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Ideas for a Road Map for Truth and Justice in Sri Lanka

Photo courtesy Aquila Style

The new year has brought significant changes in Sri Lanka. President Maithripala Sirisena and his Government face many challenges and opportunities. Reform has been promised and expectations are high. In the wake of the elections, Pope Francis’ visit to Sri Lanka to canonize the country’s first saint was a highlight. Those involved in setting out the reform agenda should use his arrival speech as a guide, with specific attention to the following words: The process of healing also needs to include the pursuit of truth, not for the sake of opening old wounds, but rather as a necessary means of promoting justice, healing and unity.” Such sentiments are missing in the Sirisena Government’s official documents and statements. This article briefly sets out why addressing truth and justice are critical if we as Sri Lankans are to have a chance at genuine and long-term reconciliation.

Attempts at Addressing the Culture of Impunity

The lack of a political will to pursue independent investigations and prosecute perpetrators is a key factor contributing to the culture of impunity in Sri Lanka. Another is the legacy of a flawed legal framework and the lack of capacity with the existing actors to deal with mass scale violations. For example, the Commission of Inquiry Act, which provides for the appointment of Presidential Commissions, provides broad powers to the Executive to appoint investigations and decide on its outcomes. The absence of a comprehensive victim and witness protection mechanism has also impeded investigations, with reports highlighting the intimidation, threats and attacks against people who come forward to give evidence. These are some of the areas the new government must address when introducing reform in the coming weeks. The silence, inaction and empty promises regarding these pertinent issues shaped the legacy of the Rajapaksa Government and alienated it from a significant population in Sri Lanka. It is time to learn from such mistakes and heed calls for truth, justice and accountability. It is time to address the culture of impunity.

Calls for truth and justice, be they related to the war, the southern insurrection or in the post-war context, have been numerous and varied. Families of the disappeared have for years gone before numerous police stations, military camps, committees and commissions of inquiries (COIs) in search of their missing loved ones. Many have protested and held silent vigils across Sri Lanka. Despite these efforts, most have yet to obtain official acknowledgement from the State that their loved ones are missing. The present Presidential Commission to Investigate into Complaints Regarding Missing Persons (Commission), appointed by then-President Rajapaksa in 2013, has received over 20,000 complaints. Civil society and media have critiqued this Commission for the delays in processing complaints, lack of victim and witness protection and for shifting its primary focus of missing persons to a others including international humanitarian law (IHL) violations. Despite the commission’s flaws, the thousands who have complained is a testament to the gravity of disappearances and their ongoing effect on the communities that continue to search for missing persons.

Similarly, many other incidents of violence and violations where the State has promised investigations are yet to lead to perpetrators being held to account. If one looks at the Commission of Inquiry that was appointed to investigate and inquire into 16 cases of past violations (also known as the Udalagama Commission), no public information is available on the status of the cases despite the commissioners handing over the findings of the investigations to the Executive in 2009. The Lessons Learnt and Reconciliation Commission (LLRC), another entity appointed by then-President Rajapaksa, referenced two cases that were before the Udalagama Commission, the killing of the five youth in Trincomalee and the ACF killings both dating to 2006, as requiring further investigation. Nine years into the killings, and after many promises and pledges from the then-Government, the survivors and families are yet to obtain any information whether any credible investigations have taken place.

In terms of previous initiatives for truth and justice, it is worth noting that domestic investigations have in most instances been in response to public outrage and national and international pressures. Both the LLRC and the Udalagama Commission were established by then-President Rajapaksa as a direct result of international pressure to address violations and the culture of impunity. The promises to investigate killing of protestors in the Free Trade Zone and Chilaw resulted from public condemnation of the abuse of power, but have yet to result in credible processes where perpetrators have been held to account. Killings and abductions of media actors have also had similar results. The few cases in which perpetrators have been convicted, such as the case of the killing of British national Khuram Shaikh, are largely due to intense pressure from national and international actors. But such cases of successful convictions are rare. In most instances survivors and families languish for years searching for justice.

