Much has improved with the end of the war in May 2009. The paralysing threat of suicide attacks on civilians in the south has ended with the destruction of the LTTE, while Tamil families no longer fear the Tigers’ forced recruitment of their children and other abuses. Economic and political security is better for some segments of society. But decades of political violence and civil war have polarised Sri Lanka’s ethnic communities and undermined institutions, particularly those involved in law and order. Each of the major ethnic groups – Sinhalese, Tamils and Muslims – has suffered immensely. Conflicts have not just left hundreds of thousands dead, injured or displaced but have also entrenched fears and misunderstandings in each community.
Progress toward reconciliation in this environment was always going to be difficult. It has been made much more so by the post-war policies of President Rajapaksa and his powerful brothers. With emergency and anti-terrorism laws still in place, they continue to violently repress the media and political opponents, while manipulating elections and silencing civil society. Constitutional reforms strong-armed through parliament have removed presidential term limits and solidified the president’s power over the attorney general, judiciary and various “independent” commissions. Northern areas once ruled by the LTTE are now dominated by the military, which has taken over civil administration and controls all aspects of daily life – undermining what little remains of local capacity. Democratic political activities in the north and east have been suppressed through the use of violent and corrupt ethnic Tamil proxies and other Rajapaksa loyalists. Development of those areas has been conducted without local consultation; indeed many Tamil residents feel that it is more like the extraction of the spoils of war than a real effort to improve livelihoods and build trust.
To deflect criticism of its unlawful conduct in the final stages of the war the government established a Lessons Learnt and Reconciliation Commission (LLRC). Promoted as a mechanism for both accountability and reconciliation, it will produce neither. In April 2011, a UN panel of experts found that the LLRC lacks the independence, mandate and witness protection capacity to serve as an accountability process for the many credible allegations of war crimes and crimes against humanity committed by both sides and recommended an international investigation. Correcting the LLRC’s flaws would require not only a new commission or other mechanism but also a reversal of the Rajapaksas’ core post-war policies. While the LLRC has served as a platform for airing some grievances, it has failed to win confidence domestically and can do little to aid reconciliation. Sri Lankans know better than anyone that such a commission is ultimately powerless.
Despite Sri Lanka’s long history of failed and ignored ad hoc inquiries, the international community seems willing to gamble on another. While India, the U.S. and UK have recently signalled greater scepticism of the government’s efforts, so far they and other supporters are repeating the mistake they made during the war. There was little real effort to prevent the atrocities at the end of the fighting, in part because the LTTE was so reviled but also because it was convenient to believe President Rajapaksa’s assurances that there would be political reform and conciliatory policies after a military victory. Now they risk falling again for the government’s delaying tactics and promises of accountability through the LLRC and political compromise through talks with Tamil political parties. So long as there continues to be no progress on either issue, large portions of the Tamil diaspora will remain convinced their community needs the protection that only a separate state can offer and will continue to ignore the LTTE’s share of responsibility for the atrocities at the end of the war and for the destruction of Tamil political society.
While the government tries to sell its “reconciliation” plans, the realities on the ground in the north and east are ominous. Many households are now headed by women, who are extremely vulnerable under military rule. Much of the aid promised has not arrived, and all is strictly controlled by the military. Over two thirds of the nearly 300,000 displaced civilians interned in the north at the end of the war have been sent home, but mostly to areas devoid of the most basic amenities. Another 180,000 of those and others displaced in prior stages of the war are still in camps or other temporary settings. Of the 12,000 or more alleged LTTE cadres detained at the end of the war, 3,000 are still undergoing “rehabilitation”. Hundreds more LTTE suspects, many detained for years without charge, are held separately. There is little transparency about the numbers or identities of post-war detainees, and upon release, many are closely monitored and harassed or pressured to act as informants. Families throughout the north and east are still searching for missing relatives.
Tamils are not the only community to find themselves marginalised. There have been no official efforts to address the conflicts that flared within Sinhalese communities in the south. Many disappearances have not been investigated; few families have been adequately compensated. No one has been held accountable. Similarly, Muslims expelled from the north or relatives of those murdered in the east by the LTTE have seen little in the way of resettlement, compensation or justice. Land disputes exacerbated by the conflicts affect all communities, but little has been done to design sustainable solutions. Concerns about corruption and increasing cost of living only add to the wounds of the past.
Reconciliation will slip further out of reach if the government maintains its policies. As part of broader efforts to counter false narratives put forth by it and by Tiger apologists alike and to restore the badly damaged rule of law, Sri Lanka’s partners should take immediate steps. Aid money should not be delivered without firm knowledge of how it will be spent, which requires extensive monitoring. Assertions that the government is moving towards reconciliation must be tested against realities on the ground, which means insisting on access. The Rajapaksas’ authoritarianism must be challenged directly and publicly, with strong messages against retrograde constitutional changes and centralisation of power. An international inquiry into alleged atrocities by both the government and LTTE is needed; UN member states should actively work to establish one, unless the government shows by the end of 2011 that it is willing and able to ensure accountability on its own. Sri Lanka eventually should also have an independent, inclusive truth commission to examine injustices suffered by all communities. It requires a fair accounting of its violent history to avoid repeating it.

