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Dilemmas ofaccountability: Politics,the military andcommissions of inquiryduring an ongoing civilwar the Sri Lankan caseChandra Lekha Sriram aa Senior Associate at the UN's InternationalPeace AcademyPublished online: 20 Sep 2007.

To cite this article: Chandra Lekha Sriram (2002) Dilemmas ofaccountability: Politics, the military and commissions of inquiry duringan ongoing civil war the Sri Lankan case, Civil Wars, 5:2, 96-121, DOI:10.1080/13698240208402504

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Dilemmas of Accountability:Politics, the Military and Commissions

of Inquiry during an Ongoing Civil WarThe Sri Lankan Case

CHANDRA LEKHA SRIRAM

This article seeks to contribute to the literature on transitional justiceby examining the somewhat novel case of Sri Lanka — one where thecountry is not emerging from authoritarian rule, but is rather arelatively democratic one yet engaged in an internal armed conflict. Iargue that even in such novel cases, same sorts of trade-offs must bemade with the security forces as are made in 'traditional' transitionalsituations. Specifically, the putative trade-off between stability andjustice is oversimplified, and a country always has a range of choicesbetween prosecution and amnesty, but other trade-offs, specificallyconcessions to the very parties responsible for abuses, may yet benecessary.

SRI LANKA AND OTHER REGIME CHANGES

In recent years, much attention has been paid to the dilemmas faced byregimes emerging from military dictatorships or civilian authoritarianregimes with respect to past human rights violations. What is suggested hereis that even where a country is not under authoritarian rule, lessons from theliterature on transitions and civil-military relations may apply. Specifically,I seek to show that in Sri Lanka, a country undergoing a transition only inthe loosest sense of the word, the same sorts of trade-offs must be made withthe security forces as are made in 'traditional' transitional situations.Specifically, the putative trade-off between stability and justice isoversimplified, and a country always has a range of choices betweenprosecution and amnesty, but other trade-offs, specifically concessions tothe very parties responsible for abuses, may yet be necessary. I willexplicate this claim more fully shortly; however, I wish to briefly justify myselection of Sri Lanka and treatment of it as a transitional case.

Civil Wars, Vol.5, No.2 (Summer 2002), pp.96-121PUBLISHED BY FRANK CASS, LONDON

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Why Sri Lanka?

Sri Lanka is an informative case not least because it is atypical. Thetraditional study of 'transitional regimes' treats a country or countries thathave experienced a handover of power to civilians following military ruleor a negotiated end to a civil war.1 Countries such as South Africa, ElSalvador, Guatemala and many others have faced increasingly stridentdemands for accountability, yet have faced recalcitrance on the part of themilitary or elements of the old regime to submit to trials or other measuresof accountability.

This dilemma, however, does not only occur in post-authoritarianregimes where a bright transition line can be drawn; it can also occur indemocratic states with severely flawed human rights records due to, interalia, a civil war or internal terrorist movement. It may also occur in statesthat are only formally democratic but still politically dominated by themilitary. Sri Lanka is an example of the former, and Honduras the latter. SriLanka represents not a radical break from the aforementioned cases, butrather one end of a transitional continuum, and as such may be particularlyinstructive in a comparative context. I discuss first the history of the conflictand abuses and measures of redress, particularly those taken after anelectoral administration change in 1994.

My claim is not that the electoral change constituted anything like theradical break with past structures that transitions ordinarily do, but that itdid open political discourse and practice to new measures, specificallyattempts at re-igniting peace negotiations, re-drafting constitutional reformsand addressing abuses in and out of the courtroom. In so doing, despitebeing worlds away from the transitional regimes of Latin America, bothgeographically and politically, Sri Lanka has happened upon some of thesame compromises that they did.

How is Sri Lanka Different?

Sri Lanka, like many 'transitional' countries, has suffered a protracted civilwar that has resulted in significant military and civilian losses as well asdisappearances and other human rights atrocities. Sri Lanka is unique,however, in that it has had a functioning democracy since independencewith relatively peaceful transfers of power from one ruling party to another.2

Furthermore, despite the protracted battle between government forcesand Tamil rebels calling for independence in the north and east of thecountry, as well as intermittent conflicts with Sinhalese extremists in thesouth, the armed forces have yet to seize power, though they have engagedin serious abuses.

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Thus Sri Lanka comes to the central dilemma I raised at the beginningwith a different history that may well be enlightening. While the militarycontinues to enjoy broad power, it has not intervened directly in electoralpolitics. That it has failed to do so is interesting in light of newgovernmental policies, following the election of the party of ChandrikaKumaratunga (now president) in 1994, which led to the creation of threeregional truth commissions (and later one consolidated island-widecommission), scattered prosecutions for past abuses, renewed negotiationsin earnest with the Tamil rebels, and proposals for constitutional reform anddevolution.

TRADE-OFFS OF 'TRANSITION'

There is a wide range of options open to states that consider addressingthe legacy of the past, from prosecution to lustration (purification) tocommissions of inquiry to amnesties. There is no simple dichotomouschoice to be made between stability and accountability, and not every statechooses the same course of action. It is not my intention to explain indetail here why a government chooses one compromise over another, butmerely to show what they will compromise over. I draw here on literatureabout transitions and civil-military relations, specifically the 'back to thebarracks' literature. This may appear a controversial choice in that thisliterature specifically deals with the exit of militaries from politicalleadership. However, this literature is informative because in so manycountries the security forces (the military and the police) were responsiblefor past abuses, and even where they are not the nation's rulers theyremain a force to be reckoned, and compromised with. I will seek todescribe how, for perfectly comprehensible practical reasons (the need tomaintain a strong military in a civil war), the government of Sri Lanka hasnecessarily moved somewhat cautiously in its quest to pursueaccountability and other reforms. I turn now briefly to the literature andhypotheses that can be drawn from it.

The literature on military intervention in politics and exit from it isenormous,3 but a more recent claim arising from it is most relevant here: thatmilitary corporate interest is threatened by the fruits of transition and thatcompromises will have to be made.4 Militaries, according to this literature,are protective of their corporate interests, which tend to cluster around threesets of issues in times of transition: the treatment of their members for pastabuses, maintenance of budgetary levels, and institutional prerogatives. Thelast category includes maintenance of control over military doctrine,education, and selection of personnel and leadership.

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In traditional transitional situations, regimes cannot achieve maximalinroads in all three areas simultaneously, but must make carefulcompromises. Rather than at the extreme suffer a coup attempt, a newregime may accept lesser levels of accountability, or lesser levels of reform,or artificially high budgets. I seek to show that one can see similarcompromises at work in Sri Lanka even though a coup threat is remote. Iwill focus, however, only on accountability and reform, as military budgetsnecessarily remain high in the course of civil war. I also must necessarilyexpand the scope of what 'reform' might entail: at issue are alsoconstitutional reforms and peace negotiations, both of which could alter theshape of the country, the conflict and the military. Let me briefly illustratethe trade-offs of transition with three cases, those of Chile, El Salvador andSouth Africa.

The abuses that occurred in Chile under General Pinochet are by nowwell known, as is the fact that on his departure from office in 1989, heattempted to protect himself by naming himself 'Senator for Life'. This,combined with a 1978 amnesty, made pursuing perpetrators of past humanrights violations very difficult, as did the vocal threats and objections byPinochet and others in the military to attempts at prosecution. The newcivilian regime created a commission of inquiry that would serve as a modelfor those to come, though by comparison with its progeny it had a relativelyweak mandate. Until recently, Pinochet and other rights abusers remainedrelatively untouchable, though some 20 convictions had been achieved by1994 for post-1978 abuses. Following Pinochet's arrest in London forpossible extradition to Spain for prosecution, military officers in Chile havebegun to be charged for past abuses, with the Supreme Court using acreative legal approach to sidestep the amnesty legislation. At the sametime, the armed forces have begun to attempt to revise their image,consulting with human rights lawyers, and professionalizing with the shiftin personnel over time.5

What we see in Chile's transitional experience is repeated in large partin other contexts: a strong military is able to fend off threats of prosecutionfor some time, even after they have relinquished political leadership, andcivilian rulers tread carefully, often seeking only 'truth' rather than 'justice'.As we will see in other contexts, however, it is not only the fate of rightsabusers that will be contested: so will attempts at reform and attempts atreduction of the budgets of the security forces.

El Salvador is a classic example of a negotiated transition and politicalcompromise surrounding, inter alia, the question of accountability.However, there was a flip side to these compromises: relatively wide-ranging reform of the security forces. Certain abusive security forces were

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eliminated, new military and police doctrines were instituted, as wereeducational reforms, and some small amount of lustration was possible,even as amnesties were put into place. The commission of inquiry alsoturned out to be stronger than expected, issuing a scathing report with wide-ranging recommendations, including some of the reforms and lustration justmentioned. Military budgets remained artificially high, well above pre-warlevels, but did begin to fall with the transition. For reasons of space thisbrief illustration must suffice to show the sorts of trade-offs made in a more'traditional' transition.6

South Africa presents quite a different negotiated transition, withslightly greater inroads made with respect to accountability, and reformsinstituted, particularly in the police force. By now the compromiseenshrined in the commission of inquiry for South Africa is famous: amnestyis given only in return for confessions regarding politically motivatedcrimes, otherwise prosecution remains an option. This simultaneous carrotand stick approach has of course produced numerous confessions whileensuring that many rights abusers of the apartheid era will go free. At thesame time, doctrinal reforms have been instituted in the military and thepolice, with the police in particular receiving instruction with respect tohuman rights. While the overall racial composition of the military andpolice has been shifting, lustration remained limited at best and it remainsdifficult for blacks to reach the upper echelons of the security forces. Themilitary budget remained high immediately after the transition, but manyattribute this to the costs of the transition itself.7

I will turn in just a moment to a history of the conflict in Sri Lankabefore discussing the contemporary policies dealing with accountability andreform. First, though, let me say a word about the players and units to beanalyzed here.

