by Consultation Task Force, Sri Lanka, November 17, 2016
CTF-Final-Report-Volume-I-Nov-16
As the Secretariat for Coordinating Reconciliation Mechanisms no longer has a website and our link to this report of the Consultation Task Force at Consultation Task Force Final Report – Ilankai Tamil Sangam no longer works, we are posting the PDF here.
EXECUTIVE SUMMARY
A. Establishment of the Task Force and Methodology of Consultations
1. The Consultation Task Force (CTF) of 11 members drawn from civil society was appointed by the Prime Minister in late January 2016, to seek the views and comments of the public on the proposed mechanisms for transitional justice and reconciliation, as per the October 2015 UN Human Rights Council resolution on Sri Lanka, co-sponsored by the Government of Sri Lanka. The consultations were not restricted to these mechanisms and encompassed discussion of other mechanisms and processes for reconciliation the public wished to propose.
2. The Final Report of the consultation is organised according to the proposed four
mechanisms and overarching issues such as psychosocial support and State and societal reform
pertaining to transitional justice and reconciliation, with each meriting a chapter of its own. The
other chapters include an introduction laying out the context of the consultations and enduring
factors that would impact reconciliation into the future as well as a chapter on the methodology of
the consultations. The chapters on the mechanisms are based on the views expressed by the public
in the consultation process and contain both observations of the public as well as explicit
recommendations in respect of each mechanism—the Office on Missing Persons (OMP), Office of
Reparations, a Truth, Justice, Reconciliation and Non-Recurrence Commissions (TJRNRC) and
a Judicial Mechanism comprising of a Special Court and Office of a Special Counsel. The
concluding chapter is devoted to the recommendations of the CTF, which are informed by the
views and opinions expressed by the general public and stakeholders at the consultations.
3. The CTF was supported by two advisory panels—one of Representatives and the other of
Experts. The latter advised the CTF on the substantive content of transitional justice in the
consultations, its particular application and relevance to Sri Lanka and the former on the selection
of members of the Zonal Task Forces (ZTFs). However, there was significant overlap in their
contributions. The ZTFs—one ZTF in each district of the Northern and Eastern Provinces and
one each for the other seven provinces—were tasked with conducting the consultations through
public meetings and focus group discussions (FGDs) on the premise that people would trust and
feel more comfortable expressing their opinions to those from their community and area and in
the language of their choice. The ZTF reports based on consultations are compiled as a separate
report. They were sent to the CTF for collation and categorisation according to key issue areas
and the four mechanisms proposed. The ZTFs were drawn from civil society, the professions,
former public servants and in some instances, members of the clergy. In addition to ensuring
ethnic and sectoral representation as well as language proficiency as per each zone, there was 50%
female representation on the ZTFs. The innovation of ZTFs, their composition and approach, VIII
were greatly appreciated at the community level and constituted a key factor in ensuring the
success of consultations island-wide.
4. At the request of the CTF, there was a representative of the Human Rights Commission
(HRC) present at the consultations and HRC involvement to ensure follow-up action on incidents
at the consultations, which undermined the enabling environment for reconciliation.
5. In addition to the ZTF consultations, the CTF had consultations at the national level with
representatives of key sectors—the military, families of the disappeared, lay religious, professional
and media organisations, women’s groups, individuals and organisations engaged in the creative
arts. Submissions were also received through a dedicated website, by e-mail and by post in all three
languages.
6. The CTF received a total of 7,306 submissions of which 4,872 were made at public meetings,
1386 were at focus group discussions (FGDs) and 1048 were sent in to the CTF as written
submissions. The highest numbers of submissions were made at the consultations in Batticaloa,
Ampara and the Southern Province respectively, averaging in excess of 500 in each zone.
Consultations in the North Western and Western Provinces recorded the lowest number of
submissions—below 250. The figures for Jaffna and the North Central Province are based on
estimates as opposed to a written record in other zones.
