Image courtesy Justice in Conflict
The International Center for Transitional Justice (ICTJ) is presently facilitating a stimulating online debate titled ‘Is the International Community Abandoning the Fight Against Impunity?’ The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, argues that the international community is not abandoning the fight against impunity, highlighting successes in national and international courts including the trial of former Chadian dictator Hissene Habré in Senegal and urges for a long term outlook. Professor Michael Ignatieff from Harvard University makes a rather sobering point that the international community has its own self-interests when pursuing justice and accountability and that politics ultimately trumps international justice. A victim centered view is injected by Betty Murungi, former Vice Chair of the Kenyan Truth, Justice and Reconciliation Commission, who suggests that victims should be involved in designing transitional justice programs that speak to their specific concerns. The debate captures the nuances and challenges faced in the search for justice and accountability globally and highlights the growing role played by domestic courts and commissions of inquiry, the last point relevant to Sri Lanka when exploring modalities for truth and justice for past violations. President Maithripala Sirisena’s government has in the past few weeks promised a ‘credible domestic process’ to investigate and inquire into the past and prosecute perpetrators. Two months into the new government, there is no clarity what this domestic process is to entail.
This article briefly makes the case why a domestic process can work in post war Sri Lanka if significant changes are undertaken. The focus on domestic processes does not discount the continuing need for international attention on Sri Lanka but makes the case why there is an opportunity now to explore domestic processes and ensure much needed reform. This includes undertaking wide consultations with different stakeholders when designing a process and identifying areas that require attention, introducing legal and policy reforms and implementing an effective victim and witness protection program. It is also fundamental to rethink structural processes required for such an exercise and introduce a process that is independent, has the required expertise and capacity to deal with serious human rights violations and adheres to international standards.
Present Dynamics in Sri Lanka
At the outset it must be stated that domestic processes can only be effective and address the culture of impunity if there is a genuine political will within the leadership. We have witnessed numerous obstacles that prevented a credible domestic process from being fully implemented in the past including the lack of capacity within key institutions to investigate, indict and prosecute, lack of trust among different groups, the empty promises by successive governments and the inability of the different political stakeholders to agree on steps to genuinely address the grievances of affected communities across Sri Lanka. Efforts now to introduce modalities to address truth and justice in Sri Lanka must address and overcome these issues. A study by the Centre for Policy Alternatives (CPA) provides a long list of commissions established by successive governments, with findings and reports of such commissions not publicly available and lack of information on the status of implementation. The Lessons Learnt and Reconciliation Commission (LLRC) is an exception in terms of the final report being in the public domain but questions remain regarding the status of implementation of its recommendations. Every effort must be taken to prevent such a repeat.
The frustrations with government initiatives are captured by recent protests across Sri Lanka by families searching for missing loved ones and affected communities. Many of the families have continuously engaged with numerous initiatives in the hope of answers but in most cases not even seen the final commission report, let alone received any information regarding the status of their missing family member. Recent protests also made specific reference to the developments at the 28th Session of the United Nations Human Rights Council (UNHRC) and the decision of the Office of the High Commissioner for Human Rights (OHCHR) to defer the tabling of the report by the OHCHR Investigation on Sri Lanka (OISL). The decision to defer the report to the 30th Session of the UNHRC in September 2015 was received with both anger and disappointment by families and affected communities in Sri Lanka, with some making the claim that ‘justice delayed is justice denied’. These grievances are very real and must be addressed.
Is a Domestic Process Viable?
A visiting South African delegation led by Deputy Minister of International Relations and Cooperation of South Africa Nomaindia Mfeketo recently shared their experiences in tackling transitional justice and the establishment of the South African Truth and Reconciliation Commission (SATRC). The team spoke of the process that subsequently lead to the SATRC, the involvement of victims and families in the process, the decision to include amnesties for particular cases in the event of full disclosure and the provision of reparations. They also made the point that any process at truth and justice must be from within Sri Lanka with the involvement of key stakeholders including victims and affected communities.