Not surprisingly, any analysis that examines a country experiencing civilstrife, peace negotiations, human rights abuses and accountability mustnecessarily confront key power players. Here there are three of particularimport: the government, the military and the rebels, in particular the firsttwo. This is not to discount the role of civil society, in particular grassrootshuman rights groups, or the judiciary, which has played an increasinglyimportant role as trials have gone forward. However, it is to say that thepolicymaking power lies chiefly with the government and the military, andto a much lesser degree the rebels. They will, therefore, be the main units ofanalysis here, although of course pressure from below plays an importantrole in forcing broader policy changes.

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HISTORY OF THE CONFLICT

Sri Lanka poses an intriguing case of a new regime seeking to address oldabuses because it is not an instance of a new democracy investigating thecrimes of an authoritarian predecessor, but rather a newly electedgovernment in a country that has been a continuously functioningdemocracy instigating such an investigation. The situation is yet moreunusual because of the tense ethnic relations in the country that havespawned the separatist Liberation Tigers of Tamil Eelam (LTTE) in thenorth and east, who seek an independent Tamil homeland, as well as theSinhalese extremists of the Janata Vimukthi Peramuna (JVP), both of whomhave carried out terrorist acts. Ethnic tensions have grown stronger sinceindependence, becoming severe in the 1970s.8

With the widening of the ethnic divide, violations of human rightsbecame more common, as did a demotion of the status of minority rights,particularly in the areas of language and education, further widening the rift.Human rights violations were facilitated, as we shall see, by a network ofpublic security legislation and emergency regulations that made a farce ofhabeas corpus and other protections central to notions of due process. Atthis point it is worth detailing the features of the constitution that deal withfundamental rights and their limitations as these are central both to therepression of the past and current and proposed reforms.

The Constitution, Emergency and Restrictions on Fundamental Rights

Sri Lanka has a constitution that recognizes many human rights asfundamental rights, and has become a signatory to important internationalhuman rights instruments. However, legislation for emergencies and toprevent terrorism have progressively infringed on those freedoms.9

The 1947 Public Security Ordinance (PSO) provides the basis foremergency regulations (ERs) as necessary for public security and order;these regulations can override existing law but not the constitution.10 The1979 Prevention of Terrorism Act (PTA) gave the police and armed forcesbroad powers, particularly of arrest and detention, and essentially put thenorthern territory under martial law. Police powers of arrest, detention andeven the extraction of confessions through torture were expanded with the1983 regulation 15A.'1 In August 1983, the Sixth Amendment to theConstitution was passed, which deprived of their seats all members ofparliament that refused to take an oath of loyalty renouncing secessionistbeliefs, thus depriving Tamil party legislators of their seats.12

Some legal and constitutional provisions derogate from the regime'sobligations under the UN Convention against Torture,13 and the guarantee of

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a right to life under the International Convention on Civil and PoliticalRights. Proposed constitutional drafts presented from 1995 onwards addedthe right to life, but with the limitation that it could not be arbitrarilydeprived.14 I will return to the question of fundamental rights andconstitutional reform later in the essay, following a further explication of thecountry's history, the war and the efforts at addressing past abuses.

Ethnicity, Political Rivalries and the Outbreak of War

The two main parties that have traded positions in power in the post-independence period are the United National Party (UNP) and the SriLankan Freedom Party (SLFP): the former was originally more diverse andtolerant, while the latter had a wider labor base and tended to make bothsocialist and Buddhist chauvinist appeals. However, it was an SLIT5 primeminister, S. W. R. D. Bandaranaike, who would reach an agreement with theTamils over language, only to be assassinated in 1959, apparently by radicalBuddhist monks.15 The pact he reached with the Tamil leader would haveallowed for some use of Tamil and created regional councils; although itwas abrogated under duress, it is still a common reference point in currentdiscussions of the Tamils' claims.16 It was in 1962, in this environment ofheightened ethnic tensions, that military officers launched a coup attemptthat ultimately failed; however, it appears not to have been a result of ethnicdivisions, but rather of a sense that the government was wronglyemphasizing such divisions and contributing to a national crisis.17

In 1971, a newly returned to power SLFP, which had strengthened itsties to Marxist and Tamil groups, faced an uprising by leftist Sinhaleseyouth who had also supported the party. Under the leadership of the JVP,there was a significant revolt, put down militarily by the government withforeign aid. As a result some 5,000 died, 16,000 were arrested, and a two-year state of emergency was imposed that would eventually stretch to sixyears, during which thousands of suspects were detained without trial.While some have pointed out that the motivations for the uprising were asmuch economic as ethnic (if not more so), the actions came at a time ofincreasingly aggressive Buddhist nationalism.18

During the 1970-77 period, governmental policies towards Tamilsbecame increasingly restrictive and discriminatory, pushing Tamils todefine themselves ethnically and increasingly stridently, eventually leadingto a call for an independent Tamil homeland.19 In particular, Tamil access tohigher education was progressively restricted, and debates over textbooksintensified controversies over language. The result was a 1977 call by theTamil United Liberation Front (TULF), the Tamil political party, for aseparate 'eelam' or homeland for Tamils.20

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The year 1977 also saw the return of the UNP to power, this time headedby J. R. Jayewardene, a political pragmatist who promised some economicprivatization but also promoted a Buddhist revival and demonstrated littleconcern for the status of the Tamil minority.21 The UNP would hold poweruntil 1994, during which time inter-ethnic relations deterioratedsignificantly.

The LTTE had been formed in 1972 as the student wing of the TULF,but eventually broke away. Following anti-Tamil riots in 1977, the LTTEescalated military activity and moved further away from the TULF party,which failed to push for a homeland.22 In 1978, the LTTE was officiallybanned, but continued to draw ever greater numbers of Tamil youth.23

Also in 1978, the centralization of power was increased with a newconstitution. An executive presidency was created that was able to bypassparliamentary objections. Even the 1980 District Development Councilswere to be controlled by the President and were ultimately ineffective.24

This period saw legislation that progressively expanded police powers andlimited civil and political liberties: the 1979 Prevention of Terrorism Act,25 the1983 Emergency Regulation 15A;26 and the 1983 Sixth Amendment to theConstitution was passed.27 The UNP further tightened its grip on governmentwith the December 1982 referendum on the extension of the President's term,which won handily in a campaign of pro-government propaganda andsometimes violent suppression of opposition activities.28

In this environment anti-Tamil riots broke out in Colombo in 1983,following the killing of 13 Sinhalese soldiers by the LTTE near Jaffna in July.The bodies were brought to.the capital by fellow soldiers, sparking anoutburst against Tamils by both local civilians and the soldiers themselves.The result was widespread and systematic destruction of Tamil-owned homes,businesses, and factories; estimates of fatalities vary, from the governmentestimate of 470, to perhaps 2,000-3,000. In addition, at least 80,000-100,000Tamils were displaced to refugee camps in the Colombo area alone; otherestimates place the number of Tamils made homeless at 150,000.29

Simultaneously, there was a rise in JVP-perpetrated terror in the south,as the group accused the government of being India's pawn and failing todeal firmly enough with Tamils.30

A disturbing feature of the riots was the apparent failure of the militaryand police to even attempt to halt them; in some cases they activelyencouraged these criminal acts, as President Jayewardene subsequentlyadmitted.31 There was a perception among many Tamils that the securityforces not only tolerated but participated in the violence.32

India, not surprisingly, has taken a great interest in events in its tinyneighbor to the south because of the ramifications of events on the island,

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particularly for India's southernmost state of Tamil Nadu, even apparentlytraining some LTTE guerrillas and setting up a rival Tamil group.33

India was heavily involved in pushing for negotiations, but in February1987 it withdrew its good offices as the talks broke down. India becameincreasingly identified with the Tamil camp in the negotiations; thisculminated in the dispute between the nations over India's shipment of foodand medicine to the Jaffna peninsula in early June. India announced itsintent to send such goods on unarmed ships; the prime minister of Sri Lankacalled these moves provocative, and stated that the military would protectthe island and its territorial waters. After 20 supply ships were turned backby the Sri Lanka navy, India delivered the goods by airdrop.34

In a move that further allied it with the Tamils, the Indian government,while pursuing negotiations with the Sri Lankan government, allegedlymade key promises to the LTTE leader, including, inter alia, that an interimgovernment would be formed with the LTTE playing a prominent role andthat the government of India would pay compensation to the LTTE to keepup the organization once the rebels ceased to collect taxes.35