B. Overarching Issues: Observations and Recommendations
1. The CTF hoped and argued for advocacy and championship at the highest levels of
Government of the rationale for transitional justice in Sri Lanka and the mechanisms proposed by IX
the Government. This however did not materialise and the predominant focus of the consultations
at the community level was on the narratives and experiences of people in their search for loved
ones and in seeking redress for grievances, including through appearances and submissions before
a number of Presidential Commissions of Inquiry and Investigation in the past. Nevertheless,
awareness-raising by the ZTFs and media had some effect in focusing consultations on the four
main mechanisms and in eliciting other suggestions related to transitional justice. Consequently,
though submissions directly on the more technical aspects of design, process of appointment,
powers and functions of the four mechanisms were limited, a high level of public interest, debate
and participation at the hearings was generated and views on key issues ascertained. Marking a first
step in ensuring participation and public ownership of the overall process, some individuals
expressed amazement at being asked for their views. In light of the above, the CTF recommends
continuing communication and outreach on transitional justice by the Government and at the
highest levels with the public at large.
2. People throughout the country expressed considerable frustration, bitterness and anger at yet
another initiative, despite the inconclusive nature and abysmal failure of past efforts to provide any
relief or redress. This though was coupled with an expectation and yearning that this particular
initiative of consultations on transitional justice mechanisms would be different. This duality in
public attitudes was strongly expressed in the consultations and must inform policy-making in the
design of mechanisms for transitional justice and reconciliation. The CTF recommends that, given
the desire for the truth, accountability of those who gave orders and the strength of feeling against
recurrence, there should be constitutional recognition and provision of the right to transitional
justice defined in terms of truth, justice and accountability, reparations and guarantees of nonrecurrence.
3. It should also be noted that there were submissions, including from the security forces and
Police, warning that this process of reconciliation would be counter-productive, compromise
national security, deepen wounds and open new ones as well as exacerbate inter-ethnic and
religious division. All Security Forces personnel categorically rejected international involvement
in the accountability mechanism in particular. However, in most submissions made by the Security
Forces and Police, there was unequivocal support for the Government’s reconciliation initiatives
and for a restorative as opposed to retributive approach, with a call by them for the involvement of
religious leaders to enhance the former. They were of the view that reconciliation and reparations
should be given priority to ensure non-recurrence, urged constitutional reform and requested
greater information sharing by the government with their personnel at all levels, to dispel doubts
and misinformation.
4. The Army representatives also stated that although they had achieved the Government’s
objective under its political direction and in difficult and challenging circumstances, they felt a lack
of solidarity and support at present. They stated their support for a truth seeking process and if X
there is any evidence of criminal activity, for the prosecution of the guilty. Given that as far as they
were concerned, no criminal activity had been undertaken, they saw no need for amnesty either.
Whilst they insisted that civilians were not deliberately targeted and that a policy of zero-civilian
casualties was followed, they conceded the possibility of civilian deaths on account of civilians
being caught in the crossfire. They also denied that sexual violence was used as a weapon of war.
The Air Force reiterated that no crimes were committed and no illegal weapons used.
5. In light of the deficit of trust and confidence in the Government’s commitment to
transitional justice and reconciliation and the reservations expressed with regard to the process of
transitional justice and reconciliation, the CTF strongly urges that in addition to 1 above, the vision
of a plural, multi-ethnic and religious Sri Lanka in which diversity is recognised as a source of
strength and as an asset and in which citizenship is founded on the mutual respect and dignity of
all the peoples of Sri Lanka, be propagated and celebrated throughout the country by the highest
levels of Government and by civil society. Unity in diversity, respect for and protection of the
multiple identities of all Sri Lankans, is fundamental to meaningful reconciliation, peace and
prosperity in the country.
6. Accordingly, effective, unequivocal action must be taken by Government to prevent the
spread of ethnic division and religious intolerance and to hold to account those responsible under
the due process of law, without fear or favour in respect of any community however defined. Some
submissions from across the country called for the establishment of a secular State with equal respect
accorded to all the religions practiced in the country. They posited this as integral to the sense of
equal citizenship and as the starting point for reconciliation. The CTF recommends serious
consideration of this in consultation with all stakeholders.
