The Sri Lankan government’s ‘magnanimity deficit’ (see my article of October 13th for Global Brief) in the aftermath of the war with the Liberation Tigers of Tamil Eelam (LTTE) is creating a high risk that a renewed violent struggle could emerge. But Sri Lankan President Mahinda Rajapaksa may yet have time to change course, thereby making good on some of his own publicly stated (and, we must assume, sincerely felt) hopes for his country. In the wake of the Nobel Peace Prize for US President Barack Obama, this may be an unusually propitious moment for Rajapaksa to recalibrate. There is a post-Prize window of opportunity for Obama to engage President Rajapaksa in a way that both helps to bring a sustainable peace to Sri Lanka, and even has the knock-on effect of creating momentum for pursuit of a settlement in the Middle East, where peace-making capital remains in short supply. Key will be Obama’s ability to appeal to Rajapaksa’s own sense of being a man of history who can be recognized as such on the world stage – a broader stage than that of the admiring Burmese generals who received Rajapaksa as model conqueror in his first post-war trip abroad.

The violence and depth of suffering in over 30 years of conflict in Sri Lanka were generated by a combination of factors. Nationalistic aspirations on the part of the minority Tamil population (concentrated in the northern tip of the island) were warped by appropriation of the struggle of the Tamil people by a ruthless LTTE. Especially in recent years, brutal state militarism has combined with majority ethnic (Sinhalese) and religious (Buddhist) chauvinism to emphasize the singularity of the Sri Lankan ‘nation’ in ways that have exacerbated the exclusion felt by many Tamils – highlighting the persistent failure of the Sri Lankan state to accord meaningful regional autonomy in the areas in which the Tamil people are concentrated.

The war ended with extensive civilian deaths and injuries produced by the resoluteness and ferocity of the government military strategy, combined with LTTE use of civilian populations as shields, and children as military conscripts. The government abjured appeals from around the world to adopt a more humane and less humiliating approach to the war. General Sarath Fonseka, the head of the Sri Lankan army during the final onslaught, reportedly stated publicly on July 10th that he had disregarded higher orders to respect surrender by LTTE combatants: “Our soldiers have seen in life the kind of destruction carried out by those people before they decided to come carrying a white flag. Therefore, they carried out their duties. We destroyed anyone connected with the LTTE. That is how we won the war.”

With the end of the war in mid-May, almost 300,000 civilians found themselves in wretched conditions in detention camps that had been set up during the war to handle internally displaced persons (IDPs). One purpose of the camps was to allow the government to weed out LTTE members assumed still to be hiding in the civilians’ midst. Almost half a year has passed, and, according to UK Foreign Secretary David Miliband, in a statement to the House of Commons on October 14th, some 253,000 still remain in the camps. The mid-October to December monsoon season is imminent. Unexpected rains last August already showed how ill-equipped the camps are to handle many weeks of non-stop rains. Considering the conditions in the camps, six months of enclosure has reached the point of constituting inhumane treatment, as prohibited by Article 3 of the Fourth Geneva Convention (on protection of civilians in civil war). Meanwhile, as Miliband also emphasized last week, Britain is “also concerned that there is no independent visibility of the process by which over 11,000 IDPs have been identified as suspected LTTE cadres and moved to separate camps and that the UN and International Committee of the Red Cross (ICRC) have had no access to them since July.”

Dire as the situation of the detainees may be, the future of constitutional arrangements in Sri Lanka is the single most important factor for a sustainable peace. The world diplomatic community certainly sees it this way. After the battlefield defeat of the LTTE, there was a remarkable world consensus on the need for Sri Lankan-state and Sinhalese-majoritarian magnanimity by way of some form of constitutional federalism or devolution of power to the Tamil people – again, at least where territorially concentrated in the north. On May 18th, UK Prime Minister Brown called President Rajapaksa to stress the need to be “magnanimous in victory.” Foreign Secretary Miliband recalled this plea on October 14th, adding that “one of the prerequisites for a lasting peace in Sri Lanka is a political settlement that fully takes into account the legitimate grievances and aspirations of all communities.”

Rajapaksa has himself linked the idea of magnanimity and associated virtues to what seems a ‘mini-Marshall Plan’ for the economic and social development of Tamil areas, as well as to his overall vision for Sri Lanka. For example, immediately following the war, Sri Lankan diplomatic missions around the world posted and circulated a statement by President Rajapaksa that included the following sentiment: “[T]he celebration of this victory, as deep[ly] as it is felt, should be expressed with magnanimity and friendship towards all.” And in his major address to Parliament on May 19th, he opened his speech by speaking in Tamil (not the majority language of Sinhala, his own mother tongue) to convey such sentiments as: “Protecting the Tamil speaking people of this country is my responsibility. That is my duty. All the people of this country should live in safety without fear and suspicion. All should live with equal rights.”

President Rajapaksa’s variant of magnanimity is embedded in his frequently invoked ‘liberal’ vision of a Sri Lanka without minorities (in the sense of collectivities with minority identities). In Rajapaksa’s Sri Lanka, only individuals exist and have rights, and us/them dynamics revolve around the division between those who share his one-nation-of-individuals ideas and those who do not: “We removed the word minorities from our vocabulary three years ago. No longer are the Tamils, Muslims, Burghers, Malays and any others minorities. There are only two peoples in this country. One is the people that love this country. The other comprises the small groups that have no love for the land of their birth. Those who do not love the country are now a lesser group.”

One must understand how the dual invocation of national unity and individualism in passages like this generates two risks. One is the risk that oneness becomes a stand-in for a country and system in which the sublimation of group aspirations – the very crux of the conflict – allows majoritarian culture and religious precepts to dominate the oneness. The other is the way in which a friend/enemy discourse fuses with a history of security-based rationales for harsh and often brutal treatment of those “lesser” people who are deemed to “not love the country.”