However, the agreement that was finally reached between India's PrimeMinister, Rajiv Gandhi, and Jayewardene, the 'Indo-Sri Lanka Agreementto Establish Peace and Normalcy in Sri Lanka', was rejected by the LTTEboth because they were not consulted, as well as for substantive reasons.The agreement, signed 29 July 1987, provided for an Indian Peace KeepingForce (IPKF) in the north and east; the plan was for the force to remain untilelections could be held for a regional council through which some powerwould be devolved to the Tamils. The accord also called for the shift to afederal state structure through the 13th Amendment and a merger(temporarily at least) of the north and east provinces, as well as arecognition of Tamil as one of the official languages of the nation.36

The LTTE objected that the pact would not entail any real autonomy forthe region,37 and was uncooperative, handing over only a small number ofweapons to the IPKF. Further, the IPKF engaged in battles with the rebels,and the populace was alienated by the excesses of the force, which engagedin human rights abuses, indiscriminate shootings, rapes and massacres. Bythe time the force left in March 1990, some 1,155 Indian soldiers and 711Tamil rebels had died, and India's intervention had earned it the enmity ofboth main ethnic groups. When India pulled its forces out, the LTTE quicklydestroyed the rival rebel militias that it had set up.38

The accord sparked rioting by Sinhalese arguing that the governmenthad given too much to the Tamils. These riots resulted in significant policecrackdowns; it is estimated that during the 1987-89 insurrection someestimated 40,000 Sinhalese suspects were killed by the military and related

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unofficial armed groups; disappearances took place elsewhere in thecountry. In the environment of growing political violence that followed,then-President Premadasa was assassinated in May 1993.39

NASCENT ATTEMPTS AT REFORM

The Question of Devolution

Not surprisingly, the question of devolution of power to any degree to theTamils has been a thorny political issue. The question is increasinglypolarized, with the LTTE generally, though not all Tamils, demanding fullautonomy, which the government resists partly out of fear of a Sinhalesebacklash, making devolution measures and questions of constitutionalreform such as weakening the executive presidency divisive issues.Questions of accountability for past abuses and curtailing future abuseshave recently been thrown into this already volatile political mix.

In late 1991, a Parliamentary Select Committee (PSC) began workcrafting institutions to enable some degree of devolution,40 but were stalledby Tamil insistence on a single merged unit in the north and east provinceswhere they dominated or that the constitution become a 'federal' one,though in late 1992 there was provisional agreement within the PSC on anIndian-style federal system.41

Following the May 1993 assassination of President Premadasa, thesuccessor government moved away from some of the excesses of itspredecessor, disbanding a quasi-official police group that had been used toterrorize opponents. In provincial elections held shortly after theassassination the UNP came out somewhat ahead of the SLFP.42 Themilitary high command was somewhat revamped, with a new head withfewer political ties. Local elections in early 1994 passed fairly peacefully,even in LTTE strongholds where a boycott was declared.43

On 16 August 1994, parliamentary elections took place following anelection campaign marred by serious violence, fraud and actions by the policedemonstrating their partiality towards the ruling UNP.44 Nonetheless, thePeople's Alliance (PA), of which the SLFP was a member, replaced the UNPgovernment. Chandrika Kumaratunga became the new Prime Minister, withthe PA as part of a larger ruling coalition.45 The PA ran on a platform ofnegotiating an end to the conflict, dealing with human rights abuses andcorruption and strengthening democracy, and more generally depicted itself asthe party of 'change'; perhaps benefiting from a general war-weariness in thepopulation.46 The PA also proposed the abolition of the executive presidency,arguing it was too strong and undermined democracy.47

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The PA under Kumaratunga had progressively modified its stance onethnic questions, coming to support the modification of local provincialcouncils to allow for more Tamil autonomy and possibly the Tamil call fora unit in the north-east. Kumaratunga criticized military excesses in the warin the north, winning further minority support; she also built coalitions withMuslims and liberal Sinhalese. The new government announced plans tolimit many of the broad police and military emergency powers, suspendeda $72 million arms contract with Russia, and began easing the embargoagainst Jaffna.48

Despite UNP attempts to characterize the PA as the party that wouldallow secession, and the PA's pledge in its platform to create 'newadministrative units' to aid devolution, the PA won a clear majority amongSinhalese voters, suggesting that they were willing to look for new solutionsto the problems in the north and east. However, many may have wanted tooust the UNP more than they actually supported PA ethnic policies.49 Theapparent mandate was stengthened by the 9 November 1994 presidentialelections, in which Mrs Kumaratunga became President, and appointed hermother as Prime Minister.50

Kumaratunga came into office with at least perceived support for hernegotiation platform; similarly the LTTE may have had incentives tonegotiate because of economic weakness, the costs of continued war andthe lack of international recognition for their claims. The rebels began tosuggest that they would accept devolution in place of a homeland.51

Kumaratunga would still be restrained by the political influence of thearmed forces, who form a strong lobby not least because of their integralrole in the maintenance of public order. Thus she had to steer betweenLTTE calls for the closure of a key base and a formal ceasefire before thestart of peace talks and military objections to these actions,52 and run therisk that LTTE might return to guerrilla warfare.53 Nonetheless,Kumaratunga negotiated a ceasefire and agreement on development forthe north and east in early 1995; and early talks generated hope for aconfederate state.54

The talks began to break down as the LTTE demanded substantiveconcessions before further discussions; they sought, inter alia, thedismantling of a major army camp and permission for the LTTE to carryguns for self-protection in the government-controlled eastern territory.When Kumaratunga refused to dismantle the base, and rejected the requestto carry guns, the Tigers questioned her commitment to the peace process,55

and in mid-April 1995 broke the truce and returned to the battlefield. Thegovernment was caught off guard and embarrassed, and found it moredifficult to advocate a negotiated solution. The attempted counteroffensive

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was huge, but was widely considered an unmitigated disaster.56 In contrastto 1987, the Indian government has had little response to the escalation inthe conflict.57

A new devolution package was officially announced in August 1995.The plan proposed a 'union of regions' in which much power woulddevolve to regional authorities, with powers like defense, foreign affairs andcurrency reserved for the center. One analyst has suggested that thisrelatively concessional plan was a government attempt to bypass the LTTEand appeal directly to the war-weary Tamil people,58 but many Sinhaleseobjected to it and a government proposal to abolish the executivepresidency.59 And Tamils who feared a Sinhalese-dominated military wouldalso fear the reservation of defense powers to the center; others objected thatreform of the central institutions to reflect political and ethnic realities, notdecentralization, was needed. Tamils also objected to the proposal of thepackage while carrying out the military offensive.60

The government fulfilled another campaign promise by creating threeregional investigative commissions into deaths and human rights abuses.The commissions, which were set up largely to investigate complaints ofrights abuses resulting from the JVP revolt and widespread governmentcrackdown in the 1988-90 period, heard tens of thousands of complaints;some 60,000 disappeared may have died at the hands of the governmentduring this period. The JVP also perpetrated human rights abuses. Yet,while these commissions may represent a step forward, there were limits tothe steps that the government could take against the security forces onwhich it depended to wage war; indeed, some police officials implicated indisappearances continued to hold high-level posts. The commissions'activities and reports will be discussed below.61

In January 1996, a modified version of the peace and devolution plan,which gave the central government some authority to remove regionalgovernments that seek to split, was proposed to parliament, and gaveregional councils greater control over issues like land, law and order, andtaxation; some Tamils objected that it was more centralized than some pastplans and that it did not address the demand for a merger of the north andeast.62 The government also launched offensives, taking Jaffna City andother LTTE strongholds,63 reportedly with the help of US and other westernmilitary advisers.64

Draft constitutional reform packages continued to address devolution,the question of the fate of the executive presidency, and that of fundamentalrights,65 but there appeared to be a decline in support for the PA governmentby mid-1997,66 and negotiations between the government and the oppositionUNP stalled over federalism, the degree of authority to be granted to

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regional councils, and the combining of the north and east into one body.67

Following a public relations debacle in March 1997 when the governmentunveiled a draft that was promptly disavowed by the opposition UNP, thegovernment retreated, and in October/November 1997 unveiled anotherdraft constitution for which it took sole responsibility.68

The new draft sought to democratize state institutions by abolishing theexecutive presidency and establishing a constitutional council for keyappointments; the fundamental rights chapter was strengthened; and,finally, further mechanisms were developed to devolve power to regions.69

The 1978 constitution created the post of the executive president,70

which many say enables authoritarian rule by the president.71 Under thedraft, the Prime Minister is made the head of the Cabinet, the President'swide immunity is removed, and the President's power of appointment to arange of offices is tempered by a requirement for consultation with aconstitutional council, though she retains the power to dissolve parliamentand the powers under the PSO.72

The 1997 draft added a right to life, of which one cannot be arbitrarilydenied, enshrined the right to privacy and expanded freedom of expressionand freedom from arbitrary arrest or detention.73 In addition, while under thecurrent constitution one can only challenge a bill on the grounds that itviolates fundamental rights within a week of its introduction to parliament;once it becomes a law no challenge can be made. The new constitutionwould allow for such challenges to bills within two weeks of introduction,and laws that contravene the fundamental rights chapter of the constitutioncan be challenged for up to two years after passage.74