7. Security considerations were at the forefront of the consultations from the very outset. Given
the surveillance, questioning and intimidating presence of security, intelligence and Police
personnel at hearings of past commissions, the CTF spoke with the Ministry of Defence, service
commanders and Police to ensure that an enabling environment would prevail for the duration of
consultations and thereafter. Police and military liaison officers were identified and Presidential
Directives on Arrest, Detention and Torture reiterated. Despite these measures, there were a
number of incidents. CTF members had to personally intervene at some ZTF meetings to ask
security/police personnel inhibiting participation at the consultations to leave. The persistence of
impunity at the ground level, despite measures agreed upon with the highest levels of the security
forces and Police to stop them, is confirmed by these incidents.
8. The persistence of impunity was identified in submissions as a key impediment to
reconciliation and in turn, an end to it as a key confidence–building measure that should precede
the establishment of mechanisms and thereby bridge the considerable deficit of trust and
confidence that prevails in the willingness and ability of the Government to achieve meaningful XI
reconciliation. The issue of credible Witness and Victim Protection is closely connected to the
persistence of impunity, public safety and security and the CTF in its recommendations reinforces
local and international calls for robust and independent protection.
9. A number of other confidence building measures that deal specifically with military and
security issues were identified in the consultations. They are included in the CTF’s
recommendations. These relate to the cessation of military involvement in civilian affairs, in the
economy and civil administration in particular, expedited return of civilian lands acquired by the
forces, demobilisation and demilitarisation. There are also unequivocal demands for the release of
detainees and surrendees who have not been charged under the PTA or other laws, the repeal of
the PTA, the publication of the list of detainees and of all places of detention.
10. A key confidence-building measure highlighted in consultations is the pivotal need for a
political and constitutional settlement of the conflict. Submissions stressed that this was an essential
prerequisite for reconciliation and a united country. The CTF has noted this accordingly in its
recommendations.
11. The criminalisation and incorporation into Sri Lankan law of international crimes such as
war crimes and crimes against humanity as well as the crime of disappearances in line with the
definition of the crime under the International Convention for the Protection of All Persons from
Enforced Disappearance, were also highlighted as key confidence-building measures. They are
included in the CTF recommendations.
12. Yet another overarching consideration that comes out of the consultation process is the need
for psychosocial considerations to be factored into the design and operations of transitional justice
mechanisms, in particular, restorative psychosocial support and assistance to those affected, be they
civilians or combatants across all ethnic divides. The CTF in its recommendations emphasises the
primacy of the needs and concerns of those affected, the strengthening and sustenance of existing
services in line with the requirements of transitional justice and reconciliation and in cooperation
with the Psychosocial Task Force of the Office of National Unity and Reconciliation (ONUR).
13. Whilst this report does not devote separate chapters to Youth and Gender, it treats them as
overarching issues that have a significant bearing on all mechanisms and indeed, any reform and
reconciliation programme. Throughout the consultations, participants emphasised the critical
importance of balanced gender and youth representation on the mechanisms, in particular the
appointment of women at all levels of operation, especially as decision makers, prosecutors and
judges. They stressed easy access to the mechanisms and the incorporation of gender requirements
into the functioning of the mechanisms including the provision of space, guarantees of
confidentiality, sensitivity towards and respect of the needs of those subjected to sexual harassment XII
and abuse, and that of mothers who will engage with the mechanisms. The CTF endorses these
concerns and supports the long-standing demand for a National Commission on Women.
14. Land is another overarching issue, central to reconciliation, which came up in multiple
submissions, including cases of occupation by the military and other state agencies such as the
Forrest Department, and secondary occupation of lands and fishing waters by members of other
ethnic communities. It merits specific policy action, including mechanism/s that can address
complex inter-ethnic land disputes without delay. The CTF also recommends implementation of
the existing constitutional provision for a National Land Commission.
15. The continuing need for highest-level governmental advocacy and championship of
transitional justice highlighted in the consultations is prioritised in the CTF recommendations, as
well as the coherence of the entire transitional justice and reconciliation policy. Therefore, the
crucial requirement that the Government simultaneously spell out a road map for reconciliation
along with the policy and operational frameworks for the mechanisms envisaged, their
relationships to each other as well as to existing bodies tasked with reconciliation including
Government ministries, is singled out for immediate, urgent attention.