Close observers despair, fearing that Rajapaksa cannot be persuaded to become a visionary peacemaker – not only war-winner. The Financial Times editorialized on August 15th that Sri Lanka’s “precarious identity as a mix of ethnic and linguistic, cultural and religious influences is in danger of being swept away by a triumphalist wave of Sinhalese chauvinism….” Concludes the FT: “[U]nless the Sinhala majority shows magnanimity and gives the Tamils control over their lives, their cause will surely reignite from the embers of this war.”

Rajapaksa does not seem to be on the same page as either most Tamil leaders or many in the international community. In a July interview with The Hindu, a respected national newspaper in India, Rajapaksa stated bluntly: “No way for federalism in this country.” In another interview, he also stated flatly that the north of Sri Lanka could not have a model of governance different from that prevailing in the rest of the country: “The whole country must have a system. You can’t have one system for the North and one for the East.” At the same time, President Rajapaksa seems to be leaving on the table a renovation of the Provincial Council system introduced into the Sri Lankan Constitution some 20 years ago by the 13th Amendment – a system much criticized for being under a combination of de jure and de facto control of the central government. Rajapaksa hints that, should he win an expected Presidential election early in 2010, he would seek to combine provincial governance with national governance in a new way (that some are calling his ‘Second Chamber’ scheme).

Whatever Rajapaksa has in mind, he appears to hold that ethnicity may not be the basis for provincial government. Yet, it is important to see that his vision – or, more precisely, his professed vision – is not that of the Sinhalese chauvinism that is part of his political support base. Rather, his vision may actually contain the kernels of a cosmopolitanism that could ultimately make Sri Lanka a more harmonious society, and even a showcase for ever-interacting identities in a globalizing world. If his rhetoric is to be taken at face value, he appears to see a pluralist mixité as a combined inter-communal and civic basis for Sri Lankan nationhood: “For reconciliation to happen, there must be a mix [of ethnicities]. Here the Sinhalese, the Tamils, and Muslims intermarry. In my own family, there have been mixed marriages: Sinhalese with Tamils, Sinhalese with Muslims. This is Sri Lankan society.”

Although many Tamils understandably suspect that the Rajapaksa vision is insincere, there may be reason for the world community to seek to encourage a meeting of the magnanimity expected of President Rajapaksa with a similar magnanimity on the part of Tamil leadership. Were Rajapaksa to be ‘heard’ as being open to a true civic nationalism, a similar civic nationalism could be presented in future constitutional negotiations as also the foundation for any governance in the Tamil-majority north. On that basis, Rajapaksa might reconsider his seemingly resolute opposition to federalism. The fact that Rajapaksa learned Tamil, the fact that Tamils are members of his own extended family, and the fact that his government has required all newly hired employees of the Sri Lanka public service to know not only Sinhala, but also Tamil – all these are perhaps signs that there may be a foundation for a noble compromise to emerge from future constitutional design processes.

Magnanimity at the macro level of a future constitutional peace needs to be preceded by a combination of magnanimity and justice at the level of the immediate challenges to President Rajapaksa’s credibility. If these challenges remain unresolved, there will be diminished prospects for the kind of openness of spirit and willingness to compromise upon which future political arrangements will depend.

President Rajapaksa needs to change course if he cares for history’s verdict.  Camps with claimed LTTE cadres need to be opened fully to the International Committee of the Red Cross. Intimidation extending to disappearances and killings of journalists, witnesses (including doctors who witnessed the warfare) and critics must cease. Those who committed war crimes during the war – on both sides – must be held accountable.

As for the 250,000 remaining civilian detainees, the situation is more complex. Despite almost half a year having passed, the conditions in the IDP camps remain wholly inadequate, especially as the monsoons begin to sweep in. From the perspective of the detainees’ liberty, the first instinct is to say that all of them need to be released, even if this means ending any remaining screening for members of the LTTE. However, the Government of Sri Lanka has also not yet prepared the way for the return of detainees to their home areas (in terms of infrastructure, demining and adequate resettlement funds for each family or individual). Yet, the government appears to be starting to transfer people from Manik Farms, according to very recent on-the-ground reports. This seems intended to make good on the recent statement of President Rajapaksa that 58,000 would soon be moved from the main Manik Farms camps, and to respond to economic pressures from both the EU and India. However, it appears so far that the bulk are heading for other camps or even transit shelters – with, we can expect, even less access to UN and humanitarian agencies than has been the case at Manik Farms.

Faced with this Hobson’s choice, produced by the government’s delays in addressing the situation properly, and intersecting with the demands of the international community, President Rajapaksa cannot simply dump people and present this as an acceptable release.  Normal legal rules and moral expectations for the treatment of IDPs cannot be circumvented in a hasty dispersal process. Rajapaksa must accept that he has to ‘wear’ the situation that he has failed so far to address properly. The only moral choice available to him would appear to be a fourfold plan of action: end any further screening for LTTE members, so as to allow any people who want to leave, and can show they have friends or family in safe areas with whom they can stay, to depart from the camps; mobilize the compassion of all Sri Lankans to volunteer to temporarily host other detainees with no friends and family to receive them; mobilize all national and international resources to make Manik Farms as monsoon-worthy as possible, and fully accessible to UN and other humanitarian agencies – for the many who will necessarily remain unreleased; and act with both urgency and efficiency to make detainees’ home areas ready to receive them without further unreasonable delay.

Craig Scott is Professor of Law, Osgoode Hall Law School, and Director of the Nathanson Centre on Transnational Human Rights, Crime and Security, York University (Toronto). He is also a member of the Council of Advisors to the Campaign for Peace and Justice in Sri Lanka.