civil society; from incredulous levels of nepotism to rampant corruption; from the undermining of judicial independence to the devaluation of liberty and the rule of law, the regime’s contribution to the culture of governance has been decidedly insalubrious. Yet, according to the CPA survey, ‘58.8% of Sri Lankans think that the country has been the most democratic under President Mahinda Rajapaksa’s period [sic].’ In short, what we have in Sri Lanka is a classic example of an illiberal democracy, in which in any democratic disagreement, majoritarian arguments, buttressed by populist nationalism, trump all others.

    Secondly, when it comes to the relationship citizens have with the state, both the electoral results and the opinion data reveal the deep ethnic divisions that characterise post-war Sri Lanka. Only the Tamils of the North have defied the regime’s post-war electoral juggernaut, repeatedly reaffirming their commitment to a distinctive identity and desire for territorial autonomy in preference to the regime’s offer of economic development without autonomy. Within that 58.8% of those who think the country has never been more democratic than under Rajapaksa, 69.9% are Sinhalese, whereas only 23.6% of Tamil respondents concur. This only confirms what the ideologically Sinhala-Buddhist nationalist nature of the regime tells us. The political privileging of the majority nationalism is by definition a denial of the societal pluralism that ought to be the foundation of an inclusive Sri Lankan constitutional order, and the Tamils’ and other minorities’ alienation from the state is reflected in this empirical material.

    Lessons to be drawn

    What lessons are to be drawn from these two factors? The nationalist ideology of the Sri Lankan state-regime is the source of its democratic strength, at the same time as it is deeply divisive and normatively unjust in a pluralistic society. The fragmentation that results is contained by military force and political repression, and in this way ethnic division and authoritarianism have become the self-perpetuating dynamic that animates post-war democracy in Sri Lanka. For those concerned about a more liberal and pluralistic Sri Lanka, therefore, this constitutes the fundamental post-war political challenge. The longer the regime continues in power, the greater the damage it will do to Sri Lanka’s traditions of constitutional democracy and any hope of a settlement embracing its diversity. The regime needs to be intellectually and electorally defeated, and in this task, the spectre of international intervention is not merely a distraction, but a definite hindrance, to the extent that it unintentionally creates the space for the regime to burnish its anti-terrorism, anti-western and ‘patriotic’ credentials, and thereby shield itself from democratic scrutiny and normal politics.

    As I argued in greater detail and with illustrative comparisons in my previous article, this is not to appease hard-line recalcitrance, nor is it a ‘do nothing’ argument. The affirmation of the universalism of human rights is one thing, but in selecting the best methods of their realisation in challenging situations like Sri Lanka, there is surely the need for both a perceptive understanding of the complexities of the political context, and the capacity to take the longer historical view. Without this, human rights advocacy risks not only failure, but also strengthening the very illiberal forces it seeks to combat.

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    CH08/21/2011 06:41 AM

    Sounds like an apologist argument to me: preserve the ‘illiberal democratic’ regime, which is intimately linked to the latest episode of grave abuses that are at the core of the minority’s grievance, simply because the majority support the regime. True democracy should be capable of ensuring that the voices, and grievances, of all minorities are fairly represented and addressed. If the prevailing political configuration in SL is unwilling to or incapable of doing this, then it is not a democracy whose preservation should be advocated at the expense of accountability for appalling human rights abuses. International human rights frameworks exist precisely because of the disappointing frequency with which national systems fail to protect fundamental rights and hide behind arguments of cultural relativism, political transition, or preservation of national security.

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  • James Chance08/21/2011 01:08 PM

    Welikala is right to point out in this and

    in his more subtle first OD article from May 2011 that there are real dilemmas

    involved in pressing for the investigation and accountability for the terrible

    crimes committed by the Sri Lankan military and the LTTE in the final months of

    Sri Lanka’s civil war in 2008-9. Welikala is to be thanked for raising the

    issue.

    It is true that too much international criticism of

    the Sri Lankan government on war crimes and related human rights violations

    ignores the domestic and international political complexities and as a result

    plays into the hands of the Rajapaksa regime as a result. A more skillful and

    subtle approach is definitely needed.

    It is also true that any justice – whether retributive

    or restorative – will take a long time. Any international activism or action at

    the international level needs to recognize this and be in it for the long haul.

    What we don’t see from AW, however, are any details of what the alternative strategy is — either for eventually dislodging the

    Rajapaksas or for dealing with the legacy of war crimes on all sides and the

    deep structures of impunity of which the denial and lack of action on the

    crimes of the end of the war are only the most egregious example.

    While it is clear that the case for an internaional

    investigation — and for eventual justice – must be made more carefully, what

    also can’t be denied is that the crimes at the end of the war — especially those by

    the Sri Lankan military — simply can’t

    NOT be addressed. They have caused too big a wound among Tamils inside and

    outside Sri Lankan and will be a source of humiliation, bitterness and possible

    militancy so long as they are not acknowledged. They also constitute too big a

    crime to be ignored if Sri Lanka’s structures of institutionalized impunity are

    ever to be effectively dismantled (which is something in the interest of all

    Sri Lanka’s communities). They also constituted a fundamental assault on the Geneva Conventions and deserve to be repudiated for the terrible threat their example poses for people in other authoritarian regimes (Syria, Turkey,Colombia….)