16. The importance of ensuring the accessibility of the mechanisms in terms of their location,
working languages and composition was also stressed in the consultations; likewise, the needs of
the differently abled and marginalised. The public was insistent on the representation of those
affected at all levels of all proposed mechanisms where feasible, and on the use of appropriate and
non-distorting language for transitional justice mechanisms and instruments such as the Certificate
of Absence (CoA). The CTF endorses these demands and in addition, recommends an overall
monitoring body of the mechanisms with representation from affected families, human rights
defenders, civil society activists and the international community appointed by the President from
a list of nominations submitted by the Constitutional Council. The monitoring body should report
to the President and its reports made public.
C. Recommendations on the Mechanisms
1. Whilst the consultations were ongoing the Government presented a bill to Parliament on
an OMP, which was eventually passed after a considerable disruption in the chamber. Not
surprisingly, there was criticism of the Government on this and doubts raised as to the seriousness
of the Government’s regard for the CTF and its consultations. The CTF issued an Interim Report
on the OMP, which is annexed to this Final Report.
2. A number of submissions however, were made on the issue of disappearances and the OMP,
prior to and after the passage of the Bill. They formed the bulk of submissions in some public
meetings, particularly in the North and East. This may be attributable to the salience of the issue XIII
over three decades, the sense of urgency among family members that something can and must be
done to locate missing members of their families, the public discussion of the OMP Bill, types of
disappearance and the organisation of families around the issue. The key demands were with
regard to highlighting the enforced and involuntary nature of disappearance in the title of the
office, limiting the discretion of the OMP over sharing of information with prosecutorial
authorities, accessibility of the offices, language, representation, involvement of families of the
disappeared in the OMP and protection of those affected. For some family members of the
disappeared, discussions on justice and reparations were considered too premature or even
dangerous. The urgent task, as they saw it, was to immediately ascertain whether disappeared
persons from both the war and the Southern insurrection were still in detention, either in Sri Lanka
or abroad.
3. Reparations were understood in a myriad of different ways but with strong
acknowledgement and solidarity across ethnic and religious lines for the loss and suffering of
communities. At the heart of all calls for reparations is a call for justice, a feeling that wrongs that
have been committed against individuals or communities need to be corrected, through redress,
repair and restitution. As such, the purpose of reparations was articulated in terms of the
accountability of the State for wrongs it had done to citizens and/or the recognition and
acknowledgement of their suffering. Further, there was a clear articulation of justice as a form of
reparation, or in some instances as the only form of reparation requested. Particularly among those
who had suffered killings and disappearances during the 1980s as a result of the war or Southern
insurrection and who continue the struggle to cope with the multiple consequences of losing a
family member, there was a sense that all that could be expected from the State was some form of
compensation to alleviate their suffering. There were submissions from across the country that
also posited the provision of justice as both a sufficient and desirable reparation.
4. Suffering was articulated not only in terms of war related violations and ethnicity, but also
structural violence and marginalisation of certain communities based on class as well as the
Malaiyaha Tamils and Indigenous Communities. Violation of peoples’ socio-economic rights
including through land grabs and forcible relocations, was also a recurrent theme across the island.
This included urban communities whose land had been taken for development projects and
indigenous communities, who raised the issue of the erosion of the right to the commons.
5. Submissions also revealed both a reluctance and fear of reparations, on the grounds that
development of the country as a whole had rendered them redundant and that reparations—
primarily in the form of compensation—would thwart justice and accountability processes or be
provided as an alternative to them. This fear was expressed largely in the North and East,
particularly by families of the disappeared.XIV
6. Very few submissions noted the need for a separate Office for Reparations. Requests for
reparations though, could be categorised as either individual or collective and ranged from the
material and financial to the symbolic. Guidelines to be followed in the provision of reparations
were also identified in submissions. These included a clear and transparent policy on reparations,
an approach to reparations centred on those directly affected and one that provided reparations in
an equitable manner with the inclusion and active participation of those affected in the design of
programmes.
