AP Photo/Eranga Jayawardena, via Al Jazeera
The conversation on Transitional Justice in Sri Lanka has hitherto focused almost exclusively on the government’s stated commitments to establish an Office of Missing Persons, a judicial mechanism with a special prosecutor, a Truth Commission and a Office for Reparations. Unfortunately, this conversation does not address the question of security sector reform, which is a central component of Transitional Justice. The OISL Report’s list of recommendations included security sector reform and in particular highlighted the importance of vetting security forces personnel to remove those in respect of whom there are reasonable grounds to believe they were involved in human rights violations. The Resolution co-sponsored by the Sri Lankan government echoed this recommendation, and in particular, Foreign Minister Samaraweera’s commitment to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes. Despite these commitments on security sector reform, it is troubling that this central component of Transitional Justice should be so casually forgotten, particularly when one bears in mind its importance to the smooth and effective functioning of the other mechanisms.
Security sector reform is conducted to ensure non recurrence of human rights abuses and international crimes. It also helps in holding perpetrators of human rights abuses accountable. Further, prosecutions often focus on a very small number of perpetrators, creating an ‘impunity gap’ where the vast majority of perpetrators are never brought to criminal justice. The Sri Lankan security sector has faced a long list of allegations concerning violations of international human rights and humanitarian law. If Transitional Justice is to be effectively carried out in Sri Lanka, institutions that were responsible for violations need to be transformed into ones that support the transition to peace and reconciliation. Abusive institutions must become ones that protect the people, working efficiently and fairly to dispel the memory of dysfunctional and inequitable institutions and to regain civic trust.
A crucial part of reforming the security sector is the vetting of security personnel. While other areas of the reform process deal with more structural issues, vetting deals with individuals within the sector. It has been described as a process to determine each person’s suitability for public employment with the intention of removing individuals personally responsible for human rights abuses. The advent of TJ mechanisms in Sri Lanka to deal with the past necessitates the presence of security personnel who can be trusted. Victims of human rights abuses will be needed to testify before criminal proceedings, a truth commission and an Office of Missing Persons. Without trust in security personnel, any truth or justice proceedings will be overshadowed by fear, and the past will not be put to rest. With the non-existence of such trust and assurance at present, Sri Lanka needs a vetting process.
The process of vetting, unlike the wholesale purges undertaken by some countries, entails a formal, structured process for the identification and the removal of individuals within the security sector found to be responsible for human rights violations. The operational guidelines given by the OHCHR lays out a structured process for vetting. First, the institution and its personnel need to be assessed along with the social context to identify the areas needing reform. Following this, organizational parameters and standards for such reform should be set, based on the prior assessment. This would cover areas such as number of staff, composition of personnel, job requirements and individual standards based on capacity and integrity. Integrity is objectively judged by the individual’s adherence to international human rights standards and professional conduct. Once these standards are defined, a reform process needs to be designed. In order to ensure the independence and legitimacy of such a process, it should be conducted by a separate commission independent of security institutions. A typical process involves registering employees, screening them, assessing their competence and investigating their background. The UN Secretary General’s Report on transitional justice in post conflict countries points out how parties under investigation are notified of allegations against them and are given an opportunity to respond to these allegations before the administrative body. They have the right to reasonable notice of the case, the right to contest the case and the right to appeal an adverse decision to the court or another independent body.
All this is a far cry from wide scale dismissal or disqualification meted out on the basis of party affiliation, political opinion or association with another state institution. On the contrary, vetting aims to remove only those individuals who have committed grave violations of human rights, leaving the security sector with individuals who have the capacity to do their duty well in protecting the rights of all citizens and who have the integrity to uphold the honour of the relevant forces by acting in accordance with the expectations of the law.
Vetting processes around the world have been faced with varied challenges. In Kosovo, vetting was handled by the Department for Security Clearance under the Kosovo Intelligence Agency (KIA). This was done to ensure independence. It became contentious however, when among other things, Members of Parliament exercising oversight over the process were forced to obtain security clearance to access classified information in the possession of KIA. Thus civil and democratic oversight of the KIA were compromised. The Appeals process in Kosovo also presented a challenge. Appeals needed to be presented to another body within the KIA which was supposed to be independent or, as a last resort, to the judiciary. Appeals were not made to the KIA, and since the judiciary lacked the expertise to deal with these cases, eventually a parliamentary committee decided to deal with them despite not being legally permitted to deal with such appeals. The process in Egypt struggled to find a balance in setting standards. They drew overbroad strokes and considered banning participation in the former President’s political life. From there, they grew more draconian, imposing sanctions without evidence of wrongdoing and ignoring criminality and abuse carried out outside the ruling party elite. Kenya’s on-going vetting programme has been very slow due to lack of political will and has raised anxiety within the security sector. It also lacks transparency and independence from political interference. While the vetting is supposed to be undertaken on the grounds of competence and suitability, focussing on professionalism, performance, discipline, human rights record and qualifications; the focus has instead shifted to issues of wealth and finances of the personnel with little attention given to actual service records. There have also been allegations of corruption against those in Authority. Sri Lanka is not immune to any of these challenges. In addition to these, the public’s sensitivity to the notion of security sector reform is very limited.
That vetting is a necessary part of security sector reform in ensuring non recurrence cannot be disputed. That the Sri Lankan government has pledged itself to undertake and ensure such reform is a fact. Sans effective vetting processes, victims will remain in fear of those who abused them and violated their rights. If left unaddressed, this fear could derail any truth or justice process.