Engaging with and involving all stakeholders in the planning for a domestic process is critical and there must be wide national consultations to understand the grievances of the different communities. The preparations should not be speeded through for political expediency but conducted in a manner that is inclusive and participatory. It is also vital that Sri Lankans drive the process, with the support, when required, from the international community. Professor Ignatieff articulates this in the ICTJ debate:
We also need to be realistic about what international justice can and cannot be expected to accomplish. Let us admit, for example, that where justice and truth processes have been most successful— Argentina, Chile, South Africa—it has been their national character—citizens of the same country, perpetrators, and victims, facing each other under the gaze of a justice that has national legitimacy—that has produced the most enduring peace and reconciliation afterwards. If reconciliation is ever to make progress in Sri Lanka—and the new government may be edging cautiously in that direction—outsiders can help as facilitators, but the real work will be done by Sri Lankans on both sides who realize, essentially, that their island will never be governable and will never make economic progress until reconciliation—and some national justice for crimes by security forces and insurgents alike—take place.
The question to ask is whether we Sri Lankans are ready and able to address issues of truth and justice. Can we overcome the petty bickering and emotional theatrics by sections of Sri Lankan society and diaspora to realize the grievances of affected communities across Sri Lanka? Can we engage in a genuine dialogue of the past, without being bogged down by opportunists both in Sri Lanka and outside? Can the voices of victims, families and affected communities be given due attention when designing and planning a process for truth and justice? Professor Ignatieff makes the case why political interests can undermine international justice. The same can be said in the search for truth and justice within a domestic setting. We, as Sri Lankans, must use this moment to hold our leaders to account and ensure this opportunity is not lost in realizing lasting peace and reconciliation.
Benchmarks for a Domestic Process
Several steps must be taken during the design stage and in the actual implementation of domestic processes. Experiences from past initiatives provide a glimpse to lessons that should be learnt. The importance of wide consultations has been made. This is essential to ensure ownership of the process and to be inclusive and transparent when moving forward. Wide consultations also provide credibility to a process that is meant to reconcile and to address grievances of communities. It must also be noted that a truth telling process alone is insufficient and there must be attention on accountability processes via special tribunals or trials and also other forms of transitional justice such as reparations and memorialization. It is also timely to revisit work of previous investigations including examining reports of past commissions and committees.
Benchmarks should be identified to strengthen domestic processes. The following list is not exhaustive but provides a starting point in the discussions that must take place in the coming days and weeks:
- Clarity in terms of mandate and objective of domestic processes.
- Identify the time period under review.
- Legal and policy reform including introducing new legislation to introduce independent mechanisms for truth telling, justice and accountability and to ensure the domestic framework in conformity to international standards.
- Identifying individuals for a truth telling process who are respected and have expertise in areas of law, governance, human rights, history, psychosocial issues and other relevant areas. Similarly, identifying individuals with the necessary legal and other skills for an accountability process is essential.
- Steps should be taken to address issues based on ethnic, religious and gender sensitivities.
- Implement an effective victim and witness protection mechanism.
- Disseminate information in all languages regarding the different initiatives and how the public can engage with such processes.
- Take steps to ensure independence of such processes including setting up an independent fund and employing independent counsel and investigators. In this regard the debates regarding the establishment of an Office of an Independent Prosecutor should be revisited and follow up action taken.
- Recruit necessary support staff including competent and experienced translators.
- No amnesties should be offered for serious human rights violations including war crimes and crimes against humanity.
In the weeks and months ahead, there is likely to be numerous debates in terms of what is needed and viable in Sri Lanka. It is unlikely there will be uniform acceptance of any one model. Some sections of society will continue to debate even the need to have a domestic process. Others will dismiss any domestic initiative and continue their calls for international action. The dynamics and challenges are such that these debates are unlikely to be resolved in the immediate future.
Ultimately, Sri Lankans must decide on the most suitable processes in terms of truth and justice in Sri Lanka. President Maithripala Sirisena and his government have a historic opportunity to address the past and decide on ways forward. This is a moment to address failures of past exercises and take steps to ensure there is non-recurrence of violence. A confidence building measure in this regard is to make public reports of all past investigations and inquiries and provide a status update regarding the implementation of recommendations. But it should not stop at this. The Sirisena government should follow through with their promises. And we must hold them to it.