SRI LANKA: WHAT HAPPENS NEXT?

COMMENTARY ARCHIVES, 22 Nov 2009

Jake Lynch

The news that the Government of Sri Lanka is to close the internment camps where thousands of Tamils were illegally detained, following the end of the country’s civil war against the Tamil Tiger rebels six months ago, is testimony to the effect of international pressure. The European Union backed the call by Judge Navi Pillay, the UN High Commissioner for Human Rights, for an independent, international investigation of war crimes allegations. And it threatened to withdraw Sri Lanka’s coveted membership of ‘GSP-plus’: the Generalised System of Preferences scheme that gives developing countries privileged trading access to EU member states.

The US State Department produced a lengthy report, detailing attacks on civilians during the war including some 158 incidents of shelling or bombing that could only have come from the government side: a record that is, the authors noted, likely to represent only a cross-section of the full picture since many will have gone unreported to the outside world. When the International Monetary Fund voted on a package of soft loans to Sri Lanka, worth US$2 billion, earlier this year, the US took the unusual step of declaring publicly that it had abstained (voting is held in secret). The agreement is subject to quarterly review, so there are further opportunities for leverage.

In Australia, by contrast, official hand-wringing has been accompanied by a notable pusillanimity in following through with any form of action. Canberra has one of the two directorships for an Asia-Pacific group of countries on the IMF board, representing 3.4% of the vote; it kept shtum about how it was used, so we must assume it voted in favour. And Foreign Minister Stephen Smith went cap in hand to Colombo to ask for help in deterring Tamils from seeking refuge in Australia, after the arrival of a few boats had triggered the usual barrage of hysteria from right-wing politicians and media. Instead of governmental action, pressure has been applied through campaigning and lobbying from civil society, keeping a focus on so-called “push factors” that have seen asylum claims, from Tamils who have managed to reach Australia, being approved, at a rate of 95%, in recent months.

More obvious guilty parties include Cuba, which sponsored the motion at the UN Human Rights Council, congratulating the Government of Sri Lanka for its ‘victory’; a move that probably emboldened the Colombo authorities to believe they could get away with keeping the detainees for far longer than they otherwise would. The move dismayed many supporters of Cuba’s socialist government, including some in the Indian state of Tamil Nadu. Amarantha Visalakshi, an author and translator of books about Latin America, issued this response:

“We here in Tamil Nadu celebrated the 80th birthday of Comrade Fidel by releasing eight books on Cuba’s achievements in various fields…and are in the midst of our preparation for the commemoration of the 50th anniversary of the triumph of the Cuban Revolution…

“We are struck dumb and rendered disheartened and disillusioned by this act [the HRC resolution] by those countries of Latin America on which we have pinned our hopes for the future – Socialism of the 21st century.

“Why do these countries wish for wiping out the Tamils from the Sri Lankan soil where they rightfully belong? What are the sources of information for these Latin American countries to decide against the Tamils and in favour of the racist Sri Lankan government in the UN Human Rights Council?”

What now?

Clearly, continued vigilance is necessary, over what happens to those who’ve spent the last six months living in appalling camp conditions, traumatised by the events that drove them out of their homes in the first place. A report last week in the Washington Post raised concerns over the fate of those already released from incarceration.

“Facing pressure from the Obama administration and the European Union, the Sri Lankan government last month launched a campaign to resettle tens of thousands of the minority Tamil detainees”, wrote reporter Emily Wax. “But interviews in the country’s war-ravaged north reveal that many civilians have merely been shuffled from the large camps to smaller transit ones and are being held against their will. Others have been released, only to be taken from their homes days later with no indication of where they have gone”.

An informant in the port of Trincomalee, Devender Kumar, whose brother was released, only to be taken away by police without explanation, told Wax: “We thought this war was over. But for Tamils, it’s like going from the frying pan and into the fire”. There were 30 men in Trincomalee alone who had disappeared soon after their homecoming. A “senior US official”, quoted in the Post, praised the “sincere effort” to release people from the detention camps, but added the rider: “We have so far been unable to track where exactly they are going. We are hoping to see evidence soon that they have actually been resettled”. Wax reported seeing “fields of weeds where once rice and cashew were grown”.

Brami Jegan, a prominent civil society activist here in Sydney and co-convener of the Sri Lanka Human Rights Project at my own Centre at Sydney University, also drew attention, in an interview with public broadcaster ABC, to concerns over former internees still unaccounted for in their home communities: “Some of them are missing from the camps, they’ve just been taken away never to be seen again and some have been released. They haven’t been released back into the areas that they came from, which is the former conflicts area known as the Vanni, or the greater area known as the Vanni. They’re being released into areas that they weren’t previously living in”.

In the same interview, Jegan, a spokeswoman for the Australian Tamil Congress, also observed that “peace is not going to come until there’s justice, there’s reconciliation and the Tamils are treated as all other Sri Lankans are treated: as equals”. This is where the crisis over the war, the protection of civilians under fire and latterly the camps, needs to become an opportunity, backed by continuing pressure from the international community to find some way to transform the conflict into new phase.

Self-determination

The Tamil Tigers took, as a battle cry, the cause of an independent homeland – Tamil Eelam – in the north and east of the country, but demands for justice and equality long precede the emergence of the armed struggle.

“All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. So says Resolution 1514 of the UN General Assembly, passed fifty years ago next year. It also says: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.

So it begs the question of who can be considered a “people” and what are the legitimate borders of “a country”. At the time, the subjugation of the Tamil people in Sri Lanka was being intensified, with the notorious Sinhala-only legislation – denying their right to use their own language in public life – recently imposed. In 1972, the protection afforded to minorities, in the Sri Lankan constitution of 1948, was deliberately revoked, and Buddhism – the religion of the Sinhalese – was installed as the country’s official religion.