7. Financial reparations were suggested for different types of losses and groups of victims and
survivors as set out below:
a) Reparations for loss of a family member and/or a breadwinner,
b)Reparations for material/non-material costs incurred looking for those disappeared/missing,
c) Reparations for physical violence and injury, including sexual violence and disability,
d)Reparations for displacement, both internal and external, including restoration of voting
rights,
e) Reparations for loss of property and assets,
f) Reparations for psychosocial impact and trauma,
g)Reparations for loss of traditional/indigenous ways of life.
There were also calls for interim reparations to meet immediate needs—employment for vulnerable
members of families of the killed or disappeared and for one–off reparation in kind, in the form of
educational scholarships for their children.
8. There were a significant number of submissions that raised the need for symbolic reparations
in the form of events and spaces for memorialisation, official acknowledgment and apologies.
9. A number of submissions lay significant emphasis on the need for memorialisation to be a
process including citizens at all stages. These submissions also noted that monuments—the most
popular form of memorialisation—needed to be sensitively designed respecting the multiple
narratives of grief, be non-partisan, not be considered the only symbols of memory or risk the revictimisation of certain groups. Alternative spaces such as libraries and museums where people
could actively engage in reflection and learning were also proposed. Submissions also noted that
spaces to remember did not necessarily entail monuments. One submission for instance noted that
women in Mullivaikkal wanted living memorial spaces filled with trees, birds and water ways as
healing and calm spaces.
10. There was considerable divergence in views between the Sinhala and Tamil communities
on existing monuments in the North. While Sinhala submissions spoke of these monuments as
symbols of pride, of victory achieved by soldiers and also as spaces for remembrance, Tamils felt
these monuments were intended to remind them that they as a people had been defeated. They XV
noted the grief they felt when passing by, particularly as the victory that these monuments
celebrated was won at the cost of a number of innocent lives.
11. In addition to the debate on existing monuments, there were a number of calls from across
the country for new monuments, including for lives lost in particular through incidents such as
massacres to those symbolising disappearances. One submission noted the need to reconstruct the
monument for civilian lives lost during the Southern Insurrection that was destroyed in Diyawanna
in the post-war period.
12. The right to grieve both publicly and privately was also raised. In the North and East in
particular, the destruction of LTTE cemeteries, the grief it had caused and the need to preserve the
sanctity of the dead was raised frequently. Many families, particularly of former LTTE cadres, felt
they lacked the freedom to grieve even in private due to threats and intimidation. Observance of
“Maaveerar Dinam” (Commemoration Day for fallen LTTE cadres), was raised in the North as a
practice of grieving for family members that should be allowed to continue. Family members,
particularly mothers of deceased LTTE cadre, also expressed the desire to be able to hang a
photograph of their son in LTTE uniform, in the privacy of their homes. The CTF recommends
the restoration of burial plots to family members and the removal of all buildings subsequently
erected on them.
13. A number of days were suggested by different communities as days for commemorating
lives lost or for wrongs committed against them.
14. In terms of linkages with other mechanisms, many did not see reparations as separate from
the other processes. Many felt that reparations should be part of the other processes, particularly
that of truth and justice. Specific linkages are apparent in the call for reparations in the form of
documenting and archiving histories—both personal and collective.
15. The CTF received a significant number of submissions on the value of truth seeking/telling
and on the objectives of the proposed Truth, Justice, Reconciliation and Non-recurrence
Commission (TJRNRC). Whilst a number of objectives were identified, a majority of submissions
state that the TJRNRC must:
a) establish the truth,
b)determine the root causes of conflict,
c) hold perpetrators of violations to account,
d)achieve equal rights,
e) build multiple narratives of history,
f) make recommendations for non-recurrence and enable victims to seek redress for violations
and abuses. XVI
Given the failure of previous commissions and a history of inaction, submissions insist that the
approach to truth seeking must be fundamentally different to past efforts. They emphasised that
the TJRNRC, therefore, must build on existing work, implement the recommendations of
previous commissions and follow through with concrete action.
