Friday, July 10, 2009

Editor's Introduction - July 2009

What Next for Sri Lanka's 2.5 Million Tamils? By Amantha Perera. Time. May 26, 2009.

How to Defeat Insurgencies: Sri Lanka's Bad Example by Bobby Ghosh. Time, May 20, 2009.

An Annotation

In May this year and after nearly three decades of conflict, Sri Lankan President Mahinda Rajapaksa, formally declared victory in its war over the Tamil Tigers. Even though the end of hostilities mark a crucial turning point in one of the longest civil wars in Asia, Sri Lanka’s prospects for an enduring peace remains uncertain. One of the most important challenges ahead, as stated in this month’s centerpiece article “What is next for Sri Lanka’s 2.5 million Tamils,” is whether the Tamil’s longstanding grievances will be fully taken into account throughout the peace process. For this to happen, it is essential that the government gives a fair deal to the Tamils and fully integrate them in the ongoing political processes.

In the near future, one of the first steps towards peace and reconciliation must be to investigate abuses allegedly committed against civilians by both the government and the Liberation Tigers of Tamil Eelam (LTTE) during the fighting period. The United Nations Secretary-General Ban Ki-moon, in a recent visit to the country, reiterated his strong concerns over “unacceptably high” civilian casualties in the conflict and called for a proper investigation on the subject as a formula to increase the possibilities for longstanding peace in the country.

“But Rajapaksa’s triumph has come at a high cost in civilian lives and a sharp decline in democratic values — and he is no closer to resolving the ethnic resentments that underpinned the insurgency for decades. Perhaps Sri Lanka’s success should come with a warning label for political leaders and military commanders elsewhere: Do not try this at home.”

Since much of the country’s politics in the past twenty five years has revolved around the LTTE, the group’s demise will open up possibilities for the discussion of a whole range of other issues that not only include the restoration of civil liberties after decades of conflict, but also focus on how to foster higher levels of economic and social rights among groups that have historically been marginalized in Sri Lankan society.

“If issues of reconciliation and social inclusion are not dealt with, history could repeat itself.”

These issues and others are considered in this month’s Roundtable.


Moving in the Open Daylight

by Nicola Colbran, Norwegian Centre for Human Rights

“Human rights will play an important role in this road to peace by providing a politically and ethnically neutral set of principles for negotiation and fostering trust. Human rights can also offer a framework for commitment to a lasting and just peace.”

“The road to peace is never easy, and it is sometimes dangerous. The world desperately needs people who will have the wisdom and the courage to travel that road, and to insist that their governments make no detours around it.” Statement by H.V. Evatt, President of the United Nations General Assembly in 1948. As the Sri Lankan case indicates, these words are as compelling today as when they were originally stated.

The road ahead for Sri Lanka is certainly not easy. Although the government has declared that the LTTE (Liberation Tigers of Tamil Eelam) has been defeated, this “victory” has come at a high cost for civilian lives and democratic values. Decades of instability and violence have given rise to deep rooted and sustained human rights violations. Thousands of Sri Lankans have been displaced, killed or wounded, and are malnourished and traumatized after months of extended fighting between the two sides. Future conflicts over land and development appear inevitable in the north and east of the country. The government still needs to devise a political and constitutional settlement addressing the long-standing concerns of Tamils and other minorities, while gaining approval of the Sinhala majority. The ultimate challenge is to ensure that “Sri Lankans of all communities, including the Tamils, can feel at home and lead lives of dignity of their own free will.

The road to peace will undoubtedly involve the need to address the complex causes of the conflict, as well as triggers that may undermine progress towards peace. Much of this will involve commitment to addressing sensitive issues such as ethnicity, religion, political participation, land distribution and economics. The extensive number of civilian casualties sustained during the fighting also needs investigation. All parties must be willing to commit themselves to a peaceful, comprehensive and sustainable post-conflict solution.