Reform Agenda to Meet the Needs of the People

Just over a week into the Sirisena Government, the establishment of the National Executive Council and the appointment of a respected former civil servant as the Governor of the Northern Province are welcome. Reform, though, must be at a deeper level. The Sirisena Government must demonstrate a shift in policy in terms of recognizing the past and addressing ongoing violations. The Rajapaksa Government attempted to demonstrate that economic development was a panacea, with little attention given to other grievances of communities across Sri Lanka. The Sirisena Government should note the flaws of such a line and acknowledge the legitimate grievances of communities in the North, East and South of Sri Lanka. The large turnout in the North on election day, despite intimidation and attempts to confuse voters, is a testament to the rejection of the previous Government’s policies and the desire for change. “We voted to get back our dignity back”, a quote from a person in the North reported in the media goes to the heart of the problem. The development, urbanization, and beautification initiatives of the past few years do not make up for concurrent violations of people’s rights, including evicting them from their own homes or preventing return to their own lands. Respecting people’s rights and dignity is of paramount importance to changing the country’s political culture. The present Government should take note of these basic issues when pushing forward with their 100-day plan and longer-term initiatives.

One can read the Rajapaksa Government’s human rights and reconciliation policies in the National Human Rights Action Plan and the National Action Plan for the LLRC, both with identified action points, actors and time frames for implementation. Despite this, many questions remain regarding progress and impact. Such initiatives, while good on paper, made little impact with the people. In moving forward, the new Government should articulate its positions in terms of rights protection, truth, justice, accountability and reconciliation. Although the 100-day plan is ambitious and identifies areas for reform, a missing piece is truth and justice. It is timely for the Government to examine, acknowledge and understand the past to avoid a recurrence of violence and to help introduce initiatives and processes to heal the wounds and divisions within society. In this regard, attention should be on a road map with benchmarks and timeframes to address truth and justice, with the target of long-term and sustainable reconciliation. The process should be inclusive and transparent, involving all relevant stakeholders. Also important is to ensure that initiatives and processes include gender-sensitive perspectives, including problems faced by single-headed households and women who faced and continue to face security threats.

A Road Map & Next Steps

It is important to be able to articulate the Government’s positions and priorities. A road map should answer this question, and also build confidence in the public of a larger willingness to acknowledge the past and of a government that will ensure credible domestic processes are able to address the grievances of the people.

At the outset there must be a reframing and rethinking of positions in terms of truth, justice, accountability and reconciliation. The complete denial of serious human rights violations and aggression towards anyone calling for accountability for past violations must change. Already there is a shift in this policy to one where the Government has indicated an interest to engage with actors involved in justice and accountability, including the investigation by the United Nations Office of the High Commissioner for Human Rights. This is welcome, but more is needed in terms of substantive changes. A road map can help in this regard. The Joinet/Oretlicher Principles to combat impunity and the four pillars it advances are useful in this regard: the right to truth, right to justice, the right to reparations and the guarantee of non-recurrence. The four main areas discussed below are not exhaustive, but highlights areas important in the Sri Lankan context and sets the stage for further initiatives.

Importance of Truth-Telling

The search for the truth continues for many conflict-affected Sri Lankans, but present processes have failed to provide answers. This area urgently requires reform. The new Government should review the Commission of Inquiry Act to see whether amendments can ensure future COIs work independently and make their findings public. In terms of legislative reform, they should also revisit the possibility of enacting victim and witness protection legislation that provides for an effective protection mechanism.

The reform agenda should also examine new modalities to address truth and justice, including new entities such as something on the lines of a truth commission. Truth-telling processes are important as they provide a space for victims, survivors and affected communities to be heard and to have public acknowledgement of what happened in the past. Truth commissions can also make recommendations for next steps, including reparations, trials and initiating state reforms that include the introduction of guarantees of non-recurrence of human rights violations and respect for the rights of all citizens.

Regarding a possible process for truth-telling, the South African-style Truth and Reconciliation Commission (SATRC) has been mooted previously. Although the SATRC is well known, when designing a process suitable for Sri Lanka, policymakers should also look at other initiatives, including those in Argentina, Chile and Sierra Leone and the most recently concluded Brazilian National Truth Commission. The Argentinian National Commission on the Disappearance of Persons (CONADEP) provided a comprehensive report titled ‘Nunca Mas’ (Never Again), which was followed by the then Argentinian Government lifting amnesties provided to the military junta and initiating domestic trials that lead to the convictions of perpetrators. The Brazilian Commission also raises amnesties and recommends they be lifted to try perpetrators of serious human rights violations. There is no one formula as to what is best for Sri Lanka. The Government must examine different modalities and design an initiative that is best suited for the Sri Lankan context. This must include benchmarks for independence, impartiality, transparency and protection for victims and witnesses.

Those discussing modalities for truth-telling processes should examine reports of past commissions and identify action points for the short, medium and long term. Although many reports are not in the public domain, the few that are available such as the LLRC provide constructive action points and can be useful guides in the reform debates. It is also important to make the reports of past COIs public.