That demarche also, in effect, severed the island’s remaining ties to the former colonial master, the United Kingdom, which gave fresh impetus to the call for a separate Tamil homeland to be established. According to a report by the International Committee of Jurists:

“Proponents of Tamil Eelam argue that the northern and eastern Provinces of Sri Lanka coincide with the historic boundaries of the kingdom of Jaffna and argue a case that seeks to establish that sovereignty over these territories was never ceded to any conqueror and that, even if such concession had been made at any time in the past, the unilateral renunciation of links with the United Kingdom which took place at the assumption of office by the government of Mrs. Srimavo Bandaranaike in 1972 resuscitated the  Tamil sovereignty which had merely laid dormant until then… In the abstract theory of international law, it would appear that the Tamils have at the very least, an arguable case, and possibly a sustainable one”.

So it was that Tamil political leaders made the so-called Vaddukkoddai Resolution in 1976, named after the town in Jaffna where it was drawn up. This resolution was put to test in the 1977 general election and voters in Tamil Regions (North and East of Ceylon/Sri Lanka) returned 18 out of the 23 candidates who stood for election on the platform of independence. It was an assertion of the right to self-determination, in the face of systematic discrimination and state-sponsored violence, and its supporters today make the case that this was the last time the Tamils had a real chance to raise their voice, in a political context, because, “all elections held since were either under a gun point or a vast number of Tamil voters were stopped by Government forces and Paramilitary groups from voting”.

The words are from a proposal for a referendum among diasporic Tamils, who now number in the millions. Those who’ve fled as refugees over the years, and their families abroad, now almost certainly outnumber the Tamils left in Sri Lanka itself. The referendum is scheduled to go ahead in several countries including the UK – home to an estimated 300,000 – where it will be held in January. Those living outside Sri Lanka are, the document states, the only ones now in a position to state their wishes freely.

The European Commission report, compiled to guide EU ministers as they make a final decision on whether to extend GSP-plus, notes continuing concerns over human rights abuses: “The police are unwilling or unable to investigate human rights violations. The criminal investigation system and the court system have proven inadequate at investigating human rights abuses. The NHRC [National Human Rights Commission] is weakened, incapable of performing its role and has lost international recognition. The emergency legislation shields officials against prosecution”.

Sri Lanka had, in the past, adopted several key provisions of international human rights law, the report noted, including the International Convention on Civil and Political Rights, the Convention on the Rights of the Child and the Convention Against Torture. However:

“So far as effective implementation in practice of the conventions is concerned, the evidence shows that unlawful killings, perpetrated by police, soldiers and paramilitary groups, are a major problem. While Sri Lanka has a strong record of adopting legislation to criminalize torture, in practice torture both by the police and the armed forces remains widespread. The powers of detention conferred by the emergency legislation have enabled arbitrary detention without effective possibility of review of the lawfulness of detention. There have been a significant number of disappearances which are attributable to state agents or paramilitary factions complicit with the government; hence Sri Lanka has failed to implement its obligation to prevent disappearances by State agents and other forces for which it is responsible”.

In this situation, the opportunities for Tamils to raise their voice effectively within the country are strictly limited. The diasporic referendum could therefore be seen as a further authentic assertion of the right to self-determination, and – let’s put it like this – it would be a major surprise if it did not produce a result strongly in favour of an independent Tamil state.

There’s a difference, of course, between asserting the right to self-determination, and exercising it. The latter has, almost by definition, to be done through negotiation, since it inescapably affects the rights of others. The creation of a new state may be the eventual outcome of such negotiations – or it may not. Johan Galtung’s elegant idea of “non-territorial federalism” may gain in salience, bringing with it, as it does, a reminder that the conflict is not, at root, ‘about’ land but about rights and freedoms, as Jegan indicated.

With the demise of the Tigers, the ‘don’t-talk-to-terrorists’ excuse is removed. The record shows that when assertions of self-determination are met with attempts to quell them, by force and/or administrative fiat, they gain in strength, and are apt to find expression in violence. When they are met with negotiation in good faith, they can produce a sustainable improvement in the outlook for all concerned. For hopeful precedents – albeit with different outcomes – look no further than the two ends of Indonesia, Aceh to the west, now enjoying a high degree of autonomous self-government within the state, and East Timor to the east, now embarked on a new chapter as an independent nation state.

The Tamil community in Sri Lanka must be allowed to elect credible leaders who can negotiate meaningfully on political arrangements for a shared future of justice and equality. So they must be allowed to speak and organise freely, with full access to International NGOs and – in the case of alleged Tamil Tigers now being arrested – to the International Committee of the Red Cross.

Indictments, for the war crimes documented in the State Department report, can be held over the Colombo government as a means to incentivise cooperation, along with the financial squeeze through the EU and IMF. Unless there is an early move towards recognising and treating with the Tamils’ legitimate right to self-determination, the whole dismal cycle will, sooner or later, start again. That must therefore be the urgent concern of the international community, starting with the Commonwealth Heads of Government Meeting, in Trinidad and Tobago, next weekend.

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Jake Lynch is Associate Professor and Director of the Centre for Peace and Conflict Studies at the University of Sydney.

This article originally appeared on Transcend Media Service (TMS) on 22 Nov 2009.

Anticopyright: Editorials and articles originated on TMS may be freely reprinted, disseminated, translated and used as background material, provided an acknowledgement and link to the source, TMS: SRI LANKA: WHAT HAPPENS NEXT?, is included. Thank you.

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