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In Search for a Domestic Truth and

Justice Process in Sri Lanka

by Bhavani Fonseka - on 03/09/2015

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
Raad 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 Habr 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
Sirisenas 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
Africait has been their national charactercitizens of the same country,
perpetrators, and victims, facing each other under the gaze of a justice that
has national legitimacythat has produced the most enduring peace and
reconciliation afterwards. If reconciliation is ever to make progress in Sri
Lankaand 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.
Ways Forward
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.
Posted by Thavam

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