Photo courtesy of Kumanan Kanapathippillai
In the lead up to the September session of the United Nations Human Rights Council (UNHRC) the Government of Sri Lanka floated the proposal of establishing a truth and reconciliation mechanism (TRC). In effect, this is nothing new as the Government had already made this commitment exactly seven years ago. The TRC is one of a number of measures relating to transitional justice and human rights already agreed to by the Government as part of the UNHRC Resolution 30/1, which it co-sponsored in September 2015.
It is profoundly challenging to create a TRC that could address long-standing grievances, be sensitive to the specific needs and aspirations of those most directly affected and bring about acknowledgement and understanding between communities. As argued in this article, a key tool to doing so would be to adopt a consultative approach to inform the design of the mechanism and its plan for operationalization.
The CTF
In this regard the reports of the Consultation Task Force for Reconciliation Mechanisms (CTF) provides a useful starting point for reflection.[1] The CTF was established in January 2016 by the Government of President Maithripala Sirisensa to ascertain the public’s views, particularly that of victims. The CTF used several methods to gathering recommendations, but a key tool was the establishment of 15 local zonal committees who held public meetings in every district and focus group discussions with specific sets of victims. The CTF marked a significant achievement in ensuring greater representation and inclusion of affected communities and victims in the Sri Lankan state’s efforts to respond to the violence and harm that led to and resulted from large-scale conflicts in the country. The failure of successive governments to take adequate consideration of these viewpoints and recommendations contained in the CTF’s reports, however, further undermined public confidence in the transitional justice mechanisms that were set up in recent years.
The chapter on the TRC in the Final Report collated diverse viewpoints raised by the public ranging from the type of skill sets and experiences required of the commissioners and staff serving on the TRC to issues and conflicts to be addressed, providing crucial perspectives to those thinking through how and whether a TRC could work. In this article I will focus on one significant question: “what is the purpose of establishing the TRC?” If legislation to establish the TRC is to be presented in the coming months it is important to debate and reflect on why such a mechanism is necessary and how it could work. While drawing from the CTF’s reports I will also reflect on my own observations of public meetings as part of the CTF process, of which I was a part of, and my engagement with survivors of human rights violations.[2]
The applicability of the TRC model
The TRC became a global phenomenon in the 1990s for societies in transition, emerging from large-scale conflicts and/or military regimes. Latin America is the region that has seen the highest concentration of TRC-type structures. Yet, it is South Africa that remains the poster child for this type of mechanism, although there has been significant criticism of how it functioned and what it ignored.
The TRC model, however continues to been seen as a key component of the transitional justice tool kit for contexts where mass violations overwhelm the justice system; deeply rooted grievances have not been addressed by a fractured political system and profound divisions in society threaten a return to instability and further violence. The TRC mode has been adapted to diverse contexts to address various types of conflicts and societies with varying outcomes.
The underlying purpose of a TRC is to ascertain the truth through sessions where victims, community leaders and even accused perpetrators present testimony, which allow ‘truths’ to be publicly heard and acknowledged, and for a final report (which accounts for the violations, often with lists of victims) to be published, with recommendations for the authorities to take forward. In each context the mandates and approaches of the TRCs may differ, but the overall working assumption is that inquiries and truth telling into specific crimes and violations will promote historical clarification, understanding, healing and reconciliation.
This model has been critiqued for a broad range of reasons, including the compromise on justice it demands, particularly when amnesties are offered for serious human rights violations in return for truth, in contravention of international human rights obligations that require states to investigate and prosecute such crimes. The marginalization of specific conflicts, issues and communities is a further area of contention as individual TRCs are mandated to prioritize specific problems. Thus, there needs to be some effort to examine the approaches of different TRCs not just to contextualize and adapt this model but also to determine if such a mechanism could prove effective in Sri Lanka
Some of the submissions to the CTF spoke directly to the concern of applicability of the TRC model: one submission questioned how appropriate the South African model was to the Sri Lankan context, while others called for a study of truth commissions from across the globe and similar national mechanisms.[3] The challenge is not merely to engage in a comparative legal study of international examples but to assess them against the specificities of the Sri Lankan context.
A burdensome legacy of commissions
The legacy of numerous commissions set up by successive governments to inquire into human rights abuses was highlighted in a number of submissions. Some highlighted the importance of reviewing the recommendations of previous commissions and ensuring their implementation while others vehemently objected to the TRC, raising questions as to whether this new mechanism would be different from a long list of other state commissions.[4] One senior citizen from the North claimed he made submissions before the Sansoni Commission in 1977 and, given the number of successive commissions and unimplemented recommendations, he questioned what would another commission do differently to all the others?