Human rights will play an important role in this road to peace by providing a politically and ethnically neutral set of principles for negotiation and fostering trust. Human rights can also offer a framework for commitment to a lasting and just peace. While acknowledging the fundamental differences between Aceh and Sri Lanka, human rights formed a vital component of the Memorandum of Understanding (MoU) signed by the government of Indonesia and the Free Aceh Movement in 2005. The MoU emphasized the need for political participation by the Acehnese and strengthening the rule of law, as well as the need to secure the economic rights of former combatants, political prisoners and affected civilians. It also acknowledged the commitment of the Indonesian government to the International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights. Sri Lanka has also ratified these Covenants, which mandate the enjoyment of rights such as the right to political participation, freedom of expression and movement, the right to food, water and housing, without distinction of any kind.

It is the government of Sri Lanka that must (and must be seen to) take the vital steps of respecting, protecting and fulfilling such basic rights for all. This will include guaranteeing free and fair provincial elections, freedom of movement for internally displaced persons once they have completed security screenings, and the rule of law that needs to be re-established throughout the country. It will also mean new and equitable land titling, distribution and policies for conflict resolution. Participation is also a cornerstone of human rights, especially important are information flows that facilitate meaningful public consultation. The international community, in particular multilateral donors, should continue to stress the important role that international humanitarian and development workers can play. Local NGOs and community activists must also play a vital role in ensuring that there are no detours around the road to peace.

At the same time, according to the International Crisis Group, donors and development agencies need to “establish stronger procedures to understand the political dynamics in the east and in the north and to monitor the effects and uses of their development projects, so as to limit the risk that their assistance will aggravate existing conflicts or provoke new ones.” Given the relief expressed by international organizations and foreign governments at the final stage of military operations, it would be nothing short of a tragedy if the international community in fact contributed to the aggravation of existing conflicts and the provocation of new ones.

On May 19, 2009, the President of Sri Lanka, Mahinda Rajapaksa began the long road to peace on a conciliatory tone, starting his victory speech to parliament in Tamil. He stated: “We should live in this country as children of one mother. No differences of race, caste and religion should prevail here… All the people of this country should live in safety without fear and suspicion. All should live with equal rights. That is my aim. Let us all get together and build up this nation.” The emphasis on human rights is clear here. The road ahead also needs such clarity to ensure mutual confidence and trust, and the achievement of a peaceful, comprehensive and sustainable solution to the conflict with dignity for all.

Nicola Colbran is the legal advisor to the Indonesia Programme at the Norwegian Centre for Human Rights. In this capacity she coordinates and conducts human rights trainings in cooperation with Indonesian partners (government, NGOs and academia), and also researches and writes widely on human rights and Indonesia.


Moving Beyond Conflict in Sri Lanka: The Economic Rights Dimension

by Shareen Hertel, University of Connecticut

"Over the long term, the country must forge institutional reforms that will allow for meaningful “power-sharing” arrangements aimed at diminishing inter-ethnic tensions and fostering a higher level of social inclusion for historically marginalized groups."

Much of the literature on transitional justice underplays the role of economic rights in shoring up peace. The case of Sri Lanka demonstrates the urgency of addressing them. Until a month ago, Sri Lanka was the country with Asia’s longest running civil war. Since independence in 1947, the island nation has been wracked by conflict between the Sinhalese majority and the Tamil minority—a conflict that has eroded political stability and aggravated internal inequalities. The struggle was marked not only by inter-ethnic and religious tensions but also by a fight for control over land and resources.

In May 2009, Sri Lankan Government troops routed the Liberation Tigers of Tamil Eelam (LTTE), pushing the guerilla fighters who at one time controlled nearly a quarter of the country’s territory into a corner of the island barely a few miles wide. The final months of fighting were so horrific that the UN High Commissioner for Human Rights has since called for a formal international inquiry to “establish the facts” of reported human rights violations and violations of the laws of war on both sides. [See Navi Pillay, UN High Commssioner for Human Rights, statement 5/26/09, available electronically.]

Contributors to this Roundtable will likely focus on gross violations of human rights and the erosion of civil liberties. But I want to focus on the economic rights challenges endemic to ethnic conflict in Sri Lanka: the struggle for land and control of natural resources undergirds many inter-ethnic conflicts, pushing states deeper into poverty and eroding civil society’s ability to act as a catalyst for just and sustainable development.