    The challenge then, is how to keep the issue alive

    while reducing the ability of the Rajapaksas and Sinhala nationalist extremists

    to use the threat of international intervention to strengthen their hold on

    power. What’s important to realise here is that the “international community” –

    including governments like those in the US, the UK, Australia, France, who do occasionally at least call for a credible domestic inquiry –

    would strongly prefer the issue of war crimes to be forgotten. However unhappy

    they may be with the Rajapaksas’ post-war authoritarianism and their growing links

    with China, there really is no desire to pursue the war crimes issue. In fact

    it is only the work of international human rights and conflict resolution

    groups (along with a few brave allies in Sri Lankan), the explosive Channel 4

    documentary, and the Tamil diaspora (for all its one-sidedness and lack of

    subtlety) that is keeping the issue alive via the issue of an international investigation. If you give up on the latter possibility, how can the need for

    justice be kept alive?

    We also shouldn’t discount the possibility that at

    some point, should a domestic opposition worthy of the name emerge in Sri Lanka

    and the Rajapaksas’ hold on power weaken, international pressure on war crimes

    could become useful – as a way of helping ease the Rajapaksas out of the picture one way or another.

    But for this moment eventually to come, international

    pressure has to be more subtle and more focused. It should be more precisely

    targeted on the Rajapaksas – in particular on the architect of the war, the

    President’s brother Gotabaya Rajapaksa. (Given that Gotabaya – like his other brother Basil – is an American citizen, the US government has a particularly important role to play here.) Everything should be

    done to avoid presenting the issue as a campaign against the Sri Lanka Army or

    military, or against the Sinhala people or Sri Lanka as a whole. The issue

    needs to be presented as one in which a handle of corrupt and authoritarian

    militarist, lead by Gotabaya, have committed crimes that have sullied the

    reputation of the military, of Sinhalese, and of Sri Lanka – and that the only

    way their reputations and pride can be restored is by removing the source of

    the stain.

    This is why so much of the activism by Tamil diaspora

    organisations is so unhelpful: it turns the war crimes of 2009 into the final

    example of a decades long genocide carried out by successive Sinhala-controlled

    government, one which proves that Tamils aren’t safe in a country whose

    political institutions are controlled by Sinhalese, but instead need their

    separate state. Lost entirely in this narrative is the central role of the LTTE in putting the lives of (roughly) 350,000 Tamil civilians at risk in a failed bid to garner international sympathy and intervention to save the LTTE leadership. Prabhakaran and his supporters in the diaspora are equally guilty of the deaths of the tens of thousands of Tamil civilians killed in the final months – and no one should let this be forgotten.

    To help counter attempts to forget this, governments around the world

    with large Sri Lankan Tamil communities should be saying much more about the

    need to investigate the crimes of the LTTE. They should be publicly criticizing

    the failure of diaspora communities to do their own internal accounting and

    investigations into the LTTE’s crimes.

    International pressure and concern also has to take on a

    broader set of concerns: rather than focusing just on the crimes of the last

    months of the war, international statements must also express strong concern

    about the Rajapaksas’ authoritarianism, their corruption, their militarization

    of society, and their cultivation of impunity for rights violations suffered by

    all communities. The horrible legacy of LTTE atrocities against Muslims and Sinhalese and its crushing of internal

    dissent must also be returned to regularly.

    Doing nothing about the terrible crimes and loss of

    life in the opening months of 2009, as well as the atrocities committed by all

    parties throughout the decades of war, however, cannot be an option. I fear

    that, however important Welikala’s concerns are, his arguments will be used by

    those in foreign governments and the UN who wish to do nothing. Without

    international resistance, however, the Rajapaksas will only be more free to consolidate

    their family and military control and further dismantle the last remaining bits

    of Sri Lanka’s democracy. International resistance has to be more subtle, more

    focused on the Rajapaksas, more concerned with the crimes and injustices that

    all communities have suffered, more long-term, more attuned to domestic

    political dynamics and more supportive of domestic resistance. But no progress

    in Sri Lanka is likely without continued international pressure.

    In his earlier May 2011 essay on the same topic in OD,

    Welikala proposes this strategy:

    “It follows that a better route for the democratic

    opposition, Tamil political parties and civil society in Sri Lanka to regain

    lost legitimacy among the populace might be to draw the line at international

    intervention as well as immediate criminal accountability. This approach

    entails neither an abdication of Sri Lanka’s international obligations nor a

    renunciation of the possibility that accountability might be revisited when it

    is politically feasible; rather, a strategy aimed at depriving the regime of

    its absolutist patriotic pretensions is also a principled one based on

    democracy, human rights, popular sovereignty, and constitutional patriotism.”

    Such an

    approach, however, only has a chance of success if it happens in tandem with

    international pressure for something more. It seems unlikely that even this

    more modest domestic campaign for justice and reconciliation and political

    reform can work without international advocates keeping alive the question of justice and with it threat of worse to come.

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  • senc08/26/2011 04:00 PM

    The following messages by the current administration need to be read in conjunction with the past administrations such as of SWRD and JRJ’s and the history of Sri Lankan ‘democratic’ elections.

    - there is no need for devolution of power to the periphery because the LTTE is already defeated". Government of Sri Lanka was not involved in 13th amendment during Indo-Lanka accord"

    - commissioner of election to declare the reduction of electoral representation to the predominantly-Tamil northern districts, it is constitutional"

    - the assaults on the journalists are normal and happen everywhere.’

    ARE WE ANYWHERE CLOSE TO ANY SERIOUS PLURAL OR LIBERAL OR ANY OTHER???

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  • RussellB08/26/2011 06:46 PM

    The author may want to re-think about his/her position against international intervention.

    Sri Lanka has proven beyond doubt that it can manipulate its majoritarian democracy to subjugate the minorities, if not a structured genocide including whipping up ultra-nationalism among youth.

    It should be looked at the Sri Lankan context and failure of civil society members.

    Please note that some of the former civil society members and democracy advocates are now with the ruler broithers

    The situation is much trickier than Sudan, Kosovo, Libya or Egypt.

    Thank you

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