16. Many submissions advocated an inclusive approach, recommending a broad time-frame
allowing for greater inclusion of affected individuals, groups and communities. Submissions
referred to the armed conflicts and periods of violence, namely that between the LTTE and the
GOSL (1983-2009), the youth insurrection and political violence between the JVP and the GOSL
(1971 and 1987-89), the anti-Tamil pogrom (1983), violence and discrimination against minority
religions (primarily post-war), and other violence involving the State.
17. Many submissions wanted the mandate of the proposed Commission to be clearly defined
and differentiated to that of previous Presidential Commissions of Inquiry. They saw the TJRNRC
as having a comprehensive investigatory role in establishing the truth as well as one of referring
cases of criminal acts to a prosecutorial body. At the same time there were submissions that saw
amnesty as an incentive for coming forward with the truth and those, which favoured a
compassionate approach to amnesty at lower levels of command responsibility in consultation with
victims. Others were flatly opposed to amnesty under any circumstance. The CTF notes that there
should not be amnesties for war crimes and crimes against humanity, as well as gross human rights
abuses including torture, enforced disappearances and rape.
18. Submissions recommended that the Commission recognise and address past violations such
as discriminatory State policies with the power to rectify them. The TJRNRC’s link to other
reconciliation mechanisms was also commonly recognised, particularly to the Judicial Mechanism
and the Office on Reparations. One submission stated that the TJRNRC should not complement
the Special Court, but should only focus on reconciliation and non-recurrence as opposed to truth
and justice.
19. Particular emphasis was placed on the awareness raising, outreach and communications
functions of the TJRNRC, pointing to the importance of involving media personnel and artists in
the dissemination of information. Submissions called for the information received by the
Commission and its final report to be made widely available to the public in all three languages.
Submissions also recognised the importance of documenting and archiving the information,
primarily for posterity as an inclusive historical narrative for non-recurrence, to promote
reconciliation and for the practical purposes of assisting victims. The CTF endorses the above and
also recommends that the findings of the TJRNRC are included in national educational curriculum
reform and school text-books.XVII
20. Submissions called for public hearings for select groups of the affected, with the option of
giving testimonies in private being made available to others. Receiving complaints and imposing
penalties was also seen as an important function, as was reporting. Those submissions that
commented on the tenure of the Commission, stated that it must conclude its work within a short
period of time, with some recommending a period of two years. The CTF recommends that the
tenure of the Commission be determined by the volume of cases before it.
21. Some submissions comment on the structure of the TJRNRC and make suggestions about
ensuring access to the mechanism. These submissions prefer a decentralised structure and stress that
affected communities should be able to access the TJRNRC. It is also suggested that the mechanism
should actively seek information from affected communities by visiting villages around the
country. The operational independence of the TJRNRC and the allocation of sufficient funds to
enable it to fulfill its mandate without constraints, is also emphasised in submissions.
21. The CTF recommends that the TJRNRC should at the end of its term present a report to
Parliament, which in turn should be made public in all three languages. The TJRNC should also
release annual reports on its work according to the same procedure. It should conduct an effective
awareness raising and communication campaign involving a dedicated website and Outreach Unit,
thereby ensuring engagement with the public and media prior to, during and after the public
sittings.