It is widely feared that devolution is a precursor to dissolution, makingit difficult to achieve the support of two thirds of parliament and a simplemajority of the people that constitutional reform requires.75 In the draft, thesame set of powers would be handed over to each regional council; thequestion of merging the north and the east is left to a referendum in thoseareas.76 While detractors objected that the center still held too much power,a key advance was the protection against arbitrary dissolution of localgovernment; in the new constitution a tribunal would have to approve thedissolution.77

This constitution took its share of criticism as well, from both ends ofthe political spectrum. The UNP was concerned about the extent ofdevolution and drafted counterproposals that emphasized the need for aunitary state and limited devolution, and provided representation forminorities in the Cabinet instead.78 Human rights groups have expressedconcern that the fundamental rights chapter of the draft constitutioncontinues to fall short of the guarantees provided in the ICCPR.79

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The constitutional proposal remained stalled through mid-1999, but itwas rumored that it would finally come before Parliament in August.However, the killing by a suicide bomber in late July of a prominent TULFmember of parliament, Neelan Tiruchelvam, was a further blow.Tiruchelvam had been instrumental in the drafting of peace andconstitutional proposals; he was apparently killed by an LTTE suicidebomber in an attempt to silence a high-level Tamil voice of moderation.Reforms were put on hold, and the LTTE carried out some high-profileattacks: President Kumaratunga lost an eye in a suicide attack in December1999, and in the summer of 2001 the international airport and adjacentmilitary base were assaulted. Renewed efforts by Norway to mediate beganin 2000, and in 2001 the UNP won parliamentary elections. As a result,Ranil Wikremasinghe became prime minister, initiating overtures to theLTTE. As of late 2002, the constitutional reforms have yet to beimplemented, but the prospects for peace have improved. In September thegovernment lifted the ban on the LTTE and initial peace talks beganbetween the government and the LTTE in Thailand.80

THE QUESTION OF ACCOUNTABILITY

Commissions of Inquiry

Kumaratunga moved quickly to carry out her campaign promise toinvestigate disappearances and killings, though the commissionsencountered resistance from the military and police who deniedknowledge of abuses.81 Other steps towards protection of human rightsincluded plans to have senior military officers investigate claims ofdisappearances in the north and east, and the government's creation of aHuman Rights Commission under the president's direct supervision tomonitor complaints that the military, police, and other state bodies haveviolated human rights.82 In September 1997, the final reports of the threecommissions were handed over to the president;83 the governmentacknowledged that between 16,000 and 17,000 had disappeared during thecrackdown on the JVP, and promised to prosecute the perpetrators.84 Amilitary commander in Jaffna even made an unusual public promise toguard against future abuses.85

The reports address political violence by both sides around the countrydating back to 1988;86 they inherited some 5,000 complaints from an earlier,1991 commission of inquiry.87 Human rights advocates objected that theydid not inquire into violence before 1988 after the Kumaratungaadministration came into power. The government subsequently appointed a

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new commission to address some 12,000 complaints not addressed by theprevious reports, covering the same period.88

The reports were extensive, although the degree of investigation variedsignificantly by region.89 The creation of three commissions rather than onewas the source of considerable criticism by human rights groups, andresulted in disparities with regard to, inter alia, the time period (not allreports covered post-election abuses) investigated and the naming ofnames;90 investigation was made more difficult by the military91 and by theongoing conflict.92 The analysis and presentation of information alsovaried,93 as did the recommendations.94

On 30 April 1998, the President established a new, nation-widecommission, whose mandate was to investigate those reports ofdisappearances that the previous three commissions had been unable toaddress or resolve.95 The commission faced heavy criticism for its limitedmandate, covering events after January 1988, but also investigatingcomplaints received through September 1997.96

To address the disappearances in Jaffna following the government'srecovery of it in 1996, the government established in the Ministry ofDefence a Board of Investigation; by November 1997 only 180 of 760complaints were traced.97 The newly established Human RightsCommission, discussed below, was also tasked to investigatedisappearances in Jaffna,98 but the unified commission of inquiry has notreported on the disappearances in Jaffna.99

Other Efforts to Safeguard Human Rights

The commissions of inquiry into disappearances were not the only attemptsto address human rights that the government initiated. The Ombudsman'soffice (established 1981) was made somewhat more accessible;100 there is alsowithin the Ministry of Defence a committee to monitor detention centers.'01

The Human Rights Commission (HRC) was established in 1996 to, interalia, investigate complaints regarding unconstitutional governmentalbehavior and infringements of human rights, serve as conciliator and makenon-binding recommendations regarding redress.102

Some objected that the commission only covered the 'fundamentalrights' enshrined in the Sri Lankan constitution, not the wider rights of theICCPR,103 that it was weaker than its predecessor , the Human Rights Taskforce,104 that it could address individual complaints, but not larger situationsor patterns,105 and that there would be a proliferation of human rights bodiesthat were not particularly effective.106

In defense of the HRC, it was a more efficient and less expensive wayof having fundamental and human rights complaints addressed than

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bringing a case to the Supreme Court, and the deadline for bringingfundamental rights cases was more generous.107 The HRC began operationson 17 March 1997. Legislation requires arrests to be reported to the HRCwithin 48 hours,108 but critics say that it has failed to exercise its otherpowers beyond monitoring the condition of detainees.109

Finally, in response to complaints regarding abuses occurring throughthe use of checkpoints and late-night sweeps, in 1998 the President set upthe President's Committee on Unlawful Arrests and Harassments."0

Accountability and Prosecution

In 1995, 18 members of the security forces and 7 civilian informants werearrested; 10 of these were members of the Special Task Force (STF)."1 MoreSTF members were arrested, but the cases have yet to be completed.112

In mid-1998, six soldiers and a reserve police officer were convicted andsentenced to be executed in the September 1996 killings of four Tamils. Thegovernment ordered a police investigation into claims that a mass gravenearby contained 400 more dead, but little progress was made.113 Otherscharged remained free and even on the job, but in August, five senior policeofficers were forced to go on leave in connection with charges of torture andextrajudicial execution at a government detention center."4

In February 1999, another landmark case was concluded. In the caseinvolving the disappearance of 32 schoolboys in Embilipitiya, seven of thenine persons accused, all but one of whom were security personnel, wereconvicted and sentenced to about ten years in prison.115

Reactions of the Security Forces to Commissions and Prosecutions

Unlike in many other countries that face the question 'to punish or to pardon?'the police and armed forces have not publicly expressed significantopposition to the commissions of inquiry or prosecutions, though they werefrequently intransigent in refusing to aid such investigations. What threatsthere were appear to have been posed by individual members of the police towitnesses in judicial cases and even to members of a commission, but not bythe organizations themselves, which I seek to explain later."6

Additional pressure was put on the government in mid-1998 by ascathing report by the UN Human Rights Commission,"7 but even as thegovernment sought to reveal and punish past abuses, there was a crackdownon civil liberties in the country, and on 4 August the government imposed astate of emergency and canceled elections scheduled for 28 August."8 Thiscontinued the trend of 1997, when emergency rule was progressivelyapplied across the country."9

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THE SECURITY FORCES AND HUMAN RIGHTS

Reform through Education

A nascent attempt at curbing human rights abuses has begun with a jointeffort between the Centre for the Study of Human Rights and theKotalawela Defence Academy. Training seeks to teach both cadets and theirteachers to be more respectful of human rights,120 building on a 1993 pilotprogram for armed forces and police, seeking to change their attitudestowards human rights and its rhetoric.121

Why not Intervene?

The Sri Lankan military has a different history, doctrine and approach thanmany of the Latin American militaries on whom theories about interventionin politics are based; nonetheless it is politically important and its interestsare being threatened, so it is reasonable to ask why it does not intervene.

The military, like its Latin American counterparts, is conceptualized asan internal security force.122 While it exists formally to deter externalaggression, the conflict with the LTTE provides it with its true raison d'etre.The military thus views its mission as internal security, viewing itself as thekey player in conflict resolution. Although the military is not prone topolitical intervention, then, it is politicized.123 The war commands a hugebudget, which one might expect them to be loath to give up,124 and civiliancontrol has also been progressively limited,125 including over the budget.126

Nonetheless, the difference between the Sri Lankan military and some ofthe Latin American militaries already discussed should be emphasized. Asone observer put it, the Sri Lankan military inherited from the British the'Sandhurst tradition', through which they were imbued withprofessionalism and subordination to civilian rule. Rather, politicizationoccurs because the security forces were used as political tools by civilians.127

On this account, abuses are largely the fault of governments with embattledmentalities, which passed these on to the security forces who thencommitted abuses.128 The reason, then, that high-level military officers havenot been prosecuted in Sri Lanka is not that there is a fear that they willstage a coup or otherwise disrupt civilian rule, but that the civilian rulers aredependent upon the military to prosecute the war against the LTTE rebels.129

The police, similarly, became militarized and politicized following the1971 JVP uprising, when the police suddenly found themselves in the roleof defending 'national security';130 efforts are being made to educate policeabout human rights that are parallel to those efforts to educate the military,131

but other institutional reforms remain to be done.132

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CONCLUSIONS

This article has sought to illustrate the challenges faced even by ademocratic regime in a country with a relatively democratic history toaddress the legacy of past human rights abuses. While Sri Lanka arguablyprovides a favorable setting for accountability, the ongoing war limitswillingness to undermine the position of the security forces unduly. Acomplex battle between the two ruling parties provides a further obstacle toreform and devolution, as does the somewhat unpredictable nature of theLTTE's behavior. The political crisis, brought on by the LITE attacks on theairport in July 2001 have fragmented the governing coalition, appeared fora time to doom peace and reform efforts.133 This does not mean, however, asthe Sri Lankan case also demonstrates, that nominal progress cannot betaken on all fronts: constitutional reform, human rights, accountability,military and police reforms, and devolution and peace negotiations. Recentadvances in peace negotiations do provide further cause for hope.