Why were people worldwide moved to send billions of dollars in donations to victims of the 2004 Southeast Asian tsunami in Sri Lanka and elsewhere—but not moved to collectively express outrage when thousands of civilians and combatants were killed in Sri Lanka over decades? The world seems unmoved by the carnage. It’s a far-away place, in a region ( Asia) that still has no regional human rights institutions. Many Asian governments remain suspicious of “Western” intervention in their affairs in the name of human rights. And the lure of trading relationships and regional security arrangements in a nuclear neighborhood means most Western states are unwilling to push too hard to make rights matter.

Perhaps we feel we can aid victims of natural disasters, but not help staunch ethnic conflict in places far away. Yet the same impulse to help in the wake of the tsunami could be harnessed to re-build the social and economic fabric of Sri Lanka in the aftermath of decades of civil war. As Amantha Perera points out, the Sri Lankan Government’s top priorities must include resettling the hundreds of thousands of internally displaced people from the north of the country, while at the same time restoring all civil liberties suspended during the war. None of this comes cheap. It means re-building homes, schools, infrastructure, and legal systems, while at the same time healing the physical and psychological scars of war endured by literally hundreds of thousands of people. All of this takes money—much of which must come from within Sri Lanka, but which the international community can augment through bilateral contributions, multilateral donor assistance, and contributions from people who support humanitarian, development and human rights organizations working with local partners in Sri Lanka.

Over the long term, the country must forge institutional reforms that will allow for meaningful “power-sharing” arrangements aimed at diminishing inter-ethnic tensions and fostering a higher level of social inclusion for historically marginalized groups. These must address land reform and control over natural resources—central to the grievances that gave rise to rebellion by the Tamils in the first place. As one Sri Lankan citizen observed, “the road to Jaffna” (a major region controlled by the LTTE) “was blocked, so the economy there stagnated. Now that the war is over, the government needs to develop Jaffna economically. If it does that, there won’t be any problems.” The downside of ignoring economic rights is ongoing civil conflict and continued underdevelopment.

The international community—not only governments but also civil society organizations—can help by supporting Sri Lankan citizens’ groups to strengthen domestic human rights institutions and move toward the creation of robust regional human rights mechanisms. Though the focus in Sri Lanka and elsewhere is often on the political aspects of the transition to democracy, this is but one hurdle. Creating the conditions for sustainable and equitable economic development is just as important.

Shareen Hertel is an Assistant Professor of Political Science at the University of Connecticut, jointly appointed with the University of Connecticut Human Rights Institute. She has also served as a consultant to foundations, nongovernmental organizations (NGOs) and United Nations agencies in the United States, Latin America and South Asia. She is the author of Unexpected Power: Conflict and Change Among Transnational Activists (Cornell 2006) and co-editor, with Lanse P. Minkler, of Economic Rights: Conceptual, Measurement, and Policy Issues (Cambridge, 2007).


The War Goes On - No Reconciliation at this Stage

by Anja Mihr, Netherlands Institute for Human Rights (SIM), University of Utrecht, Netherlands

"To recall the country’s international commitments could foster the process of transitional justice and implement the rule of law and thus strengthen democratic institutions."

The victorious Sri Lankan President Mahinda Rajapaska has been quite bold to pass a reconciliation note after he declared the thirty year war over. Can he be taken seriously?

Little credibility can be given to a government that over the past years and months, has persecuted, killed, tortured or imprisoned thousands of Tamil civilians, including politicians and intellectuals such as lawyers, teachers, professors or journalists, that could play a key role in any reconciliation process. Now that the Liberation Tigers of Tamil Eelam (LTTE) has been officially defeated and most of their leaders killed, it is hard to find adequate partners for a diverse and representative council that could set up any process deserving the title “reconciliation.” Less so, since most recently the government has increased its military force by 50 percent, up to 300,000 (well paid) soldiers now keep hundreds of thousands of displaced civilian Tamils as “hostages” in camps; that makes one solider per civilian in the refugee camps in the north of the island. That kind of “governmental reform” certainly leans in the opposite direction of the tone Rajapaska struck in his reconciliation note from May.