Steps to End the Culture of Impunity

Reform should not only be limited to finding the truth, but must also address justice and accountability. Reform is critical in light of the slow progress in indicting and prosecuting perpetrators of serious human rights violations. The Attorney General’s Department’s capacity to handle more cases of past violations is questionable. A special office to examine specific cases, with a fixed term limit in its operations, would do much to alleviate this burden. Such an office should have the mandate to investigate, indict and prosecute cases of serious human rights violations. The establishment of a special office to investigate serious human rights violations and commence proceedings can also send a message that addressing accountability is priority. This, though, is a mechanism that will be dependent on staffing and resources. Additionally, prosecutions will not happen in a vacuum; efforts at introducing reform must factor in constitutional reform to provide for an independent judiciary, and also technical support to build the capacity of judges and court staff.

Legislative reform must also strengthen a citizen’s ability to initiate proceedings in terms of serious human rights violations in situations in which the State has failed to take action. At present the fundamental rights chapter in the Constitution provides for a petition to be filed in the Supreme Court when there is a violation or an imminent infringement of the fundamental rights provided. Legislators should review other countries to find examples of processes that provide their citizens with better access to justice. For example, in Argentina, private prosecutions can hold perpetrators of serious human rights violations to account without relying solely on State machinery. The ability of a citizen to take action has contributed to greater accountability and addressing the culture of impunity in Argentina. The Government should consider such a process in light of the present set up, which has failed victims. However, only legislative reform and appropriate technical support will make this a feasible option.

To end impunity, it is also important for the Government to take a position in terms of amnesties for serious human rights violations. Although the SATRC offered amnesties when specific conditions were met, recent practices in other contexts—Argentina, Chile, and Uruguay—have seen the overturning of amnesty laws in the face of grave violations of war crimes, crimes against humanity and genocide. A clear message should be sent that perpetrators of serious human rights violations, regardless of rank and position, will be held to account. Preventing the recurrence of violence is closely connected to ending a culture of impunity. In this regard institutional and structural reform must also include the judiciary, the security sector and those institutions which were complicit in the violations. Finally, both the State and civil society should invest in systematic archiving of documents and other resources, which can facilitate in raising awareness of the past and be an informative tool for future generations as they also strive to remember the past and prevent the recurrence of rights violations.

Memorialisation

Memorials can play an important part in remembering and recognizing the past and also in providing a space for victims, survivors and affected communities to mourn the dead. Memorials built during the post-war context in Sri Lanka have only facilitated one narrative, that of the triumphalist victor, with no space for the multiple narratives of the victims and survivors. It is essential that space be provided across Sri Lanka for memorialization at the different levels that reflect the grievances of the people. It is important that the Government initiates a consultation in this regard with relevant stakeholders, involving survivors, families, affected communities, civil society, artists and academia, to identify areas to consider in creating, identifying and maintaining memory spaces.

Memorial spaces in other countries that faced violence have been provided by the State, private institutions and the public. There is no one formula but it is important that it is an inclusive process. The Constitutional Court in South Africa based in the Old Fort Prison premises is now transformed to capture past events and be a memorial. In Argentina, the former secret detention center named ESMA is now a memory space with a state-sponsored archival center and the Haroldo Conti Cultural Center named after a journalist who was abducted and killed by the military junta. Those considering Sri Lanka’s needs should look at these and other examples across the globe.

The new Government must also provide space to mourn the dead. Previous years saw crackdowns on those who attempted to mourn deaths from the final stage of the war. These crackdowns halted religious ceremonies and disrupted community meetings. Such arbitrary restrictions must immediately stop and the government must create and support spaces for communities to mourn their dead with dignity.

Reparations

Providing reparations is an important component for reconciliation and is a recognition and protection of individual rights. The State has to provide redress for past abuse; this can include compensation, rehabilitation and restitution. Reparations can be both financial and non-financial. For example, for land and property loss/damages, initiatives may provide for people to return to their land and compensate them for damages. Authorities can take steps to provide death certificates for those disappeared after conducting independent investigations. The Government should appoint officials to examine problems related to land occupation, property damage, livelihoods, disappearances and detentions. In terms of land occupation, the Ministry of Land and Ministry of Defence should immediately assess the extent of land occupied by the military and other state entities and return lands to their legal owners. Land required for public purposes should be acquired in terms of the legal provisions provided in the Land Acquisition Act.

The above are some ideas to start prioritizing truth and justice in the reform debates in Sri Lanka. The work of the next few weeks and months will define the legacy of President Sirisena and his Government. It is therefore fundamental that the Government considers and take action to address the legitimate grievances of all citizens and end the silence in Sri Lanka.