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UN expert - Sri Lanka's delays in transitional justice raise questions about govt's determination

The UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff highlighted the insufficient progress made by Sri Lanka as he concluded his trip to the island, and said that delays in the implementation of transitional justice measures "raise questions in many quarters about the determination of the government to undertake a comprehensive transitional justice programme."

In a statement published on Monday, Mr Greiff also said that the "slow progress on pre-conditions for transitional justice erodes trust in the Government’s capacity to move forward with the reforms", calling on the government to institute a number of measures including the repeal of the Prevention of Terrorism Act; terminating the military involvement in commercial activites as well as reducing their presence in the North-East; operationalise the Office of Missing Persons immediately and make progress on delivering justice for emblematic cases. 

Whilst acknowledging measures taken by the government on other areas, Mr Greiff said,

"However, the fact that this list of achievements does not include most of the priority measures that I mentioned in the statement after my first visit (dated April 11, 2015) makes obvious that the process is nowhere close to where it should have been more than two years later". 

His statement added, 

"Some of the pending issues I had mentioned in April 2015, include: the release of land, the repeal of the Prevention of Terrorism Act (PTA) and its replacement by legislation that is fully compliant with human rights standards, the establishment of a mechanism to review expeditiously the cases of those held under the PTA, and the cessation of overbearing and intimidating forms of surveillance especially against women, human rights activists, and those involved in memorialization initiatives in the North and East. Each of these issues involve questions of basic rights and thus, the continued failure to achieve progress in fully addressing them constitutes a denial of justice.

Furthermore, the delays raise questions in many quarters about the determination of the government to undertake a comprehensive transitional justice programme and undermine trust, which is not plentiful—as demonstrated by continued incidents of inter-ethnic violence."

"Moreover, the delays have additional spill-over consequences. To illustrate, although some of the land occupied by the Armed Forces, in some cases for decades, has been returned, the lack of clarity and comprehensiveness in the process – a process in which the Armed Forces are both a party and the Judge (they seem to solely determine which pieces of land are returned and when) has serious consequences from a developmental standpoint. It speaks about a weak regime of property rights, one of the greatest imaginable disincentives for foreign investors for whom reliable property rights is a sine qua non condition. Similarly, continued unnecessary surveillance both manifests and fuels low levels of trust which not only makes reaching agreements more difficult but constitutes a developmental drag through effects that are similar to a reduction in market sizes and an increase in transaction costs. The fact that the judicial system is so backlogged and slow (with a recent study pointing out that some cases often take more than 17 years to resolve) only compounds the difficulties."

Highlighting Sinhala criticism that "war heroes" will be targetted by transitional justice measures, Mr Grieff said in his statement: 

"Transitional justice processes are nothing like ‘witch hunts,’ they do not involve massive purges, and do not trade on charges of collective responsibility or guilt by association. In this respect, I note with concern the use of rhetoric such as ‘war heroes will never be brought to trial.’ This seems to me to misrepresent the target of transitional justice accountability measures by suggesting that it is a generally anti-security agenda, and also by forgetting that no one who has committed violations of human rights law or of the laws of war deserves to be called a hero. Sifting precisely between the legitimate and lawful use of force and the contrary, under conditions in which all relevant due process guarantees are meticulously adhered to, and in which not only the rights of victims but also the rights of suspects and the accused are protected, is one of the points of transitional justice accountability."

"I will add that the promise mentioned above regarding ‘war heroes’ is a legally unenforceable political statement, and therefore cannot offer any real security. In order to make it effective it would ultimately require a violation of the principle of the separation of powers, the independence of the judiciary, amongst others. Moreover, needless to say, it offers absolutely no warranty internationally.

"As the recent case presented in Brazil against a former member of the Armed Forces demonstrates, accountability will be sought either here or abroad. In my opinion, this is an additional reason for the country, with the full support of the Armed Forces --who stand a lot to gain from this process-- to establish a robust and credible comprehensive transitional justice policy."

Find full statement here. Extract of recommendations are reproduced below: 

 

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.

 

2. 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.

a. 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.
 

c) 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.

3. 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.

 

4. 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. Reparations need to be accompanied by an acknowledgement of responsibility. A link with the work of the Truth Commission would be useful in this respect.

a) 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.

b) 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.

 

5. 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.