Image courtesy IRIN

“The regime has changed, but the system remains the same; how can we expect justice from them?,” asked a Tamil nun who survived the brutal conflict between the Sri Lankan Government and the Tamil Tigers in Vavuniya district in Sri Lanka’s Northern Province.

Her sentiments echo a growing sense of skepticism shared by many in the country’s north and east in the willingness and ability of the Sri Lankan State to deliver justice and accountability for victims of the conflict and their families.

Interviews with local lawyers, activists, victims and victims’ families during my recent visit to the north and east reinforced the importance of ensuring a credible transitional justice process that will provide a genuine remedy to victims and survivors, and in so doing restore public confidence in the State.

Achieving this credibility requires, among other things, the participation of a majority of foreign judges, prosecutors, lawyers and investigators in any proposed special tribunal created to address alleged war crimes, crimes against humanity and other serious human rights violations committed by all sides during the conflict.

Since the new government came to power a little over a year ago, Sri Lanka has taken some important and welcome steps towards national reconciliation. Particularly, victims’ hopes for justice were bolstered by the government’s apparent acceptance of the September 2015 report of the UN High Commissioner for Human Rights documenting alleged serious human rights violations and abuses committed by all sides to the conflict. The Sri Lankan government even co-sponsored the subsequent Human Rights Council resolution, which affirmed the importance of the participation of foreign judges, prosecutors, lawyers and investigators to ensure the credibility of a “judicial mechanism” as part of the justice and accountability process.

But the government has yet to demonstrate any concrete initiatives towards fulfilling this promise of accountability. Recent statements emanating from various quarters of the government have fed mistrust among victims in the war-affected north and east. President Sirisena’s January 2016 BBC interview, in which he emphatically rejected the possibility of foreign participation in a proposed accountability mechanism, alarmed many. Equally troubling were his comments expressing full confidence in the existing justice system and questioning the UN report’s allegations of war crimes committed by the Sri Lankan Army.

Prime Minister Wickremesinghe’s statements only a few days later during his visit to Jaffna to mark Thai Pongal, that the majority of missing persons should be considered deceased, also did not go unnoticed. Families of the disappeared have the right to know, to the extent possible, the whereabouts of their family members. The PM’s message suggesting knowledge and admission of their fate, but without further details, left families wanting; I was told more than once that the PM’s statement on the missing was “hurtful” to the families of the disappeared.

Lawyers, activists and medical officers dealing with ongoing human rights cases complained that it is common for such cases to drag on for as much as 10 years due to delays in the police investigative stage, as well as further delays in prosecuting the case by the Attorney General’s department if and when the investigation is concluded. When asked whether these delays were due to lack of political will or capacity, I consistently received some form of non-verbal response amounting to: “Take your pick.”

Police also remain inadequately trained in investigative methodology, continuing to rely almost exclusively on confessions, often elicited by torture or other forms of coercion.

Under the current government, the climate of fear in the north and east has no doubt markedly improved; under the prior regime, for instance, I myself would not have been able to visit, move around and conduct interviews as freely as I did. At the same time, surveillance, threats and intimidation have not ended completely. Victims and lawyers in cases involving the armed forces as alleged perpetrators still face intimidation and obstruction of investigations.

Sri Lanka has had a long and well-documented history of creating domestic commissions of inquiry into serious human rights violations during the conflict, none of which has been successful in adequately addressing issues of impunity, justice or truth-seeking. The International Commission of Jurists (ICJ) has for the past thirty years documented the gradual erosion of judicial independence under successive governments, and the resulting culture of impunity in the justice system. In its 2010 report, for example, the ICJ highlighted the failure of the criminal justice system, as well as the many commissions that have been established, to satisfy the State’s obligations to its citizens due to an absence of State accountability, limitations in the investigative and prosecutorial system and limitations in the law.[1] While the new government has taken some steps to address this, most notably with the restoration of the Constitutional Council, much more work remains to be done.

In such a context, the existing justice system is poorly equipped to handle cases of gross human rights violations and violations of international humanitarian law, including alleged war crimes and crimes against humanity, that will require not only highly technical forensic evidentiary and investigative expertise, but will also involve specific prosecutorial and judicial capacity to deal with issues of modes of liability such as command responsibility for superior officers.

The nun in Vavuniya told me: “We want them to accept responsibility, tell us the truth, and then we can have reconciliation; it is not about revenge.”

