Sri Lanka continues to deprive itself of the benefits of Transitional Justice

Oct 24, 2017 (LBO) – The United Nation’s special rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence, said Sri Lanka should move forward with establishing comprehensive programs of redress the country has agreed to.

Speaking following the end of a 14-day visit to the country he said failing to do so would constitute to a denial of justice.

“Slow progress on pre-conditions for transitional justice erodes trust in the Government’s capacity to move forward with the reforms,” Pablo de Greiff,  special rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence said in a statement.

“Since one of the aims of transitional justice is to foster trust (among individuals, between communities, and among them and state institutions), but of course transitional justice initiatives do not operate in a vacuum, other measures that have the potential to either foster or undermine the achievement of that aim need to be carefully considered.”

He said he will offer some concrete recommendations moving forward.

Both the analysis and the recommendations will receive further elaboration in the report to be presented to the Human Rights Council in September 2018, he added.

Recommendations:

Overall recommendations:

a) Adopt a comprehensive Transitional Justice Strategy that includes a clear calendar for the implementation of the different transitional justice mechanisms, including truth, justice, reparations, and guarantees of non-recurrence, identifies needs in terms of budget, staff and required expertise, and outlines the links between the different elements of the strategy.

Allow for public consultation of the plan.
b) The Government should take advantage of the report of the National Consultations on the Reconciliation Mechanisms carried out by the Consultation Task Force. The report identifies expectations, needs, challenges and priorities as expressed by key stakeholders and could be invaluable to align the Government’s designs with the needs of the victims. The network that the Consultation Task Force and its Zonal Task Forces put in place in 2016 can be a very positive structure to continue dialogue and consultations around the design and implementation of the mechanisms.

c) Thus far, Sri Lanka has regrettably underutilized the support offered by the United Nations. The country should particularly tap more into expertise that can be provided by the Office of the High Commissioner for Human Rights.

1. Slow progress on pre-conditions for transitional justice erodes trust in the Government’s capacity to move forward with the reforms. Since one of the aims of transitional justice is to foster trust (among individuals, between communities, and among them and state institutions), but of course transitional justice initiatives do not operate in a vacuum, other measures that have the potential to either foster or undermine the achievement of that aim need to be carefully considered. These confidence building measures include:

a) Repeal of the Prevention of Terrorism Act (PTA) and its prompt replacement by new counterterrorism legislation that adheres to international best practices. Promptly deal with long-standing cases pending under the PTA and put in place a procedure to review PTA convictions that were based solely on the confession of the accused.

b) Move to terminate military involvement in commercial activities and reduce military presence in those areas, such as the Northern and Eastern provinces.

c) Carry out a comprehensive mapping of land occupied by the military and land recently released and produce a strategy with deadlines for release and plans for compensation of those areas that will not be returned; consider establishing a procedure that does not make the Armed Forces the sole voice in deciding this question.

d) Cease continued harassment and surveillance by security and intelligence personnel of human rights defenders and other social actors, especially female.

e) Given continued apprehensions about surveillance and security, the transitional justice process should incorporate its own witness and victim protection instruments. The existing (but incipient) witness and victim protection scheme should be strengthened, as it is relevant for emblematic cases pending before the courts.

Truth
a) Publish all reports of previous commissions that have not yet been published, and make their records and archives available for any future transitional justice mechanism.

b) Operationalize the Office of Missing Persons immediately.  Appoint commissioners on the basis of objective criteria to ensure the independence, effectiveness, transparency and accessibility of the institution; ensure the commissioners represent the diversity of Si Lankan society. Period of application should be long enough to permit those outside Colombo and the usual circles to be considered.

b. Ensure the OMP has physical presence in at provincial or district level to facilitate access of victims’ and families. Establish offices in different parts of the country so as to facilitate access.

c. Consider establishing a Committee of victims’ to monitor the OMP.

d. Provide capacity building by experts (national, regional, international) on
crucial skills including forensic investigations.

e. Require all State institutions to collaborate with the OMP procedures.

f. Incorporate psycho-social support for victims to avoid re-traumatization.

Truth Commission

a. A Truth Commission will be a crucial tool to establish patterns of violations over many cycles of violence, demonstrating that all communities have victims and to uncover root causes of discriminatory practices leading to conflict. This calls for giving the commission a broad temporal scope. Legislation establishing a Truth Commission should be adopted promptly.

b. Ensure that victims are adequately represented among the Commissioners and its staff.

c. Ensure support to victims in terms of security and psycho-social services. Make sure that gender considerations are adequately institutionalized at all levels of the Truth Commission’s work.

