A New Commission for Restorative Justice

To deal with difficult past practices of abuse and violence

by Asian Human Rights Commission, Hong Kong, May 7, 2010

The communiqué from the Presidential Media Unit announcing a probe into the violations of internationally accepted norms of conduct has incorporated several new words and phrases which are not yet familiar terms in the political discourse in Sri Lanka. A few such words and phrases are: the need for restorative justice; a probe of violations of internationally accepted norms of conduct; no recurrence of such tragic conflict in the future; institutional, administrative and welfare measures already taken in the post conflict phase and which should be further taken in order to effect reconstruction, rehabilitation and reconciliation; legislative and administrative measures that may be necessary to prevent such situations in the future; assessing the lessons learned from the recent conflict phase; identification of any persons or groups responsible for such acts, (and) payment of compensation for victims.

For a long period the government took up the position of burying the past as the best policy to be used in order to avoid the surfacing of the unhealed wounds. However, such a view, which has been taken in other places after the country has faced mass atrocities has not been an enduring policy. It simply becomes necessary to deal with the past. The only issue is how daringly such a task will be faced. This of course depends on the political will of the country's leaders and the civil society leaders of the time. If the country is blest with an enlightened leadership politically as well as other areas of intellectual life it becomes possible to take far reaching actions in dealing with past atrocities and violence and violations of human rights.

At what stage that level of farsightedness exists in the Sri Lankan political spectrum as well as the various leaderships that influence the thinking of civil society is yet to be seen. The voices in the wilderness which are usually the most importance voices of such times, who, despite being in isolated conditions put forward before society the need to face its own history are also important. They put forward various aspects of developing the kind of thought patterns and strategies that a society may, at a certain time, utilise in order to come to terms with its past and deal with the possibility of developing a new political and social consciousness that could be the foundation of future relationships within a particular society.

Perhaps in the situation that Sri Lanka is now trying to address it would be useful to recall some other attempts by other countries to go in this direction. In the years following the Second World War the German society was faced with a period of severe psychological and social problems in dealing with its own immediate past. For many in Germany it became a problem to realise that they were capable of falling into the trap of supporting a terrible dictator as their own leader. Many would recall that their own families followed Adolf Hitler with admiration at some point in time. For many the fact that their own children became soldiers in the Nazi army and were capable of carrying out atrocities towards people of their own country, such as the Jews, and the people of other countries as they were engaged in a war was also a severe trauma to deal with. How was it possible that what they once considered to be ideal and the natural way of doing things had gone so wrong?

With the sheer incapacity to deal with these problems many people thought it better to simply forget about such things and to begin a new way of living. However, the past that the people are involved in is not something that can be forgotten so easily.

An extremely talented psychologist, Alexander Mitscherlich realised that many people who came to him for treatment were not really suffering from any identifiable illness. After long years of clinical work he realised that their illnesses were a product of their inability to mourn their past. Mitscherlich and his wife Margarete, wrote a famous book which was translated into English under the title, Principles of Collective Behaviour—the Inability to Mourn, which was based on their experiences of this time. This book, which later became a household item deals with the enormous need for human beings to mourn the social wrongs that people commit collectively as much as the people have the need to mourn in the face of personal tragedies. Social tragedies leave deep impressions in the inner self of human beings living at a certain time as do the personal tragedies in the lives of people.

The approach that is spoken of in this book was later developed throughout the world in dealing with similar problems that societies are faced with. The problem of dealing with past wrongs is not just a matter of dealing with some kind of political narrowing to escape from a troubled past but rather a process of social reflection by which society deals with its own past in a mature way.

The people of many societies in recent history have faced similar problems and there are many attempts in these societies to try and deal with these problems. One of the best known examples in this direction is the experience of South Africa.

The Truth and Reconciliation Commission of South Africa was developed after the defeat of apartheid and in the process of development new political strategies for a new South African society. Enormous atrocities had been done by the apartheid regimes and in retaliation to such atrocities there was also violence by black groups against the whites as they were caught up in this cycle of violence.

In dealing with this whole process the older forms of justice of merely trying to bring the perpetrators to court was not capable of providing solutions to the problems faced in South African society. The truth and reconciliation commissions, as was mentioned by Bishop Desmond Tutu, who chaired the Truth and Reconciliation Commission, adopted the concept of restorative justice. By restorative justice was meant the attempt to restore the dignity of the people and social relationships that were destroyed by societal violence.

Whether the Truth and Reconciliation Commission was an adequate model in dealing with this problem remains a controversial issue. However, that this model of dealing with the past is also an important aspect of the methodologies that have developed to deal with such problems is recognised by all despite of the various controversies surrounding the extent of its achievements.