Instead, I would argue, what Sri Lanka has experienced is not entirelydifferent from the traditionally transitional countries I discussed at theoutset, which also made complex trade-offs. The differences are of contextand history, and are significant, but many of the choices aboutaccountability appear to be similar: accountability and reform can be had,but can probably not both be had in equal measure. In the case of Sri Lanka,far greater strides have been made towards accountability, through thecommissions of inquiry and through several high-profile prosecutions, thantowards reform and conflict resolution, for reasons I have discussedpreviously. The latter have been rather hard to achieve not only because themilitary would resist significant internal reforms, but because it sees itselfas the protector of the nation, and thus will resist what it sees as excessiveconcessions to the LITE.

NOTES

1. See, e.g., Margaret Popkin and Naomi Roht-Arriaza, 'Truth as Justice: InvestigatoryCommissions in Latin America', Law and Social Inquiry 20/1 (Winter 1995) p.81; Jon M.Van Dyke and Gerald W. Berkley, 'Redressing Human Rights Abuses', Denver Journal ofInternational Law and Policy 20 (1992) p.243.

2. K.M. de Silva, 'Sri Lanka: Surviving Ethnic Strife', Journal of Democracy 8/1 (Jan. 1997)p.97.

3. Samuel P.Huntington, The Soldier and the State: The Theory and Politics of Civil-MilitaryRelations (Cambridge, MA: Belknap/Harvard UP 1964); Alfred Stepan, Rethinking MilitaryPolitics: Brazil and the Southern Cone (Princeton UP 1988); Donald Horowitz, CoupTheories and Officers' Motives: Sri Lanka in Comparative Perspective (Princeton UP1980); Samuel Finer, The Man on Horseback: The Role of the Military in Politics (Boulder,

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CO: Westview 1962, 1988); and Samuel Huntington, The Third Wave: Democratization inthe Late Twentieth Century (Norman: U. of Oklahoma Press 1991).

4. Eric A. Nordlinger, Soldiers in Politics: Military Coups and Governments (EnglewoodCliffs, NJ: Prentice-Hall 1977) pp.66-71; David Pion-Berlin, 'Military Autonomy andEmerging Democracies in South America', Comparative Politics 25/1 (Oct. 1992)pp.83-102; and Philip J. Williams and Knut Walter, Militarization and Demilitarization inEl Salvador's Transition to Democracy (U. of Pittsburgh Press 1997) pp.158-9.

5. Jorge Correa Sutil and Francisco Jimenez, '"No Victorious Army Has Ever BeenProsecuted": The Unsettled Story of Transitional Justice in Chile', in A. James McAdams(ed.) Transitional Justice and the Rule of Law in New Democracies (U. of Notre Dame Press1997); Jose Zalaquett, 'Balancing Ethical Imperatives and Political Constraints: TheDilemma of New Democracies Confronting Past Human Rights Violations', Hastings LawJournal 43/6 (Aug. 1992) pp.1432-8; Jorge Mera, 'Chile: Truth and Justice under theDemocratic Government', in Naomi Roht-Arriza (ed.) Impunity and Human Rights inInternational Law and Practice (Oxford: OUP 1995) p.171; Mark Ensalaco, 'MilitaryPrerogatives and the Stalemate of Chilean Civil-Military Relations', Armed Forces andSociety 21/2 (Winter 1995) pp.255-70; Clifford Krauss, 'Chilean Military Faces Reckoningfor Its Dark Past', New York Times, 3 Oct. 1999, pp.1, 10.

6. Peace Agreement of 16 Jan. 1992 between the Government of El Salvador and the FMLN,UN Doc. A/46/864, annex, especially Chs 1, 2, 6, and 7; Williams and Walter (note 4); FromMadness to Hope: the 12-Year War in El Salvador, Report of the United NationsCommission on the Truth for El Salvador, UN Doc. S/25500, annex; Thomas K. Adams,'Disengage, Disarm, Demobilize: The Success of ONUSAL in Implementing the 1992 ElSalvador Peace Accords', Low Intensity Conflict and Law Enforcement 3/2 (Autumn 1994)pp.290-300; ONUSAL/Procuraduria para la Defensa de los Derechos Humanos, GuiaSobre las Normas y Procidimientos de la Policia Nacional Civil (San Salvador, El Salvador:ONUSAL 1994); Fuerzas Armadas de El Salvador and ONUSAL, Doctrina Militar yRelaciones Ejercito/Sociedad (San Salvador, El Salvador: FAES/ONUSAL 1993).

7. Ronnie Kasrils, 'Progress in Transformation', in Jakkie Cilliers (ed.) Continuity in Change,The SA Army in Transition, monograph no.26 (Pretoria: Institute for Security Studies 1998),available at www.iss.co.za/Pubs/Monographs/No.6/Kasrils.html>; Robert J. Griffiths,'South African Civil-Military Relations in Transition: Issues and Influences', Armed Forcesand Society 21/3 (Spring 1995); Janine Rauch, 'State, Civil Society, and Police Reform inSouth Africa', occasional paper for the Centre for the Study of Violence and Reconciliation,available at www. wits. ac.za/csvr/papers/papstate.html>; and Constitution of the Republic ofSouth Africa (Adopted 8 May 1996), amended 11 October 1996), available at<www.polity.org.za/govdocs/constitution/saconst.htrnl>.

8. Sumantra Bose, States, Nations, Sovereignty: Sri Lanka, India and the Tamil EelamMovement (New Delhi: Sage 1994); Dennis Austin, Democracy and Violence in India andSri Lanka (London: Pinter 1994) p.xvii; William McGowan, Only Man is Vile: The Tragedyof Sri Lanka (NY: Farrar, Straus, and Giroux 1992); Jonathan Spencer, A Sinhala Village ina Time of Trouble: Politics and Change in Rural Sri Lanka (New Delhi: OUP 1990); idem(ed.) Sri Lanka: History and the Roots of Conflict (London: Routledge 1990); HowardWriggins, 'Sri Lanka: Negotiations in a Secessionist Conflict', in I. William Zartman (ed.)Elusive Peace: Negotiating an End to Civil Wars (Washington DC: Brookings 1995);Stanley J. Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy (U. ofChicago Press 1986) p. 13; idem, Leveling Crowds: Ethnonationalist Conflicts andCollective Violence in South Asia (Berkeley, CA: UC Press 1996) pp. 15-16; see alsoAmbalavanar Sivaraja, Politics of Tamil Nationalism in Sri Lanka (New Delhi: South AsianPublishers 1996).

9. Constitution of the Democratic Socialist Republic of Sri Lanka, Articles 10-13; see Art. 15for limitations.

10. Nadesan Centre, Emergency Law, Docinform 41 (1992) pp.3-4; Docinform 65 (1994);Emergency Regulations No.4 of 1994, The Gazette of the Democratic Socialist Republic of

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Sri Lanka—Extraordinary (4 Nov. 1994).11. Bose, States (note 8) p.74; Tambiah, Sri Lanka (note 8) pp.42-5.12. These were members of the Tamil United Liberation Front Party. Bose, States (note 8) p.79.13. Amnesty International, 'Security Measures Violate Human Rights', AI Index ASA 37/12/95

(London: Amnesty International 1995) p.3.14. Ministry of Justice, Constitutional Affairs, and National Integration, The Government's

Proposals for Constitutional Reform (Colombo: Dept. of Government Printing 1997);Amnesty International, 'Sri Lanka: Security Measures' (note 13) p.17; see V. Nayana, 'Newrights clash with existing laws', The Island, 4 May 1997, p.16; Asian Legal ResourceCentre, Human Rights Related Legal Reforms in Sri Lanka: The Final Document (HongKong: ALCRL 1996) p.3.

15. Robert A. Denemark, 'Democracy and the World System: The Political Economy of SriLanka's Vicious Electoral Cycle', in Chronis Polychroniou (ed.) Perspectives and Issues inInternational Political Economy (Westport, CT: Praeger 1992) pp. 194-6; A.C. Alles, TheAssassination of a Prime Minister (NY: Vantage 1986).

