Transitional Justice: Genuine move or red herring?

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J S Tissainayagam.                                                               

Sri Lanka’s Foreign Minister Mangala Samaraweera met with civil society organisations (CSOs) on October 29 to discuss public consultations for setting up a transitional justice project to deal with the mass atrocities committed during the country’s civil war. Despite this seemingly democratic practice, questions remain as to whether in its implementation this project is going to shortchange the worst affected – the war’s victims.

Sri Lanka’s civil war between the majority Sinhalese and numerically smaller Tamils killed over 100,000 people. It came to an end in May 2009 with the military defeat of Liberation Tigers of Tamil Eelam (LTTE) rebels in the hands of Sri Lanka’s military. Both the military and rebels are accused of committing war crimes.

At the UN Human Rights Council (UNHRC) sessions this September, the Office of the High Commissioner for Human Rights’ investigation on Sri Lanka (OISL) in a report confirmed that Sri Lanka’s military and LTTE had violated international human rights and humanitarian laws.

In the interest of accountability and reconciliation in Sri Lanka, the OISL recommended a “comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures,” including “hybrid special courts, integrating international judges, prosecutors, lawyers and investigators … accompanied by broader transitional justice measures, including truth-seeking and reparations, to ensure the right of victims to redress…”

The six years since the civil war ended has seen growing distrust between authorities of successive Sri Lankan governments who have vehemently resisted efforts to put on trial their political and military leaders accused of war crimes. Tamils have not only demanded the accused face judicial prosecution, but that the court be a fully international judicial mechanism to prevent Sri Lankan judges unfairly exculpate Sri Lankan leaders.

This September, the UNHRC also passed a resolution to facilitate implementing the OISL recommendations. The resolution was criticised because it did not go as far as the OISL report in demanding accountability for violations from Colombo.

Following the UNHRC session, Sri Lanka, while pledging not to haul its military before any tribunal for war crimes, took steps to operationalise some aspects of the resolution. One such step was the October 29 CSO meeting on consulting victims about the design of transitional justice, which Samaraweera addressed.

A government agreeing to consult the victims on transitional justice in the planning stages of the project appears democratic and inclusive. But how committed is the Government? If the victims reject structures of the transitional justice project already outlined by the Government will they be modified? Or is it a red herring to distract the public and the international community because Colombo has no intention of modifying the basic structure it laid out at the UNHRC sessions?

This article will examine this question from three sides: a) the role of the foreign ministry/minister in a project that should be spearheaded by the ministry of justice, b) the de-emphasis of the judicial mechanisms in the Government’s proposals for accountability in favour of truth-seeking, reparations and guarantees of non-recurrence and, c) a militarised environment in the North and East of Sri Lanka, which is not conducive for implementing transitional justice measures.

Why is Samaraweera, the foreign minister, whose main job is to safeguard Sri Lanka’s interests internationally, championing the task of consulting victims on transitional justice, which is an internal affair? His role at the UNHRC and explaining the country’s positions on transitional justice to foreign governments are indisputable. But consultation with victims on the subject is surely the task of the ministry of justice? More interesting, Justice Minister Wijeydasa Rajapakshe and officials of the Attorney General’s Department have remained largely silent on the subject.

This is all the more alarming because of a lack of collective cabinet responsibility. Sri Lanka has a national unity government where the two principal parties that were implacable enemies in the past have come together in an uneasy coalition. This has manifested in open clashes between members of the cabinet on important national security and foreign policy issues.

The CSOs have no guarantee that if the ministry of justice and other arms of the Government takeover running the transitional justice project they will continue to respect the inputs of the victims. As pressures build up from Sinhala nationalist forces to dilute aspects of the transitional justice project, the ministry of justice could very well repudiate the work of the foreign ministry because the latter is really not authorised to do it.

Second, Samaraweera’s speech at the CSO meeting in outlining the transitional justice project was rather skimpy on details on bringing perpetrators to justice. He said, “This is one of the more controversial areas, which we have to go into fully before the final architecture is agreed upon.” Samaraweera mentioned a judicial mechanism of a Special Counsel to be set up by statute, the victims’ right to fair remedy and the importance of addressing impunity but he did not give any details. He was however much more forthcoming on other aspects of transitional justice – the right to truth, reparations and non-recurrence.

The civil war’s victims and CSOs have been critical of the Government for under emphasising the inclusion of international judges and prosecutors in its transitional justice project. The Tamil Civil Society Forum pinpoints this in a note circulated at the 29 October meeting.

While prosecutions are clearly important for the CSOs, can they insist that judicial and prosecutorial elements be mainstreamed in the transitional justice project? Greater emphasis on these elements will mean modifying the structure and institutions outlined by Samaraweera. But Samaraweera made a pointed reference in his address that there is very little likelihood for changes in the basic structure. He said that “the government has set out initial ideas (on transitional justice) which are reflected in the HRC resolution” and that “could be the starting point.”

Finally, it appears that transitional justice will probably unfold in a repressive, militarised Sri Lanka. “The new government is involved in carrying out discussions on transitional justice mechanisms. The militarisation needs to be eliminated in order for the affected people of the North and East, including the families of the disappeared to participate freely in these national consultations,” reads a statement circulated to the by members of Eastern Civil Society organisations to the visiting UN Working Group on Enforced and Involuntary Disappearances (UNWGEID).

Although Samaraweera acknowledged that “Government has responsibility (ensuring security) to take necessary measures to ensure freedom of movement, peaceful assembly and expression”, this has failed to happen. Just two weeks after his promise, UNWGEID referred to “threats and intimidation of families of the disappeared that had met the UNWGEID,” during a press conference on November 18.

Therefore, although the Government consulting victims on some aspects of transitional justice mechanisms appears democratic and inclusive, the way Colombo is setting about it gives little confidence that it is prepared to incorporate victims’ needs and wishes if they go contrary to its own target and objectives. Nor is the Government going to demilitarise areas to make them more benign to implement transitional justice. This raises the question whether consultations and other promises of inclusivity are a red herring to lull the public and international community into a false sense of hope while the Government goes ahead undeterred to implement a version of transitional justice unhelpful to victims.

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