Many countries such as Chile and Argentina also have developed various methodologies in dealing with their past. The questions relating to Augusto Pinochet and the various trials that evolved against him for the use of his office as President of Chile to authorise the commission of atrocities is also known. However, that process was possible only because of the involvement of many persons within Chile in order to deal with the enormously unacceptable violence that developed during this period.

With the announcement by the Presidential Media Unit of the appointment of a commission to probe the violations of international norms of conduct a discourse has been opened within Sri Lanka on this theme. The particular jargon that has been introduced by the communiqué of the Media Unit uses the same terminology as is now used in the discourse of what is known as restorative or transitional justice in the international discourse on these matters.

The question really is as to how seriously and how much depth all sectors of Sri Lankan society will utilise this approach in order to deal with the enormous problems that are faced about its own period of atrocities in the recent past in all parts of the country, the south, north and the east.

Please also see SRI LANKA: The Asian Human Rights Commission cautiously welcomes the move for the appointment of a commission for truth and reconciliation at: http://www.ahrchk.net/statements/mainfile.php/2010statements/2531/ 

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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Sri Lanka: Government Proposal Won’t Address War Crimes

by Human Rights Watch, May 8, 2010

The Sri Lankan government's suggestion that a newly announced commission will provide accountability for laws-of-war violations during the armed conflict with the separatist Liberation Tigers of Tamil Eelam (LTTE) is yet another attempt to deflect an independent international investigation, Human Rights Watch said today. Human Rights Watch urged United Nations Secretary-General Ban Ki-moon to take steps to ensure accountability through an independent international investigation into the alleged laws-of-war violations.

The announcement of a commission on "lessons learnt and reconciliation" came after a months-long campaign by the Sri Lankan government to prevent Ban from establishing a panel of experts to advise him on accountability in Sri Lanka. In May 2009, after the war ended, President Mahinda Rajapaksa signed a joint communiqué with Ban promising that "the government will take measures to address allegations related to violations of international humanitarian and human-rights law." But no substantive steps have been taken.

"Every time the international community raises the issue of accountability, Sri Lanka establishes a commission that takes a long time to achieve nothing," said Brad Adams, Asia director at Human Rights Watch. "Ban should put an end to this game of smoke and mirrors and begin a process that would ensure justice for all the victims of Sri Lanka's war."

The government has yet to publish the findings from a committee established in November 2009 to examine allegations of laws-of-war violations, despite an April 2010 deadline. When the committee was announced, Human Rights Watch warned that it was just a smokescreen to avoid accountability.

According to conservative UN estimates, 7,000 civilians were killed and more than 13,000 injured from January to May, 2009. Other estimates suggest that as many as 20,000 were killed. Government officials, including the president, have repeatedly insisted that no violations by government forces took place, and the government has taken no meaningful steps to ensure accountability.

On May 6, 2010, the Sri Lankan government announced that it will establish a commission to report on the lessons learned from the conflict and reconciliation efforts. In a statement posted on the government's website, the government announced that "there will be the [sic] search for any violations of internationally accepted norms of conduct in such conflict situations, and the circumstances that may have led to such actions, and identify any persons or groups responsible for such acts." The statement said nothing about holding such persons accountable under Sri Lankan criminal law or what other steps would be taken against those found to have been acting in violation of Sri Lankan or international law.

According to the government statement, the committee will consist of seven Sri Lankans, located in Sri Lanka and abroad, but will have no international involvement.

"Genuine government efforts with broad participation to promote reconciliation should be supported," Adams said. "But this cannot succeed without genuine and good faith efforts at accountability."

Sri Lanka has a long history of establishing ad hoc commissions to deflect international criticism over its poor human rights record and widespread impunity, Human Rights Watch said. Since independence in 1948, Sri Lanka has established at least 10 such commissions, none of which have produced any significant results.

The Presidential Commission of Inquiry appointed in November 2006 to investigate serious cases of alleged human rights abuses by both sides was a complete failure. A group of international experts, appointed to ensure the investigation was being conducted according to international norms and standards, resigned in 2008 because it had "not been able to conclude...that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards."

In June 2009, Rajapaksa dissolved the Presidential Commission of Inquiry, even though it had conducted investigations in just 7 of its 16 mandated major human rights cases. The president has not published its report.

This week's announcement of a new commission came after weeks of attempts by the Sri Lankan government to prevent Ban from establishing a panel of experts. After Ban informed Rajapaksa on March 5 that the secretary-general intended to establish an expert panel to advise him on accountability in Sri Lanka, the Sri Lankan government fiercely protested the decision, denouncing it as "uncalled for" and "unwarranted."

Ban has yet to appoint any members to the panel or announce its terms of reference.

"Secretary-General Ban should not let Sri Lanka bully and manipulate him into abandoning justice for Sri Lanka's war victims," Adams said. "It is time for him to demonstrate that he is squarely on the side of the victims of Sri Lanka's long war."