16. Alles (note 15) pp.37-8.17. Horowitz (note 3) passim and pp. 146, 208.18. Denemark (note 15) pp.203-4; Tambiah, Sri Lanka (note 8) pp.13-14.19. Bose, States (note 8) p.46.20. Ibid., pp.68-72; Bruce Matthews, 'Devolution of Power in Sri Lanka', The Round Table,

330 (1994) p.233.21. Steven Kemper, 'J.R. Jayewardene, Righteousness, and Realpolitik', in Spencer, Sri Lanka

(note 8) pp.191, 200-1.22. Bose, States (note 8) p.94.23. Ibid., p.74.24. Matthews (note 20) p.234; de Silva, 'Sri Lanka' (note 2) p.103.24. Prevention of Terrorism Act, Gazette (1979)/48, and Prevention of Terrorism, Amendment

to the Prevention of Terrorism Act, Gazette (19 March 1982), pt. II, supp.26. Bose, States (note 8) p.74; Tambiah, Sri Lanka (note 8) pp.42-5, argues that the Act has

progressively generated the very militancy and separatist sentiments it was meant to repress.27. Bose, States (note 8) p.79.28. Tambiah, Leveling Crowds (note 8) pp.226-9.29. Bose, States (note 8) p.73; Tambiah, Sri Lanka (note 8) pp.15, 22; Tambiah, Leveling

Crowds (note 8) pp.94-100; Denemark (note 15) p.206; Marshall R. Singer, 'Sri Lanka'sEthnic Conflict: Have Bombs Shattered Hopes for Peace?' Asian Survey 36/11 (Nov. 1996)p.1149.

30. Austin (note 8) p.74.31. Tambiah, Sri Lanka (note 8) pp. 16, 25.32. Ibid. p.26.33. Bose, States (note 8) pp.139-41; S.D. Muni, Pangs of Proximity: India and Sri Lanka's

• Ethnic Crisis (New Delhi: Sage 1993) pp.74-5; Ponmoni Sahadevan, India and OverseasIndians: The Case of Sri Lanka (New Delhi: Kalinga Publications 1995).

34. Muni (note 33) pp.94-5, 201.35. Ibid, pp.102-3.36. Bose, States (note 8) pp.131, 153-6. Austin (note 8) pp.87-92; Partha S. Ghosh, 'Sinhala-

Tamil Ethnic Conflict and India', Economic and Political Weekly, 24 June 1995, p.1486;Muni (note 33) p. 105; International Centre for Ethnic Studies, Sri Lanka: The DevolutionDebate (Colombo: International Centre for Ethnic Studies 1996) p.232.

37. Matthews (note 20) p.235.38. Bose, States (note 8) pp.131-4, 157-8, 166. Austin (note 8) pp.74-5.39. Tambiah, Leveling Crowds (note 8) p.271; Mick Moore, '"Guided Democracy" in Sri

Lanka: The Electoral Dimension', Journal of Commonwealth and Comparative Politics,32/1 (March 1994) p.l; S. Guhan, 'Indo-Sri Lanka Discord', Economic and PoliticalWeekly, 7 Jan. 1995, p.35.

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40. Matthews (note 20) p.237.41. Ibid. pp.238-40.42. Moore, 'Guided Democracy' (note 39) pp. 1-2.43. 'Sri Lanka: In the Tigers' den', The Economist, 5 March 1994, pp.38-9; Manik de Silva,

'Silent Tigers', Far Eastern Economic Review, 17 March 1994, p.28. See also John-ThorDahlburg, 'Sri Lankans got to Polls in East Despite Tamil Boycott', Los Angeles Times, 2March 1994, p.A9; Manik de Silva, 'Southern Surprise', Far Eastern Economic Review, 1April 1994, p.20.

44. Inform, 'Parliamentary Elections 1994: Special Report 1: Polls Related Violence',photocopy (Colombo: Inform/Movement for Free and Fair Elections 1994) p. 13; Movementfor Free and Fair Elections, 'Interim Report on the Sri Lanka Parliamentary Elections ofAugust 16th 1994', photocopy (Rajaginya, Sri Lanka: Movement for Free and FairElections 1994) pp.2-19; International Human Rights Law Group, Report of theInternational NGO Observer Mission to the Sri Lanka Parliamentary Elections(Washington DC: International Human Rights Law Group 1994) pp. 1-6.

45. S.W.R. de A. Samarasinghe, 'The 1994 Parliamentary Elections in Sri Lanka: A Vote forGood Governance', Asian Survey 34/12 (Dec. 1994) pp.1019, 1021-2, 1024-6; RichardBourne, 'Observing Sri Lanka's Parliamentary Election', The Round Table, 333 (1995)pp.67, 69-71; Mervyn de Silva, 'New Broom', Far Eastern Economic Review, 1 Sept. 1994,p.16; Gamini Keerawella and Rohan Samarajiva, 'Sri Lanka in 1993', Asian Survey 34/2(Feb. 1994) p.171.

46. Samarasinghe (note 45) pp. 1022-3; Singer (note 29) p. 1150; Hu Guangyao, 'Why the SriLankan People's Alliance Won', Beijing Review, 5-11 Sept. 1994, p.21; John F. Burns,'Long-Ruling Sri Lanka Party Makes Way for 3d in Dynasty', New York Times, 19 Aug.1994, p.A8.

47. Samarasinghe (note 45) p.1031; Bourne (note 45) p.67; de Silva, 'Sri Lanka' (note 2) p.104.48. Chandra R. De Silva, 'The Elections of 1994 in Sri Lanka: Background and Analysis',

Round Table, 334 (1995) pp.211-12; John F. Burns, 'Sri Lankan Rebels and NewGovernment Agree to Talks', New York Times, 5 Sept. 1994, sect. 1, p.5.

49. Samarasinghe (note 45) pp.1027, 1032.50. De Silva, 'The Elections of 1994' (note 48) pp.207, 212; de Silva, 'Sri Lanka' (note 2)

p.109; 'Sri Lanka: Vote for Reconciliation', Economic and Political Weekly, 20 Aug. 1994.51. Sumantra Bose, 'Tamil Self-Determination in Sri Lanka: Challenges and Prospects',

Economic and Political Weekly, 24 Sept. 1994, p.2537; A.G. Noorani, 'Challenge of Power-Sharing in Sri Lanka', Economic and Political Weekly, 25 March 1995, p.622.

52. Mervyn de Silva, 'War and Peace: Army halts offensive as peace process gets under way',Far Eastern Economic Review, 13 Oct. 1994, p.32.

53. Bose, 'Tamil Self-Determination' (note 51), pp.2537-9; Mervyn de Silva, 'The Lady'sMandate: Kumaratunga sees her win as a vote for peace', Far Eastern Economic, 24 Nov.1994, p.24.

54. De Silva, 'The Elections of 1994' (note 48) p.214; John-Thor Dahlburg, 'Sri Lanka TruceRaises Peace Hopes', Los Angeles Times, 7 Jan. 1995, p.A12.

55. Howard B. Schaffer, 'Sri Lanka in 1995: A Difficult and Disappointing Year', Asian Survey,36/2 (Feb. 1996) p.217; Singer (note 29) pp.1150-1; 'Darkness visible', The Economist, 4March 1995, p.37.

56. Schaffer (note 55) pp.217-18; Manik de Silva, 'Back to War: Tamil Rebels Break Trucewith Major Attacks', Far Eastern Economic Review, 25 May 1995, p.21; Singer (note 29)p.1151; de Silva, 'Sri Lanka' (note 2) pp.109-10. Sumantra Bose, 'War and Peace in SriLanka: Government's Reform Proposals and Beyond', Economic and Political Weekly, 30Sept. 1995, p.2426.

57. 'This Time, Delhi is Keeping Quiet', Asiaweek, 17 Nov. 1995. p.34.58. Singer (note 29) pp.1151-2; Suzanne Goldenberg, 'Retreat for the Tigers of Jaffna',

Guardian, 7 Nov. 1995, p.T6.59. Schaffer (note 55) pp.219-21; Lakshman Marasinghe, 'Some Thoughts on the Devolution

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Package', in International Centre for Ethnic Studies (note 36) p.16.60. Bose (note 56) pp.2424-5. G.G. Ponnambalam (General Secretary, All-Ceylon Tamil

Congress), 'Package Not a Matter to Laugh At', Sunday Times, 10 Sept. 1995; JayadevaUyangoda, 'Extremism Pays Not; Moderation Does', Sunday Times, 3 Sept. 1995; ReggieFernando, 'War to Persuade LTTE to Talk Peace', Sunday Observer, 11 June 1995, p.3.

61. 'Voices of the Dead', The Economist, 15 April 1995, p.37; Molly Moore, 'Sri Lanka: ANation Divided', Washington Post, 9 May 1993, p.A25. Steve Coll, 'Silence in the KillingZone', Washington Post Magazine, 16 Jan. 1994, p.W16; John F. Burns, 'Sri Lankans HearDetails of Decade of Slaughter', New York Times, 21 May 1995, sect. 1, p.10.

62. Neelan Tiruchelvam, 'Devolution of Power, the Problems and Challenges', in InternationalCentre for Ethnic Studies (note 36) pp.40-1, see also appendix C; Idem, 'Rough Edges', FarEastern Economic Review, 15 Feb. 1996, p.28; Manik de Silva, 'Carrot and Stick: Colomboproposes to give Tamils greater autonomy', Far Eastern Economic Review, 1 Feb. 1996,p.21.

63. Singer (note 29) pp.1152-3; Manik de Silva, 'Cornered in Colombo', Far EasternEconomic Review, 15 Feb. 1996, pp.14-15.

64. Uli Schmetzer, 'Tide Runs Against Sri Lanka Rebels; US Advisers Help Government inDrive to Defeat Tamils', Chicago Tribune, 8 Aug. 1996, p.10.