One of the most common sentiments expressed by those attending the CTF’s public meetings, which I attended in different parts of the country, was the overall exhaustion in dealing with multiple agencies of the state, from permanent investigating bodies, such as the police, to ad hoc commissions. It was impossible not to be moved by the palpable grief, desperation and pain of countless family members who spoke of their loss and efforts to find answers, justice and other forms of redress. Some victims, such as the families of the Embilipitiya disappeared students of 1989-1990, have exhausted available forms of domestic redress: the case was highlighted in a PCOI[5] and key perpetrators were prosecuted in court, but the families have not yet been able to ascertain what happened to their loved ones, including to identify where their remains are. So in such a case where the state already possesses so much information and documentation what is a TRC meant to do?
One submission from the North noted that families of the disappeared in particular have been “made to re-live their trauma again and again as they retell their stories without avail.”[6] In addition to the risk of re-traumatisation of and causing further emotional distress and pain to victims, there is a real threat of intensifying disillusionment and anger against the State from affected communities as the onus will once more be on victims to account for the violations that they suffered.
The experiences of dealing with Commissions of Inquiry (COIs) and other ad hoc mechanisms has created apprehensions and suspicions of a truth-seeking mechanism. Victims pointed out the numerous times they had provided testimony to different state agencies and pointed to the lack of follow-up action to ascertain the truth. Some highlighted the instances where state officials refused to record the identity of perpetrators or even take the complaint, or where the victims were subjected to harassment or sexual bribery.
A number of submissions drew attention to the importance of a favourable environment that would allow for victims and community leaders to be able to speak freely without the fear of being harassed or persecuted. Submissions pointed to of incidents of harassments where complainants of human rights violations felt that they were being investigated rather than the alleged perpetrators. This is definitely a challenge the proposed TRC will face in this current climate where security and protection are real concerns with incidents of harassment of victims and civil society groups being reported, especially from the North and East, in addition to those associated with the Aragalaya.
As noted in the CTF report “COIs have become synonymous with impunity given the lack of action and follow-up measures on these findings.”[7] Victims, like the families of surrendees from the end of the war, have had to confront a state that is not just disinterested in their plight but one that has sought to contest, undermine and even attempt to erase the “truths” that they have witnessed and experienced. As such even the consultations themselves were viewed with suspicion and part of the inaction of the state.[8] It is this legacy of systemic failure that the TRC has to confront, rather than assume that it has an open slate to call for victims to speak out as if this is the first time that the State is hearing their pain and pleas.
Opposition and re-envisioning
There were a number of submissions that expressed outright opposition to the establishment of a truth-seeking mechanism. The reasoning was varied: some for fear that it could become a tool for inaction and impunity, as cited above, while other individual submissions explained that it could undermine national security, derail growth, further erode existing ethnic relations and be a waste of public funds. Some submissions from the North Western and North Central provinces were fearful that this mechanism was linked to efforts to pursue justice. The implications of a TRC on the struggle for justice was also a source of concern for those who were demanding justice for violations. Submissions raised questions such as how cases and evidence relating to crimes would be handled and whether they would be passed onto a justice mechanism.[9]
At the time of consultations there was an expectation, even among human rights groups, that victims would largely provide testimonies of suffering, not solid recommendations. Instead, victims sought not just not just to narrate the principal violations that they had suffered but also contextualized their suggestions with their experiences of dealing with the state during the process of seeking redress. For instance, some female victims insisted on a quota of female officers and a specific sexual harassment policy for mechanisms so as to prevent the various forms of sexual harassment that they had faced.
But some went further re-envisioning transitional justice measures beyond HRC Resolution 30/1, forcing the CTF itself to come up with a chapter entitled ‘Transitional Justice Beyond the Four Mechanisms.’[10] In public meetings, such as in the Vanni, where it appeared that a traditional model of the TRC was rejected, the call was for a public tribunal.[11] In such submissions victims spoke of a mechanism that would have some features of a TRC, such as public testimonies, but also elements of justice, including a trial and punitive measures.