RECOMMENDATIONS
To the Government of Sri Lanka:
1.  Immediately revisit policies that are exacerbating minority grievances:

a) end the state of emergency and revise anti-terrorism legislation to comply with international law;
b) make available to family members the names and locations of all individuals detained for suspected involvement in the LTTE;
c) issue accurate death certificates or declarations of absence for those who were killed or went missing in the conflict, without compromising the rights of family members to seek further information or remedies;
d) allow public and open mourning of the deceased, including the establishment of memorials, and assist in the recovery of human remains;
e) permit all displaced persons and returnees full freedom of movement and assembly, expedite the opening of remaining restricted areas in the north and empower local officials and civil society actors to mediate land disputes in a transparent, credible process;
f) reduce restrictions on and improve access for humanitarian and civil society actors, allowing them to increase levels of assistance, including in areas such as psycho-social support and gender-based violence, and determine priorities with input from local communities;
g) return land, houses, vehicles and other property seized by the military and implement a single scheme for compensating victims of all ethnic groups with equal payments and a transparent process; and
h) remove the military from civilian activities, reduce its security role and take immediate action to end all harassment of and attacks on Tamil women by military personnel.

2.  Deliver on promises to provider greater autonomy for the north and east:

a) expedite elections for the Northern Provincial Council;
b) decentralise decision-making on economic development, giving local government leaders control over resources and projects; and
c) commit publicly to the goal of reaching a political settlement on devolution in talks with the Tamil National Alliance (TNA), which should be followed by a process that includes independent representatives of Muslims in the north and east to finalise a settlement acceptable to all communities in those regions.

3.  Create the conditions needed to pursue meaningful reconciliation among all ethnic communities:

a) acknowledge that the war with the LTTE was not only a war against a ruthless terrorist organisation but also part of a larger ethnic conflict driven by grievances and prejudices of all communities;
b) recognise that a broad, inclusive national reconciliation process, including a truth commission to examine the injustices suffered by all communities, will be needed to sustain peace;
c) end all attacks on and threats against journalists and civil society actors, and stop using state media resources to perpetuate false narratives of the past and present;
d) reverse the consolidation of power in the presidency and military, including by proposing legislation to repeal the Eighteenth Amendment to the constitution and restore constitutional limits on the president’s term in office and power over the attorney general and judiciary, as well as commissions on human rights, police, elections, corruption, finance and public service; and by removing from military control all oversight of non-governmental organisations (NGOs) and decision-making on economic development;
e) break with Sri Lanka’s long history of impunity, including by making public the reports of all presidential commissions of inquiry into human rights abuses, especially those established by President Rajapaksa, and by implementing credible accountability processes for past and present abuses; and
f) request that the LLRC complete its report as soon as possible and release it to the public.

To Sri Lanka’s International Partners, including India, Japan, the U.S., UK, EU and UN:
4.  Encourage the conditions needed for longer-term reconciliation and to reduce the risk of a return to violence:

a) endorse and urge swift implementation of the recommendations of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka (see Appendix B), including the establishment of a complementary international inquiry into alleged war crimes and crimes against humanity (see Recommendations 5a and b);
b) evaluate all aid and engagement in light of the risks of a return to conflict and insist on the highest levels of transparency, external monitoring and non-discriminatory community participation in setting priorities;
c) highlight consistently the issues that affect all communities, including growing authoritarianism, militarisation, emergency laws, weak rule of law, impunity, corruption and repression of dissent;
d) review military-military ties and suspend assistance until there is a credible investigation of the alleged violations of international humanitarian and human rights law identified by the UN panel of experts; and

e) convene a high-level meeting of donors and other development partners, including the World Bank and Asian Development Bank, before the end of 2011 to agree upon and ratify with the government a strong set of principles for the delivery and monitoring of assistance; those principles should incorporate a) to d) above and emphasise the need for the government to commit its own funds to benefit its war-affected populations; in advance of the meeting, the government should be required to propose an assistance strategy and timeline for demilitarisation and return to civilian administration in the north and east.

To the UN and Member States:
5.  Support processes to establish accurate accountings of past and present violations of international law:

a) work to establish an international inquiry – pursuant to any lawful authority including the Secretary-General’s or the UN Human Rights Council’s – into the credible allegations of war crimes and crimes against humanity by both the LTTE and government forces, unless the government demonstrates convincingly by the end of 2011 that it is willing and able to hold accountable those responsible for alleged crimes;
b) ensure that the international inquiry is complementary to any credible domestic accountability mechanism that may emerge by, for example: focusing sequentially on certain incidents or categories of crimes and shifting to the next set of incidents or crimes only when the inquiry is complete or parallel domestic processes with respect to those incidents or crimes are proven to meet international standards; the international inquiry could start with alleged attacks on hospitals and humanitarian operations by government forces and child recruitment and suicide attacks by the LTTE;
c) use all available mechanisms – including the involvement of the Office of the High Commissioner for Human Rights, the UN Human Rights Council, the Working Group on Enforced or Involuntary Disappearances and UN special rapporteurs or representatives on extrajudicial executions, torture, violence against women, the protection of human rights while countering terrorism, the human rights of internally displaced persons (IDPs), and children and armed conflict – to press the government to end impunity, improve the situation for current and former IDPs and detainees and open up access for humanitarian and development actors;
d) follow through on commitments to review UN conduct during the war, as recommended by the panel of experts; but separately from any review immediately revisit the UN’s failed policy in Sri Lanka of holding back on public criticism to maintain humanitarian access; and
e) review Sri Lanka’s contributions to UN peacekeeping operations and refrain from accepting the participation of its troops until there is a credible investigation of the allegations against the military in the UN panel of experts report.

To Tamil Diaspora Groups:
6.  Help create the conditions needed to pursue meaningful reconciliation among all ethnic communities:

a) renounce the LTTE’s brutality against Sinhalese, Muslims and Tamils and repression of dissent within the Tamil community;
b) acknowledge that the LTTE shares responsibility for the suffering and massive loss of Tamil life in the north in the final stages of the conflict; and
c) support and cooperate with the investigation and prosecution of alleged war crimes and crimes against humanity by the LTTE throughout the conflict.

Colombo/Brussels, 18 July 2011