65. For a cogent analysis of the politics and the jurisprudence surrounding the existingconstitution, see Radhika Coomaraswamy, Ideology and the Constitution: Essays onConstitutional Jurisprudence (Colombo: International Centre for Ethnic Studies 1997).

66. 'Sri Lanka: Uneasy Calm', Economic and Political Weekly, 14 June 1997, p.1388.67. 'Sri Lanka: Movement without Progress', Economic and Political Weekly, 21 June 1997,

p. 1434.68. Ministry of Justice, Constitutional Affairs, Ethnic Affairs and National Integration (note

14).69. See Dinusha Panditaratne and Pradeep Ratnam (eds.) The Draft Constitution of Sri Lanka:

Critical Aspects (Colombo: Law and Society Trust 1998) p.vi.70. Pradeep Ratnam, 'The Question of Executive Presidency in Sri Lanka', in Panditaratne and

Ratnam (note 69) pp.41-4. On the experience and relative merits of presidential andparliamentary systems in Sri Lanka, see Radhika Coomaraswamy, 'ParliamentaryDemocracy v. the Presidential System: A Realist Approach', Law and Society TrustFortnightly Review 3/42 (Aug. 1992) pp.2-6, and H.L. de Silva, 'Some comments on Dr(Ms) R. Coomaraswamy's Paper on Parliamentary Democracy v. Presidential System', inthe same issue, pp.14-15.

71. Rohan Edrisinha, 'Critical Overview: Constitutionalism, Conflict Resolution and the Limitsof the Draft Constitution', in Panditaratne and Ratnam (note 69) p.13.

72. Ratnam (note 70) pp.47-53. On the workings of the constitutional council, see C.S.Dattatreya, 'The Proposal for a Constitutional Council', in Panditaratne and Ratnam (note69) p.76, and Ministry of Justice, Constitutional Affairs, and National Integration (note 14)Art. 122. See generally ibid. chs VII and XXIII; Leo Fernando, 'Position of MinistrySecretaries under the New Constitutional Proposals', Daily News, 17 Feb. 1999, p.8.

73. Deepika Udagama, 'Fundamental Rights: The Need for a Futuristic Vision', in Panditaratneand Ratnam (note 69) pp.119-20. See also Ministry of Justice, Constitutional Affairs, andNational Integration (note 14) Chapter III.

74. G.L. Peiris, 'Introductory Overview: Constitutional Reform and Devolution of Power', inPanditaratne and Ratnam (note 69) p.6. See also Edrisinha (note 71) pp. 19-21; Ministry ofJustice, Constitutional Affairs, and National Integration (note 14) Arts 165 and 168.

75. Tressie Leitan, 'Regional Councils and the Devolution of Power', Daily News, 9 Sept. 1995;'Graduating to Mediation', The Island, 23 Aug. 1998, p.11; Nalin de Silva, 'Deviousnessand the Package', The Island, 12 Aug. 1998, p.15; 'Business Offer Peace Plan', Sri LankaMonitor, Oct. 1998; and Jehan Perera, 'Is Sri Lanka Ready for Peace Talks Again?' TamilTimes, 17/12 (15 Dec. 1998) p.11.

76. Ministry of Justice, Constitutional Affairs, and National Integration (note 14) Chapter XV.

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77. Edrisinha (note 71) pp.27-30.78. UNP Constitutional Proposals, (photocopy, 1997, on file with current author), section on

'National Power Sharing'; see also 'UNP Seeks New Political Culture', (photocopy 1997,on file with current author). Compare Ministry of Justice, Constitutional Affairs, andNational Integration (note 14), chapter XXII, with 'UNP Seeks New Political Culture',section on 'An Independent National Police Commission and Provincial PoliceCommissions'; see also '[Text of the] Proposals to the Parliamentary Select Committee onConstitutional Reform by the United National Party, 29th January 1998', in Panditaratneand Ratnam (note 69) p.344.

79. Sumudu Atapattu, 'A Commentary on the Draft Fundamental Rights Chapter', in Law andSociety Trust, Sri Lanka: State of Human Rights 1998 (Colombo: Law and Society Trust1998), pp.174-5; Mario Gomez, 'Sri Lanka's Proposed Bill of Rights: Lacking inImagination and Vision', Law and Society Trust Fortnightly Review 7/113 (March 1997)p.24.

80. Terence Neiler, 'Sri Lanka: Vote Set', New York Times, 29 Oct. 1999, p.A6; Celia W.Dugger, 'A Leading Sri Lankan Moderate is Killed', New York Times, 30 July 1999, p.A10;Celia W. Dugger, 'Sri Lanka Peacemaker's High-Risk Life, and Death', New York Times, 24Aug. 1999, pp.Al, A8.

81. Burns, 'Sri Lankans Hear Details' (note 61). Special Commissions of Inquiry, Gazette of theDemocratic Socialist Republic of Sri Lanka, 23 Sept. 1994, pt II, supplement; Commissionsof Inquiry Act, Gazette (1948)/17 and Special Presidential Commissions of Inquiry Act,Gazette (1978), law no. 7, amended by Act, Gazette (1978)/4.

82. Gaston de Rosayro and Matthew Chance, 'Military officers to probe cases of"disappearances'", South China Morning Post, 16 Dec. 1996, p.15.

83. Amnesty International, 'Sri Lanka: Amnesty International Welcomes News that Reports ofCommissions will be Made Public', AI Index ASA 37/023/1997, 4 Sept. 1997, available atwww.web.amnesty.org/ai.nsf/index/ASA370231997>.

84. 'News in Brief: Sri Lanka's Disappeared', Guardian, 4 Sept. 1997, p.12.85. John F. Burns, 'Unable to Beat Rebels, Sri Lanka Eases Stance', New York Times, 5 Nov.

1997, p.A3.86. Human Rights Watch, 'Sri Lanka: Human Rights Developments', Human Rights Watch

World Report 1999, available at www.hrw.org/hrw/worldreport99/asia/srilanka.html>.87. Amnesty International, 'Sri Lanka: Time for Truth and Justice', April 1995, AI Index

37/04/95, pp.13-14. Permanent Mission of Sri Lanka, Situation Report (Colombo/Geneva:Permanent Mission 1993) p.8.

88. Human Rights Watch (note 86); see also Inform, Lobby Document: UN Commission onHuman Rights, 1995 (Colombo: Inform 1995) p.3; Civil Rights Movement, TheInvestigation of 'Disappearances' in Sri Lanka (Colombo: Civil Rights Movement 1998);see also Imran Vittachi, 'That Time of Terror', Sunday Times, 15 March 1998, pp.1, 10.Author's interview with the chair of the southern commission and the new island-widecommission, Mrs Manouri Muttetuwegama, 15 Feb. 1999, Colombo.

89. Final Report of the Commission of Inquiry into the Involuntary Removal of Persons in theCentral, Northwestern and Uva Provinces, Sessional Paper No. VI (Colombo: Dept. ofGovernment Printing 1997); Final Report of the Commission of Inquiry into the InvoluntaryRemoval or Disappearances of Persons in the Northern and Eastern Provinces, SessionalPaper No. VII (Colombo: Dept. of Government Printing 1997); and Final Report of theCommission of Inquiry into Involuntary Removal or Disappearance of Persons in theWestern, Southern, and Sabaragamuwa Provinces, Sessional Paper No. V (Colombo: Dept.of Government Printing 1997). On weaknesses of the commissions, see author's interview,not for attribution, Colombo, 9 Feb. 1999.

90. Final Report...Northern and Eastern Provinces (note 89) pp.94-7; Final Report...Western,Southern, and Sabaragamuwa Provinces (note 89) pp.12, 29. The latter commissionsubmitted a list of those implicated under separate cover to the President. Mario Gomez,Emerging Trends in Public Law (Colombo: Vijitha Yapa Bookshop 1998) pp.246-7, 257-8.

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91. Final Report...Northern and Eastern Provinces (note 89) pp.3-4.92. Ibid, p.57. University Teachers for Human Rights (Jaffna), Information Bulletin, 24 Aug.

1997, p. 1.93. Final Report... Western, Southern, and Sabaragawuma Provinces (note 89) pp.5-97 went

the furthest.94. Ibid. pp.75-97; and Final Report...Central, Northwestern, North Central and Uva

Provinces (note 89) pp.2-3.95. 'By Her Excellency Chandrika Bandaranaike Kumaratunga, President of the Democratic

Socialist Republic of Sri Lanka', Ref. No.SP/6/N/214/97 (photocopy on file with currentauthor).

96. Muttetuwegama interview (note 88).97. The report of this board was not released publicly.98. Amnesty International, 'Sri Lanka: Government's Response to Widespread

"Disappearances" in Jaffna', 27 Nov. 1997, AI Index ASA 37/24/97, pp. 1-2; the numbersvary somewhat: the US Department of State puts the number of complaints at 2,500, see SriLanka Country Report on Human Rights Practices for 1997, available atwww.state.gov/www/global/human_rights/1997_hrp_report/srilanka.html>, p.5; CivilRights Movement of Sri Lanka, 'The Investigation of "Disappearances" in Sri Lanka: areview at mid-July 1998', CRM photocopy, 1998.

