Groundviews

Diaspora Participation in the Transitional Justice Process

Featured image courtesy Tamil Guardian

‘I gave my statement not only for what I hoped to achieve, but on behalf of the hundreds of people at home who could not raise these issues … I wanted the truth to be known to the UN and the powerful international community so that the coming generation of Tamils can live like any other community, with peace of mind, dignity and a feeling of belonging.’

In 2012, the Public Interest Advocacy Centre (PIAC) – a non-profit law and social justice organisation based in Australia – began taking witness statements and gathering other evidence of violations of international law and international human rights law allegedly committed by both sides in the final stages of the Sri Lankan civil war.

With many victims and witnesses forced to seek asylum overseas, PIAC focused on taking statements from those outside Sri Lanka, particularly in Australia.

Now, as Sri Lanka begins the process of comprehensively dealing with the past and moving towards reconciliation, these same victims and witnesses must be part of the equation. Their participation in, and engagement with, the transitional justice process will be key to achieving a lasting peace in Sri Lanka.

Diaspora participation in the consultation process

Sri Lanka’s Consultation Task Force on Reconciliation Measures was formed in January 2016 for the purpose of ascertaining the views of all stakeholders, and particularly victims, on the processes and mechanisms for reconciliation in Sri Lanka.

Upon its appointment, the Task Force reiterated ‘the importance of broad-based island-wide consultations as a critical step in the transitional justice process, to ensure public legitimacy, ownership and participation, particularly to give voice to victims from all communities.’

However, a significant number of victims and witnesses of crimes allegedly committed during the civil war no longer live in Sri Lanka, either on a temporary or permanent basis.

Despite their distance, those who now reside beyond Sri Lanka’s shores have a critical stake in the country’s transitional justice process.

They want the process to succeed and to engage with it. They have important views and perspectives to contribute to the design of the Sri Lankan Government’s proposed reconciliation measures. They want to see the truth come out about violations allegedly committed by both parties. And they have important evidence and information about those violations to provide to the new transitional justice mechanisms, including the special court, truth commission and office of missing persons, once they are established.

Crucially, these victims and witnesses also have unique needs in order to facilitate their participation in Sri Lanka’s transitional justice process.

With the Sri Lankan Government having pledged to take into consideration the Task Force’s findings in the design of the country’s transitional justice mechanisms, it is critical that the voices of those located outside of Sri Lanka also be heard in the consultation process.

Views of victims and witnesses in Australia

When PIAC became aware that many victims now living in Australia were either not aware of the consultation process or were reluctant to make a submission themselves through the Task Force’s online questionnaire, it decided to facilitate a submission on their behalf.

PIAC conducted one-on-one interviews with 16 people directly affected by Sri Lanka’s civil war. They currently live in five different capital cities in Australia. Four have been accepted as permanent residents and the remainder are on bridging visas (four of whom have already been accepted as refugees and are awaiting Temporary Protection Visas).

Each interviewee was either a direct victim of the war, had immediate family members who were victims or were witness to the commission of human rights violations and abuses – or a combination of all three. The range of international crimes and other human rights violations reported to have been suffered or witnessed by the interviewees include: torture; rape and sexual violence; enforced disappearances; indiscriminate attacks, including against hospitals; and violence to life and person, resulting in both death and permanent disability.

In addition to the questions in the Task Force’s online questionnaire, PIAC also asked interviewees a number of additional questions related to the unique needs of victims and witnesses now living outside of Sri Lanka.

PIAC’s submission to the Task Force does not attempt to conflate the views of the 16 victims and witnesses into a single response. Although the group share much in common, including their distance from Sri Lanka, PIAC did not want to detract from their individual responses by doing so.

That said, some common themes emerged in the interviews and we highlight them here to draw attention to the views of victims and witnesses living outside Sri Lanka. More generally, we hope this will make a useful contribution to the overall discussion about what is needed to achieve a lasting peace in Sri Lanka.

The need to uncover the truth

The dominant view amongst interviewees was that uncovering the truth of what happened during the conflict was the most important issue. Many expressed the belief that it will only be after the Sri Lankan Government accepts and acknowledges, without reservation, what happened during the war that other issues, such as dealing with perpetrators and providing reparations, can be addressed. As one interviewee said:

‘First the Government needs to accept the wrongdoings that were committed and make an apology. From that, the rest will follow.’

On the importance of the truth being told, another interviewee explained:

‘For me, the truth has to come out first. I really want the world to know how much I suffered during the war, caused by both sides [the Sri Lankan Security Forces and LTTE]. What happened to me should be known by the whole world and should not die with my generation. The future generations should know what happened to me and others in the war. Punishment alone by a court will not stop it happening again. What I want to see is the truth come out and for the Government to accept and acknowledge it – to acknowledge our suffering.’

The need to find out what happened to missing persons

Many interviewees observed that an important component of uncovering the truth is finding out what has happened to missing persons. As one interviewee stated:

‘All of the issues are intertwined. For me, what is most important is the issue of missing persons. In my village, there are 380 female single-headed households – 150 are widows, but the rest don’t know where their husbands are. They cannot move on and they live in fear as the village is surrounded by the military and they have no husbands. So that issue must be looked at first, but linked to that is that the truth must come out – the truth about missing persons, about war crimes and about everything that happened.’

The most commonly expressed view amongst interviewees was that it should be straightforward to address the issue of missing people, and that if the Sri Lankan Government were serious about it, the process should be fast and simple:

‘It is only a simple thing that they [the Government] need to do – tell the relatives whether their loved one was shot or is alive. If they are alive, tell them where they are, and if they were shot, tell the family where and when and how it happened.’

