Tamil Political Prisoners in Sri Lanka: A Road to Nowhere?

Editor's Note: Sri Lanka represents that rare turnaround in counterinsurgency, where a beleaguered government fighting one of the world’s most formidable insurgencies—the Tamil Tigers—gained momentum and eventually crushed the rebels. But what happened after victory? Instead of redressing many of the grievances that allowed the insurgency to flourish, the government conducted a broad crackdown on the Tigers’ supporters, imprisoning many on the basis of at most scant evidence. Taylor Dibbert of the Carnegie Council for Ethics in International Affairs calls on the United States and other countries to demand justice for the political prisoners as part of a broader effort to make transitional justice in Sri Lanka work.

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Sri Lanka’s Tamil political prisoners have been back in the spotlight recently. Tamil political prisoners are ethnic Tamils who were allegedly members of or connected to the Tamil Tigers, a separatist group. Some have been convicted on charges of terrorism, though most have not. Many of the charges are believed to be fabricated and based upon coerced confessions, which were recorded in a language foreign to the accused. The new government has repeatedly promised to deal with the issue, but it has done little. While Obama may be keen to champion Sri Lanka’s peaceful transfer of power to bolster his foreign policy record, Colombo’s failure to act more decisively on political prisoners is unjust, calls into question its commitment to transitional justice, and illustrates that Sri Lanka is far from a clear-cut success story.

When the war ended in May 2009, the Sri Lankan military detained approximately 12,000 alleged members of the Tamil Tigers. Most of them were forced to participate in a government-sponsored rehabilitation program for ex-combatants and were subsequently released. Over the course of Sri Lanka’s brutal, twenty-six year war, tens of thousands of political prisoners were detained by the Sinhalese-dominated state and kept in prisons or detention centers throughout the country. Today, there are believed to be approximately 200 Tamil political prisoners, some of whom have been detained for over a decade.

Even though the war ended more than seven years ago, Sri Lanka has not released all of its political prisoners—an act common after civil wars to promote reconciliation. More than twenty political prisoners went on a brief hunger strike in August 2016. That same week, protestors in Colombo and Jaffna called for the release of all political prisoners. Nonetheless, the coalition government continues to drag its feet on the issue.

The Tamil Tigers spent nearly thirty years waging a civil war against the Sri Lankan military; their goal was to create an independent Tamil state in the country’s north and east. The root causes of the country’s civil war pertained to the marginalization of the Tamil people, who lacked a voice in the government and who were victim to discriminatory policies in a host of areas—including education, employment, land, and language.

Since taking power in 2015, current president Maithripala Sirisena has not been as authoritarian as his predecessor, Mahinda Rajapaksa, but he is still failing to address Tamil grievances that caused the war in the first place. Furthermore, a return to normalcy continues to elude the Tamil-majority northern and eastern provinces. People residing in these war-torn areas face extensive militarization, high levels of unemployment, and socioeconomic troubles, among other problems.

Today, there are believed to be approximately 200 Tamil political prisoners, some of whom have been detained for over a decade.

Justice Denied

According to a senior human rights lawyer in Colombo, who spoke to me on condition of anonymity, there are 180-193 Tamil political prisoners still being held under the draconian Prevention of Terrorism Act (PTA), which gives state security expansive powers to search, arrest, or detain people, though it has typically been used to target Tamils. Under the PTA, the government can detain suspects for extended periods of time without presenting charges or bringing them before a court. There is no provision for bail under this act.

In March, the government said it was in the process of repealing the PTA, though that has yet to happen. To make matters worse, the PTA has recently been used to arrest people on questionable national security grounds, such as an alleged reemergence of the Tamil Tigers. Last March, Sri Lankan police discovered an old weapons stockpile, believed to have belonged to the Tigers, in northern Sri Lanka; this incident was used as a pretext to arrest almost 30 people.

One challenge to solving the issue of political prisoners is the lack of clear information surrounding the issue. Precise statistics are hard to come by, though at least a few dozen political prisoners have been allowed to leave jail on a conditional basis since the new government came to power.