The call by domestic and international human rights activists and observers for an accountability process that involves, as a minimum prerequisite, the meaningful participation of a majority of foreign judges and other personnel is very simply a matter of restoring public trust in the rule of law in the country, through a credible, impartial, independent, victim-centric transitional justice process that effectively addresses victims’ right to truth, justice, remedy and reparation, and on whose foundation the country can move forward with genuine reconciliation.

The GOSL can take a significant step towards bridging this trust gap in the immediate term by reaffirming in no uncertain terms its commitment to the promises to which it voluntarily agreed in Geneva last year, including its recognition: that “accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system[;]” that “a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality;” and, of “the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”.

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Nikhil Narayan is the International Commission of Jurists’ South Asia senior legal adviser

[1] ICJ, Post-War Justice in Sri Lanka: Rule of Law, the Criminal Justice System, and Commissions of Inquiry (2010), available at: http://www.icj.org/sri-lanka-icj-releases-report-documenting-the-history-of-impunity-for-human-rights-violations-in-sri-lanka/; see also ICJ, Authority Without Accountability: The Crisis of Impunity in Sri Lanka (2012), available at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2013/01/ICJ-Srilanka-Report.pdf.

  • M.C.M. Iqbal

    As the former Secretary of two of the domastic commissions of inquiry into disappearances of persons I wish to differ from the author’s opinion that all domestic commissions of inquiry failed to adequately address the issues of impunity, justice or truth-seeking .

    This is a sweeping statement he has made in this article against such commissions includes the several commissions set up after President Chandrika Bandaranaike assumed office in 1994 to deal with complaints of disappearances of persons. Set out below are some of the matters that many do not know with regard to the provisions in their mandates and their recommendations. These relate to the disappearances that occurred between 1988 and 1997.

    They were mandated to find out if there is any ‘credible material indicative of the person or persons responsible’ for the disappearances complained of. So the recordings of the evidence of the complainants and their witnesses were limited up to the point where such credible evidence came to light. Questioning beyond that point was irrelevant to the Commissions as they were not courts of law to look for evidence beyond reasonable doubt. When such cases went before the courts of law where the complainants were questioned in detail, the defence took up the position that the witnesses were coming up with stories which were not stated before the Commissions, ignoring the fact that they were not questioned beyond the point of their evidence indicative of the person responsible. This was one of the reasons why almost all the cases filed on the basis of the Reports of the Commissions mentioned, resulted in the acquittal of the accused concerned.

    It was on the basis of the recommendations of these Commissions that a Missing Persons Unit (MPU) was established in the Attorney-General’s Department. It was for this Unit to pick out the cases where the Commissions found evidence indicative of the person responsible to get the rest of the evidence recorded by the Police to tie up the loose ends needed to indict the perpetrator.

    A Disappearances Investigation Unit (DIU) was set up in the CID of the Police Department, following the recommendations of the Commissions, to help the MPU with the relevant evidence needed to enable an indictments to be framed.

    The DIU consisted of Police Officers whose brotherly feelings towards their colleagues in service prevented them from doing the job diligently. When pressure was exerted for action, the files relating to some junior police officers and minor military personnel were attended to, resulting in a few cases being filed. The cases against the top rungs in the respective services remained pending.

    With the changing scenario in the security situation in the country beginning from 2000 onwards led to the implementation of these and other recommendations receiving lesser and lesser attention while impunity became almost a culture. Most of the other recommendations made by these Commissions too were not acted upon.

    These are amongst some of the reasons why the first set of Commissions appointed to look into disappearances of persons failed. What was lacking then, as it happened even later too, is a determined effort of the State to deal with the perpetrators. In other words, it is the lack of political will and not the inadequacy of the recommendations of some of these Commissions that led to all such Commissions being branded as being unsuccessful in adequately addressing issues of impunity, justice or truth-seeking.

    • Lord Shiva

      @M.C.M. Iqbal – Almost every commission appointed by the state failed. Tamils have no confidence in any of the local commissions appointed by the state. UNHRC Commissioner lashed out highly politicized Sri Lankan mechanism including Judiciary that will never deliver anything meaningful and lacks international standards. Only an international independent investigation will bring Justice to victims.

  • K.Baendra

    While there is improvement in relationship in relative terms. political sincerity is lacking. The so called rehabilitated people have yet to see the True Sun Rise,