The need for international participation in the special court

All interviewees insisted there must be international participation in the judicial mechanism for it to be credible.

Some interviewees said that all judges serving on the special court needed to be foreign. Others were willing to accept that a majority of judges, but not all, come from the international community. Only one interviewee said that while international participation was essential, a majority of judges should be Sri Lankans (both Tamil and Sinhalese).

The main reason cited for wanting the participation of international judges in the judicial mechanism was a strong belief that judges from Sri Lanka could not be impartial or at least be seen to be impartial. For example, one interviewee said:

‘Whether Tamil or Sinhalese, no one from Sri Lanka will be seen to be impartial. So whatever the judgment, victims will never accept it and we will miss a great opportunity to bring this to a closure. So if the judges are not from Sri Lanka, then victims will accept [their judgment] and move forward.’

Many interviewees also commented on the appointment process for judges, noting that it should be conducted by a neutral body or panel (made up of people from the UN or international community), and should not be influenced by the Sri Lankan Government.

A desire to give evidence from outside Sri Lanka

Interviewees expressed a desire to give evidence before a special court. As one said:

‘Before I die I want to give evidence in a court for what I have gone through and seen. If not, I will not be able to seek justice for all those I saw die. I survived to be a witness to their suffering.’

Nevertheless, all bar one interviewee said they would be unwilling to go to Sri Lanka to give evidence. This was due to a fear for their safety and the safety of their family members still living in Sri Lanka:

‘I have lost a lot, and I really feel like I don’t have anything to lose, so I could travel to
Sri Lanka [to give evidence]. But – I have a family and I don’t want them to undergo anymore trauma than they already have, so I will not go to Sri Lanka. But I am willing to go anywhere outside Sri Lanka to give evidence to any internationally affiliated body.’

In terms of giving evidence from outside Sri Lanka, interviewees all preferred to give evidence in person, subject to various conditions: that the hearing be conducted in a neutral location; that it be conducted before international judges; and that adequate protections and guarantees of privacy be given.

The judicial mechanism should focus on the final stages of the conflict

The overwhelming majority of interviewees said that the judicial mechanism should focus on violations committed in the last stages of the war, including the period after the war when people continued to go missing and violations continued to take place.

Many of those interviewees felt that although violations had taken place before the last stages of the war, the earlier years of fighting had constituted a war in the more traditional sense (i.e. between two competing armed forces) and there had been losses on both sides. They saw a distinction between that period and the final stages of the war, when civilians were attacked en masse. As one interviewee explained:

‘Before [2008], we were still displaced and hiding, but there was a war happening then so we expected it. But it is the period after that when most of the crimes happened; when it was just one side [the Government] indiscriminately killing Tamils.’

The need for a political solution to ensure non-recurrence

The overwhelming majority of interviewees said the conflict in Sri Lanka came about due to discrimination against the Tamil community, with the result that Tamils did not feel they were equal citizens with equal rights, nor that they belonged in their country. To ensure non-recurrence, most interviewees said a political solution was needed to address these root causes and deal with the long-term discrimination against Tamils.

Most interviewees spoke of the need for self-determination in the north and east as part of the political solution. For example, one interviewee observed that:

‘The Government needs to put in place a political solution recognising the Tamil call for self-rule. That has been the only thing Tamils have ever asked for. We live mainly in the north and the east and have our own language and culture and traditions. We just need to be treated as equal citizens and need a political solution to address our desire for self-determination.’

A right for citizens to mourn when and how they want

There was universal agreement that all citizens should be given the freedom to mourn and commemorate the losses suffered in the war in their own way. As one interviewee observed:

‘What is very sad is that my wife, who is at home [in Sri Lanka] … we lost our dear son and she could not even light a lamp in accordance with the Hindu tradition on the day he passed away. I mourn for him here in Australia, but my wife can’t even light a lamp in the house.’

Trust and safety are key to diaspora participation in the transitional justice process

Interviewees referred to two key obstacles to their participation in the transitional justice process: first, a lack of trust in the Government’s desire to conduct a genuine reconciliation process; and second, on-going concerns about their safety and that of their family members still in Sri Lanka.

In terms of both safety and trust, the dominant view was that if the transitional justice process is done in consultation with (and including participation by) the UN and international community, victims and witnesses outside Sri Lanka would feel comfortable participating:

‘The only way to have genuine participation of the diaspora is by having international participation in all four mechanisms [the truth commission; judicial mechanism; office of missing persons; and office for reparations] – then the diaspora will trust the process enough to provide their views and participate.’

As an overall comment, all interviewees spoke of their interest in following the transitional justice process and keeping abreast of developments. As one interviewee said:

‘I have to be able to watch the court proceedings, because I am the one who lost everything and has pain. So it is essential that I can see what is happening.’

With so many of those directly affected by the decades-long conflict living outside Sri Lanka, engaging the diaspora will be crucial to the success of the country’s reconciliation process. And to engage them effectively, it is critical that the unique needs of victims and witnesses outside Sri Lanka be taken into account in the design of the country’s transitional justice process. Securing a lasting peace cannot be achieved without them.

Although many interviewees said they could not yet imagine a time when they will feel safe to return to Sri Lanka, that hope remains:

‘As Tamils, all we wanted was to live in our own land and have equal rights as citizens in that country. If you look at me, I have lost my own [limb], I have suffered sexual abuse. I lost my dignity and I have come to a new land, a new country, and left my whole family and everything I knew and had. All I want is to live with my family in my land and feel safe and have that dignity. We are not asking for anything more than that.’