What Ghosh has cited is true, that modern military wisdom has shown that political freedoms and economic growth foster reconciliation and peace in society much more quickly than increasing military forces in the name of “security” or “war on terror.” In order to do so, an equally composed transition commission, party pluralism and free elections ought to be considered. These objectives can be realized only if the financial means are provided for the return of refugees to their homes and to support them to make their own livings. This is the slow but most sustainable way to rebuild trust in the political institutions of a hostile government. Then elections could be held—why else does one want to hold elections if not for establishing a true democracy? All these processes and the goal of achieving civic trust, will take a generation or longer, but one has to make serious efforts to prevent violence, revenge and thus insurgencies from dominating social life again.

Stabilizing the country, however, without openly taking responsibility for the human rights violations committed against civilians under the Geneva conventions and its main protocols that have been ratified by the Sri Lankan government a long time ago, will lead to unrest in society. To recall the country’s international commitments could foster the process of transitional justice and implement the rule of law and thus strengthen democratic institutions. International human rights and humanitarian law can serve as a basis to assess past decades of war in which both sides, the government and the Tamil Tigers alike, have committed atrocities by purposefully killing civilians and thus committing serious war crimes, crimes against humanity and human rights violations. Both sides have been terrorizing the population and therefore neither trust political institutions nor can trust among the different ethnic groups be easily regained. To re-establish civic trust will take some time. Ban Ki-moon’s warning is well highlighted by Perera when he says that if social inclusion is not a priority from the beginning of any reconciliation process, history will repeat itself. And since there is no intention to do so, the atrocities will most likely repeat themselves soon and the war will go on.

In the current UN International Year of Reconciliation 2009, post-conflict and war torn societies receive more attention than ever from international organizations and NGOs. Based on their experiences, these agencies proclaim that the respect for and the implementation of international human rights and humanitarian law are prerequisites for any process of accountability and justice, and for the re-establishment of the rule of law, trust in civic institutions and stability of a country. This is not peanuts! It postulates strong commitments by all political and social groups for institutional changes and democracy. It means citizens’ rights and human rights for all groups regardless of their ethnic backgrounds as well as equal opportunities and access to resources and justice. It means free and fair elections and participation in the political decision making process. In consequence it would mean a total change of governmental policies and thus a loss of absolute power of the current president.

Under these conditions one is wondering whether we can take any of Mr. Rajapaska’s proclamation seriously. Instead, he strengthens his military dictatorship, increases persecution, imprisons hundreds of thousands of civilians and justifies the expulsion of international observers, embassy members, members of international organization and NGOs from the country. Ban Ki-moon was far too polite when he warned against the vicious circle of violence. One could add that Sri Lanka is still a long way from stepping out of the circle that it has already been in for decades, unless it stops applying martial law at all levels at any times.

Anja Mihr is appointed Associate Professor at the Netherlands Institute for Human Rights (SIM), University of Utrecht, Netherlands. In her latest research she is focusing on Transitional Justice, Reconciliation, Human Rights and Democratization. She was Visiting Professor for Human Rights at Peking University Law School in China and worked for the Raoul Wallenberg Research Institute on Human Rights, Lund University. From 2006-2008 she was the European Program Director for the European Master Degree in Human Rights and Democratization at the European Inter-University Centre for Human Rights in Venice, Italy. She has been a researcher and lecturer at universities in Germany, USA, Spain, Finland and Armenia and published widely on the international human rights regime, human rights education, democratization and reconciliation:


Justice after War: Sri Lanka and the Rights and Duties of a Vanquisher

by William Paul Simmons, Arizona State University

“Sri Lanka’s civil war may have come to a close but the conditions that precipitated it remain. Tamils are still not fully integrated into the larger Sri Lankan society and their demands for semi-autonomy are still mostly unheard."