Justice

a) The lack of tangible progress on emblematic cases suggests serious limitations of the current justice system in addressing human rights violations. Decisive action on these cases could contribute to establishing the justice system’s bona fides regarding human issues.

b) Both the current and any future reliable accountability system will require strengthening capacities that are currently weak or non-existent. Many countries have developed such capacities including in police investigations, forensics, and the articulation of prosecutorial strategies. South-south cooperation agreements to strengthen or develop the relevant capacities are easy to reach and should be sought immediately.

c) The debate about the nationality of judges has led to politicization of the transitional justice discussions. The focus of the discussions about accountability should be on the means and preconditions for the establishment of credible procedures that guarantee the rights of victims and of the accused.

d) Preserve records, documentation of violations, and mapping of existing archives of previous relevant mechanism

Reparation

a) Undertake the serious work (including mapping of the universe of potential beneficiaries, costs, and necessary structures) that will be required to establish a reparations programme to redress violations, and in which the triggering criterion is the fact of having suffered a violation, regardless of all other considerations, including ethnicity, religion, regional origin, or other factors.

b) Make sure that all aspects of the design of such a programme are gender-sensitive, and that they respond to the special needs of women, particularly heads of households.

c) Reparations should not be seen as a tool to ‘sideline’ truth and justice efforts.

d) A reparations program is not the same as a crime insurance programme. Reparation need to be accompanied by an acknowledgement of responsibility. A link with the work of the Truth Commission would be useful in this respect.

Restitution/land

a. Carry out comprehensive mapping of occupied land. On that basis, define a strategy with deadlines of release.

b. The Armed Forces should only retain land that is strictly necessary for security purposes (narrowly and objectively interpreted).

c. Decisions to retain land should not be within the sole purview of the military. A body or procedure should be set up in order to broaden the scope of stakeholders and decision-makers on this issue.

d. Consider establishing a Land Commission as a specialized entity in light of the fact that the land issues go beyond military-occupied private and public land but encompasses multiple conflicting claims over land by communities displaced at different times.

e. While acknowledging that a resettlement policy exists, IDP camps where people have lived for almost 30 years and in conditions that do not befit a middle income country, suggest that this policy needs to be strengthened.

f. Consult beneficiaries on issues regarding new housing programmes to avoid future problems including questions about suitability and indebtedness particularly of vulnerable communities.

Memorialization

a. Memorialization can have a reparative effect provided that it is even-handed and not used by anybody as part of a zero-sum game in which the basic task is to reaffirm a single-sided narrative. Spaces are needed for communities to mourn and remember those they have lost, especially those sites across all regions where civilians died.

Guarantees of non-recurrence

a) The Constitutional reform project was correctly undertaken in part as a non-recurrence initiative. It has tremendous

both preventive and reconciliatory potential. The articulation of a bill of rights for all Sri Lankans is of utmost importance. There are many other issues that are relevant from a transitional justice perspective that could  have been a part of the constitutional reform project. They include strengthening provisions on the independence of the judiciary, the powers of the office of the Attorney General, the delimitation of functions of the different parts of the security system (armed forces, police, intelligence services) and the establishment of multi-layered oversight systems, to mention only a few. As the constitutional reform process moves forward, consideration could be given to some of these issues.

b) ‘Domestication’ of international human rights standards. After the ratification of the International Convention on Enforced Disappeared, enact legislation to incorporate it in the domestic legal system.
c) I strongly welcome the (re-)establishment of the Human Rights Commission and of other independent commissions. The Human Rights Commission, in particular, should be invited to take the role it deserves in the transitional justice process, including participation in the drafting of legislation. More generally, it is not enough to have an independent Human Rights Commission if its views are not taken seriously.
d) In the report I will make a series of specific recommendations concerning the judiciary and the Attorney General’s office, both of which are crucial for the success of transitional justice. I take it as a positive sign that there is awareness of the impact that the enormous backlog has on both victims and the accused, and acknowledge the efforts planned to increase the numbers of courts and judges.
e) Similarly, I will make specific recommendations about the human rights dimensions of security sector reform. Concerning recommendations both on the judicial system and on the security sector, they will be consistent with general recommendations I have made in thematic reports to the Human Rights Council and to the General Assembly
on these very issues.
f) For the time being, I reiterate that increasing capacities on investigations, forensics, and prosecutorial strategies can only help current and future justice initiatives. In all reports I have included recommendations concerning civil society and interventions in the cultural and individual spheres including education, arts and cultures, and archiving. I will address these issues in the full report.

I conclude my 14-day official country visit to Sri Lanka. This visit completes a series of four previous trips to the country for which I was invited by the Government to provide advisory services.

Hence, I have been able to regularly and closely follow the developments in Sri Lanka since my very first visit in March 2015 – barely two months after a new era for the country had started with the January 2015 Presidential election.

This visit, which will lead to a report to the Human Rights Council, comes at a particularly critical juncture, in which determined decisions are called for. I hope to contribute to this process with my preliminary observations and recommendations, which I would like to share with you today, and with the fuller report to be presented to the Human Rights Council next year.

My five visits to the country manifest the openness and willingness on the part of the Government to engage in constructive dialogue, for which I would like to express my appreciation. Since my first visit in early 2015, the Ministry of Foreign Affairs has provided me with extraordinary support prior to and during the visits, including by facilitating and organizing official meetings.

I equally extend my thanks to the United Nations Country Team, its Resident Coordinator, as well as the Senior Human Rights Advisor in Colombo and his team for supporting the visits.