99. 'News Review', Tamil Times, 17/12 (15 Dec. 1998) p.7. 'SLMC submits list of 500 missingpersons to Presidential Disappearances Commission,: Daily News, 23 Feb. 1999, p.l.

100. Citizens could not petition the Ombudsman directly until 1994; before that they had topetition through their MP. Deepika Udagama, 'A Case Study of the Office of theOmbudsman', in Law and Society Trust, Sri Lanka: State of Human Rights 1997 (Colombo:Law and Society Trust 1997) pp.113-37.

101. Author's interview with Justice Jayalath and Assistant Legal Secretary to the Minister ofDefence Jinasena, Colombo, 18 Feb. 1999.

102. Parliament of the Democratic Socialist Republic of Sri Lanka, 'Human Rights Commissionof Sri Lanka Act/21 of 1996' Gazette, Pt 2 (23 Aug. 1996) p.4, Art. 10. 'Lankan HumanRights Commission', Law and Society Trust Review, 9/13 (Sept. 1998) p.31; Mario Gomez,'Sri Lanka's New Human Rights Commission', Human Rights Quarterly 20 (1998)pp.281-302.

103. Neelan Tiruchelvam, 'A Perspective on the Human Rights Commission Bill', Sri LankaExpress, 21 July 1996; Deepika Udagama, 'Human Rights Commission Bill (1995)', Lawad Society Trust Fortnightly Review 6/96 (Oct. 1995) pp. 13-17; Amnesty International, 'SriLanka: The Human Rights Commission Bill', Dec. 1995, AI Index ASA 37/25/95, p.3; seethe Constitution (note 9), Chapter III.

104. Amnesty International, 'Sri Lanka: The Human Rights Commission Bill' (note 103) p.3.Human Rights Task Force, Annual Report (Colombo: HRTF, 1994); author's interview withJustice JSA Soza (retired), 19 Feb. 1999, Colombo.

105. Suriya Wickremasinghe, 'A National Human Rights Commission for Sri Lanka?' TamilTimes, April 1996, pp.16-18.

106. Suriya Wickremasinghe, 'A National Human Rights Commission for Sri Lanka?' Law andSociety Trust Fortnightly Review 6/100 (Feb. 1996) p.7; Deepika Udagama, 'Human RightsCommission Bill' (note 103) p.13.

107. Author's interview with M.D.R.A.M. Senanayake, formerly of the HRC, 22 Feb. 1999,Colombo.

108. T. Abaratham, 'Human Rights Commission in Operation', Daily News, 18 March 1997,pp.1, 20; Gomez, 'Sri Lanka's New Human Rights Commission' (note 102) p.295.

109. Mario Gomez, 'The Sri Lankan Human Rights Commission', Law and Society Trust Review9/13 (Sept. 1998) pp.31-2. Author's discussion with Sri Lankan politicians, human rightsactivists and others involved with the commission, not for attribution, Colombo, Feb. 1999.

110. Author's interview with MP and Minister of Science and Technology Batty Weerakoon, 18Feb. 1999, Colombo; and K.M.M. Sherriff, Senior Assistant Secretary, Ministry of Justice,

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Constitutional Affairs, Ethnic Affairs and National Integration, 23 Feb. 1999, Colombo. Seealso 'Performance Report - July 12, 1998 to December 31, 1998: President's Committee onUnlawful Arrests and Harassments' (photocopy on file with current author); President'sCommittee on Unlawful Arrests and Hamssments-Meeting No. 31 (Colombo: Ministry ofJustice, Constitutional Affairs, Ethnic Affairs and National Integration 1999) (photocopy onfile with current author).

111. Amnesty International, 'Sri Lanka: Amnesty International Welcomes Government Action toStop Death Squad Activities', 1 Sept. 1995, AI Index ASA 37/17/95.

112. US Dept. of State (note 98) p.4.113. 'Foreign Ministry Corrects Information on Chemmani, Daily News, 19 Feb. 1999, p.18.

'Judge's Absence Aborts Chemmani Hearing', 26 March 1999, available at<www.tamilnet.com/>.

114. Civil Rights Movement of Sri Lanka, The Alleged Mass Burials at Chemmany in the North(Colombo: Civil Rights Movement 1998). 'Executions ordered for Rights Abuses', ChicagoTribune, 4 July 1998, p.4. Human Rights Watch (note 86). V. Varathasuntharam, 'NineSoldiers Indicted on Abduction and Murder Charges', The Island, 3 July 1997, andSharmini Fernando, 'Bitter Victory: Krishanthi Kumaraswamy, The Women's Vigil, and theVerdict', Options 14 (1998) p.17.

115. P.D.A.S. Gunasekera, 'Ten Years RI for Seven Accused, Two Acquitted', Daily News, 11Feb. 1999, pp.1, 20; J. Antony, 'Seven Accused Including Ex-principal Sentenced to 10Years', The Island, 11 Feb. 1999, p.l. See also P.D.A.S. Gunasekera, 'Witness DescribesHow Torture Instrument was Used', Daily News, 11 June 1996; and idem., 'First Accusedtold her that a Few Children should be Kidnapped, Witness Says', Daily News, 26 Feb.1996; 'Tragedy, Trauma and Finally Justice at Embilitpitiya', Daily News, 17 Feb. 1999,p.3.

116. Jhalapandithagedera Jayaratne et al. v. Chandrananda de Silva et al., Supreme Court of theDemocratic Social Republic of Sri Lanka, No.609/96 (21 Sept. 1998)); S. Dooriyakande,'Evidence Postponed after Attorney Pleads Threats', and 'Widow gets Death Threat afterEvidence', Daily News, 18 Jan. 1994; P.D.A.S. Gunasekera, 'Army Men in Plain ClothesHovering around Witnesses', Daily News, 28 Feb. 1996.

117. P.S. Suryanarayana, 'UN Agency Flays Killings in Sri Lanka', The Hindu, June 14 1998;'Sri Lanka: The Role of the International Community' in Human Rights Watch (note 86).

118. Nadesan Centre, Emergency Law, Docinform 103, 104, 108, 110, and 112 (1988). See alsoHuman Rights Watch (note 86) and 'Balancing Security Interests with Rights of Citizens',Sunday Observer, 12 April 1998.

119. Kumar Wethasinghe, 'Sunday Times Defamation Case: Date Given to Consider Judge'sOrder', Daily News, 10 June 1996; Lakshman Gunesekera, 'Freedom of Expression andMedia Freedom', in Law and Society Trust, Sri Lanka ... 1998 (note 79) pp.113-14;Elizabeth Nissan, 'Reform at Risk? Continuing Censorship in Sri Lanka (March 1997), Lawand Society Trust Fortnightly Review 7/114 (April 1997) pp.1—2. Author's conversationswith human rights activists, Colombo, Feb. 1999.

120. Centre for the Study of Human Rights, 'Human Rights and Wrongs: A Human RightsAwareness Programme: For Passing Out Cadets at Kotalawela Defence Academy 28thNovember 1998' (Colombo: Centre for the Study of Human Rights 1998), photocopy on filewith current author.

121. Centre for the Study of Human Rights, Annual Report, 1994 (Colombo: Univ. of Colombo1994) p.3, as well as the reports for 1995, p.7, and 1997, p. 10. Author's interview withSomasiri Devendra, Colombo, 8 and 19 Feb. 1999.

122. Imtiaz Ahmed, 'Rebuilding Sri Lankan Security', Peace Review 8/2 (1996) p.275; Wriggins(note 8) p.39.

123. Ahmed (note 122) p.276; US Dept. of State (note 98) p.3.124. Ahmed (note 122) p.277.125. de Silva, 'War and Peace' (note 52).126. Author's interview with Batty Weerakoon, 18 Feb. 1999, Colombo.

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127. Author's interview with Dr Deepika Udagama, 17 Feb. 1999, and other interviews, not forattribution, Feb. 1999, Colombo.

128. Author's interview with retired military officer, not for attribution, Feb. 1999, Colombo.129. Author's interviews with Sri Lankan politicians and human rights experts, not for

attribution, Feb. 1999, Colombo.130. I am grateful to Deepika Udagama for this point. Author's interview, 17 Feb. 1999,

Colombo.131. Sri Lanka Foundation Institute, Training Programme for Law Enforcement (Police) Officers

on Human Rights and Gender Awareness; Progress Report: January 1999 (Colombo: SLFI1999) (photocopy on file with current author); for the proposal for the training, see Trainingof Law Enforcement (Police) Officers on Law, Society, and Human Rights (Colombo: SLFI1997) (photocopy on file with current author). See also Sri Lanka Foundation, Seminar onLaw Enforcement Agencies and their Role in the Implementation of the International Bill ofHuman Rights (Colombo: Sri Lanka Foundation 1987); and Sri Lanka Foundation, The Roleof the Law Enforcement Officer in the Protection of Human Rights (Colombo: Sri LankaFoundation 1986); Author's interview with Dr Udagama, 17 Feb. 1999, Colombo.

132. Asian Legal Resource Centre, Human Rights Related Legal Reforms in Sri Lanka: TheFinal Document (Hong Kong: ALCRL 1996) pp.20-2.

133. Celia W. Dugger, 'Sri Lanka's President Dissolves Parliament and Calls Elections', NewYork Times, 11 Oct. 2001.

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