The call for truth
In contrast to the divergent views on the TRC expressed to the CTF, the demands for truth were overwhelming, particularly from those most directly affected. Families of the missing and disappeared in particular turned up in significant numbers in different locations across the countries demanding to know what had happened to their loves ones. For some the right to truth was their primary and most urgent demand and they were unwilling to comment on compensation or any other form of reparations until they had an answer since they feared reparations would be interpreted by the state as a lack of interest in truth and justice.[12]
A number of submissions drew attention to the various objectives that a TRC could serve: establish the truth, determine the root causes of conflict, hold perpetrators of violations to account, build multiple narratives of history, make recommendations for non-recurrence and enable victims to seek redress for violations and abuses among others.[13] Representatives from diverse communities spoke of historic grievances and specific violations: the last months of the civil war, the JVP insurrection of the late 1980s, border villages during the war, refugees, journalists, LGBT and women’s groups also made a case for inclusion in a truth mechanism. Combatants from different armed factions responded to the consultation’s focus on ‘victims’ with one military personnel asking “This is more victim centered. It should be, but what about us?”[14] Some submissions demanded that specific incidents, including individual massacres, be addressed, while others suggested specific types of violations like anti-Muslim violence and child recruitment, and still others wanted structural violence and discrimination, such as against the Malaiyaha Tamils, to be addressed.[15]
Those seeking to design a TRC need to confront the dilemma that there is a demand for truth not linked to such a mechanism. They need to find ways of addressing it, rather than seeking to be dismissive of the critiques of the TRC. In particular, the lack of action in providing truth thus far, including through the Office on Missing Persons (which I served on) coupled with the volume of testimony and documentation gathered by the State over the decades raises a serious question as to whether yet another commission should gather more information from victims instead of first committing itself to consolidating information already with the State.
Although the specific legislation for a TRC may differ significantly from COIs a careful study into how the latter operated and obstacles they faced would highlight specific gaps to gathering information and carrying out investigations that need to be tackled by those framing the TRC law.[16] As such, looking at the powers, particularly of investigation, and overall design of the process, including actions to be taken by the State in parallel to the TRC and a plan to implement its recommendations, need to be thought through and spelled out. A key lesson from experiences of previous COIs, is regardless of the strength of testimonies given by victims and the potency of the findings and recommendations, political will to implement was what was lacking. So in this current context of political and economic upheaval what exactly is the Government committing itself to besides establishing a TRC, which may well end up struggling to be heard by the very same Government that set it up?
Symbolic and substantive value of consultations
So who is this TRC intended for? If it is meant merely to placate international pressures it is not too difficult to establish: summon a set of lawyers who will draw up a bill that may borrow aspects from other TRCs overlaid with applicable domestic legal procedures that will be rushed through Parliament, and appoint a set of individuals loyal to the state. This will, however be a prototype for replicating past mistakes and failures. However, if the aspiration is to learn from Sri Lanka’s repeated experiments with commissions to inquiry and respond to those most directly affected and to set up a process that will grapple with a painful past in order to acknowledge wrongs and to commit to measures to address these in order to create a fairer country, this requires a different path.
The process of design will influence how the public, especially victims, will perceive and engage with the mechanism. In this regard ensuring a consultative approach is imperative. Doing so would have both symbolic and substantive value for a future TRC. While the CTF reports offer important perspectives and concrete suggestions based on affected communities experiences it is important to remember that more than six long years have passed since the consultations. Although some transitional justice measures were implemented, they did not meet public expectations, particularly relating to the fate of the disappeared, while on other commitments, especially those relating to justice, there has been no substantive progress. The failure to achieve any breakthroughs on emblematic cases has seriously undermined public confidence in finding justice domestically. The concept of the TRC was floated in 2016 as one of four mechanisms, including a justice mechanism. In the absence of the latter, a TRC is viewed as part of the state’s smokescreen to distract the international community and general Sri Lankan public.
If this proposed mechanism is to begin to command legitimacy, credibility and public trust consultation is vital. These consultations, however should not be merely cosmetic but engage not just Colombo-based civil society figures, but community leaders and representatives of victims from across the country. These consultations need to grapple with hard questions, including whether a TRC is required. Rather than assume that the need for a TRC is self-evident it would be wise to assess the role a TRC can play in finding truth and what measures need to be taken separately and in parallel to assist the larger process of seeking truth.
Mirak Raheem was a member of the Consultation Task Force on Reconciliation Mechanisms (2016) and a commissioner on the Office on Missing Persons (2018-2021).
[1] The CTF produced a number of reports including the Interim Report in August 2016 that provided initial submissions relating to the Office on Missing Persons and a three-volume final report in January 2017 containing the public’s submissions (Volume 1), reports of the 15 Zonal Task Forces (Volume 2) and the observations and recommendations of the CTF committee (Volume 3).
[2] I served as one of the eleven members of the CTF whose task it was to design and implement the consultation process.
[3] Volume 1, p.114
[4] Volume 1, p.110.
[5] Presidential Commission of Inquiry into the Removal or Disappearance of Persons: Western, Southern and Sabaragamuwa (January 1995 – September 1997)
[6] Interim Report, p. 13.
[7] Volume 1, p.111.
[8] Volume 1, p.112.
[9] Volume 1, p.174.
[10] Volume 1, p. 288-356.
[11] Volume 3, p. 96.
[12] Interim Report, p.14.
[13] Volume 3, p.91.
[14] Volume 1, p.121.
[15] Volume 1, p.118-139.
[16] Volume 1, p.140.