However, being released conditionally is far from being granted genuine freedom. For example, many of those released on a conditional basis are monitored closely by state security personnel. They are not allowed to travel abroad and are required to check in with law enforcement authorities on a regular basis. Other detainees have agreed to participate in the government’s rehabilitation program for ex-combatants before their release. The rehabilitation program is controversial, and there have been numerous reports that past participants in the program were subjected to torture and sexual violence. (The torture of political detainees has been a longstanding problem.) There have been other worries that the vocational training and psychosocial care provided to ex-combatants is this program is, to put it mildly, substandard. According to the human rights lawyer with whom I spoke, relatively few political prisoners have been released without conditions.

If the government remains unwilling to release the remaining detainees, it should at least provide them with a trial. Denial of a trial gives credence to the widespread belief that most prisoners are being held on dubious legal grounds. The majority of these individuals have spent years in jail, but have not been convicted of anything; many have not even been indicted. Additionally, Colombo has yet to release a full list of political prisoners.

If the government remains unwilling to release the remaining detainees, it should at least provide them with a trial.

Domestic Politics

It’s impossible to ignore the domestic political implications of releasing these detainees. What might happen if Colombo released all Tamil political prisoners?

Former president Rajapaksa (who, after his failed presidential campaign, was elected to parliament last August) would likely try to use such a move to bolster his support amongst the Sinhala-Buddhist community. (Ethnic Sinhala people comprise the country’s overwhelming ethnic majority and most of them are Buddhist.) Other members of the “joint opposition” would invariably follow his lead. Rajapaksa—who is also a member of Sirisena’s Sri Lanka Freedom Party, which has remained divided since the January 2015 election—would aver that Sri Lanka’s current government is weak on national security, alleging that it is allowing terrorists to go free and that the release of political prisoners would destabilize the country.

Rajapaksa is not the political force he once was, but he still has some political support, and these claims would likely still resonate with a certain segment of the electorate. Sinhala nationalism remains a powerful force, and no one knows how to use it for personal gain better than Rajapaksa.

Yet the claims that releasing political prisoners would destabilize the country are baseless. The Tamil Tigers were militarily defeated in 2009, and there is no credible evidence that they are regrouping within Sri Lanka (despite attempts by government officials to make it appear that way).

A Difficult Road to Deeper Reform

Releasing political prisoners would be only a small step towards more significant reform. The new government has laid out a broad transitional justice agenda and even co-sponsored a U.N. Human Rights Council resolution last October. The ambitious plan includes a truth commission and an accountability mechanism to address alleged wartime abuses.

In spite of legitimate concerns about the process, parliament’s recent passage of a law to create an Office of Missing Persons (OMP) is an ostensible step in the right direction, but the office is tasked with neither criminal nor civil prosecutorial powers. Moreover, the process of establishing a credible truth commission and a legitimate accountability mechanism is expected to be far more difficult and are highly controversial. It could also be politically costly for the coalition government: Sri Lanka’s military are almost exclusively Sinhalese and many Sinhalese citizens believe that the country’s military should be revered for defeating a “terrorist” insurgency. In short, they would not want to see members of the military held accountable for wartime abuses. It’s true that the Tamil Tigers also committed their share of human rights violations—including suicide bombings and child conscription. But almost all of the Tigers’ senior leadership died (and are believed to have been killed extrajudicially) during the end of the war, making accountability for these abuses more complicated.

It is unrealistic to expect too much too soon. A credible, comprehensive transitional justice process takes time to design and develop. However, in order to properly implement such a process—following a war that lasted more than two decades and some say killed up to 100,000 (that figure may be much higher)—it is important to establish trust between the Sinhalese-dominated government and a Tamil community that, broadly speaking, remains skeptical of the government’s reform agenda.

Releasing political prisoners would be a strong early step toward this goal. Though politically controversial, providing a complete list of Tamil political prisoners (including the location where each individual is being held) and immediately releasing most of them is precisely the type of confidence-building measure that the government could use to establish its transitional justice bona fides. The longer Colombo prevaricates on this issue, the easier it is to believe that war-related reform in Sri Lanka may be on the rocks.