Human rights scholars, attorneys, and activists will deservedly focus on the human rights abuses committed by the Sri Lankan military as the decades - long civil war against the Tamil Tigers came to a crushing end this past spring. The military’s brutality, especially its failure to discriminate combatants from non-combatants, should be investigated by both domestic and transnational institutions. It remains to be seen whether such wanton disregard for civilian collateral damage will become the norm for regimes embroiled in civil wars and present yet another realpolitik threat to humanitarian law, or will Sri Lanka and other regimes face accountability for such abuses. Here, though, I would like to focus on an area where Sri Lanka’s actions are still to be decided, namely, the responsibility of a state after it has been successful militarily. I will frame my remarks within the terms of recent advances in just war theory focusing on the moral responsibilities of a vanquisher.

Until the past decade or so, just war theorists limited their analyses to the causes (jus ad bellum) and conduct (jus in bello) of war. But, with an increased focus on transitional justice in such complex situations as the former Yugoslavia, Rwanda, Iraq and East Timor, more attention has been given to the actions and responsibilities of a state after a war (jus post bellum). To be acting justly, we are told that a state should not prolong the war beyond the appropriate time, should not unduly cause damage, and, in determining punishment, should discriminate between military personnel and civilians and between leaders and followers.

What should happen though when one side is completely defeated on the battlefield as in the Sri Lanka case? When one party of a conflict is vanquished, the cessation of war is something of a state of exception, where the victor’s power is apparently limitless. The state would seem to have absolute power to extract whatever terms it may. We might all agree that a vanquisher cannot rightly kill all the men and enslave the women and children as was the custom among Ancient Greeks as evidenced by in the infamous destruction of the island of Melos by the Athenians, but what moral authority should check a state’s actions?

John Locke, who famously held that a vanquisher in a just war had “absolute power” over the vanquished and could rightly take their lives even after a war, argued that the vanquisher could not rightly seize more of the vanquished’s property than was necessary for reparations. After all, the vanquished’s property rightly belonged to their heirs and was vital to their livelihood. To discriminate between combatants and non-combatants would require allowing the heirs of the combatants and other non-combatants to rebuild their lives with their own property. To exact more punishment would be an affront to their dignity and violate their inalienable rights.

To better understand the vanquisher’s responsibility to respect these rights we need to consider the situation of the vanquished, as in this case, the Tamils in Sri Lanka. Are they not at the height of vulnerability, lacking any real political, social, economic, or military power? Are they in any position to assert their rights and realize their livelihoods, especially in the face of a jubilant vanquisher? Since the vanquished are particularly vulnerable, the state, I argue, is responsible to ensure their livelihoods and even to take affirmative measures to ensure the rights and dignity of the vanquished. Without such affirmative measures the rights of vulnerable minority populations will forever be in jeopardy and at the whim of the majority.

Sri Lanka’s civil war may have come to a close but the conditions that precipitated it remain. Tamils are still not fully integrated into the larger Sri Lankan society and their demands for semi-autonomy are still mostly unheard. President Mahinda Rajapaksa gave some lip service to integrating the Tamils by speaking a few words of his victory speech in Tamil and promising that he “would take care of” them. It seems that the President is willing to take on something of a fiduciary relationship, to act as a trustee for the best interest of the Tamils. However, to realize their rights and their dignity would require much more than a trustee relationship. It would mean taking seriously the demands for semi-autonomy, to attack the structural violence of poverty, to rehabilitate the displaced, and to end decades of discrimination.

Human rights tribunals, such as the Inter-American Court of Human Rights, have increasingly held that vulnerable populations such as indigenous peoples, persons with disabilities, children, and women are deserving of special protection. What about the vanquished? Are they not deserving of special protection?

Jus post bellum requires eliminating the causes of the war and building a positive peace. Jus post bellum, somewhat paradoxically, means empowering those that have just been vanquished.

William Paul Simmons is Associate Professor of Political Science and Director of the Masters program in Social Justice and Human Rights at Arizona State University. His work has appeared in such journals as Philosophy and Social Criticism, Yale Human Rights & Development Law Journal, The Journal of International Human Rights, and Social Sciences Quarterly. A forthcoming book examines the potential for reinvigorating human rights law from the perspectives of marginalized peoples. He has served as a consultant on human rights and social justice issues in The Gambia (West Africa), China, and the United States.