22. The importance of justice was reiterated in submissions from all parts of the country and
expressed in various ways including as accountability for past crimes committed in the context of
the war and its aftermath, violation of group rights and acts of violence against ethnic and/or
religious groups, crimes committed during the southern insurrection, ‘everyday violence’ and as
recognition of the need to end impunity. It was also presented in terms of addressing the failures
of the existing judicial system, of providing political and economic solutions for collective rights
denied and violated, ensuring non-recurrence and laying the foundation for reconciliation. There
were others, mainly from the Sinhala community, who feared that justice might undermine
reconciliation and further polarise ethnic/religious communities. The overwhelming call for justice
from across the island, must be viewed in terms of the failure of the judicial system to deliver
redress, recognise violations, establish accountability and ensure the security of victims and
witnesses from reprisals. Accordingly, a Judicial Mechanism with a Special Court and Counsel,
which has also been reflected in reports of previous commissions of the State, is seen as a measure
that will restore confidence in the judicial process; in particular, independently and impartially
address past lapses and shortcomings and ensure accountability. There were submissions as well,
reiterating the importance of justice, which insisted that it could be achieved through a more
effective and reformed judicial system, rather than a special mechanism. XVIII
23. The need for independence, capacity, competence and transparency underpins the call for
international judges, prosecutors, investigators and other staff of the Judicial Mechanism. Whilst
an overwhelming majority of Tamils in the North and East call for international involvement,
most of them also reiterated the importance of having Tamil speakers on the mechanism. This
implicit yet effective endorsement of the hybrid model, is further strengthened by the argument
advanced that trust and confidence in the mechanism would be generated if it fully reflects the
multi-ethnic and religious character of Sri Lanka as well. The CTF also received submissions,
largely from the Sinhala community, rejecting any international involvement in what they viewed
as a purely domestic process. There were a few submissions that spoke to the more technical aspects,
including the ratio of national to international judges, and the need for a gradual transition from a
hybrid to a purely domestic mechanism.
24. The CTF recommends a hybrid Court with a majority of national judges as well as a
sufficient number of international judges. This will ensure at least one international judge per
bench and pre-empt delays due to the absence of one or more judges. It also recommends
international participation in the Office of the Special Counsel of prosecutors and investigators, in
addition to the provision of technical assistance. There should be clear guidelines and criteria spelt
out and made public in respect of all aspects of international participation. International
participation should be phased out once trust and confidence in domestic mechanisms are
established and when the required expertise and capacity has been built up, nationally.
25. The material jurisdiction of the Judicial Mechanism is to prosecute war crimes, crimes against
humanity and violation of customary international law. Particular crimes such a torture, sexual
violence, massacres, deliberate targeting of civilians including bombing of hospitals, denial of
medicine and food supplies, use of banned weapons, the disappearance of persons who surrendered
to armed actors, forcible expulsion of civilians, the use of civilians as human shields and the forcible
recruitment of children were specifically mentioned in submissions as crimes to be investigated.
The submissions on temporal jurisdiction, though not couched in technical terms, broadly suggest
that the Judicial Mechanism should not be limited to crimes committed during the war or to
specific periods within the war. Taking into account the range of submissions, the CTF
recommends that there should be no temporal limitation on the jurisdiction of the Special Court.
26. Whilst individual submissions made specific suggestions on the Office of the Special Counsel
including on the need for foreign personnel, its swift establishment and public outreach, the issue
of prosecutorial policy in terms of the scope of prosecutions by the Office of the Special Counsel,
selection and treatment of emblematic cases and the fate of remaining cases, was not sufficiently
addressed. The CTF recommends that the Office of the Special Counsel should be set up without
delay; its powers and functions and its relationship to other mechanisms clearly established and
made public. In the event that the Special Court is unable for reasons of practicality/time/resources, XIX
to prosecute all individual cases of violations, the prosecutorial policy must ensure that at a
minimum, those bearing the greatest responsibility for international crimes are held accountable.
27. Submissions identify a wide range of perpetrators including State or State supported actors,
irrespective of their rank and/or current position and the LTTE. The importance of command
responsibility is reiterated to ensure that those who ordered crimes and/or the most senior leaders
who may not themselves have directly perpetrated crimes, are covered by the mechanism. On the
prosecution of LTTE members, some submissions from the Tamil community take the position
that surviving LTTE cadres have been through rehabilitation or have been prosecuted under the
existing judicial system and should not be re-tried. According to these submissions, the focus
instead could be directed towards leaders of the LTTE who were allied to the Government during
or after the final phase of the war or LTTE leaders assumed to be living abroad. Similarly, there
were submissions from the Sinhala community expressing concern over the targeting of war
heroes. They maintained that some of the acts were committed in the exigencies of the war. There
were also submissions from all communities calling for justice to be served and for those responsible
to be held to account throughout the command structure, rank and file.
28. Submissions call for the incorporation of international humanitarian law and relevant rules
of evidence and procedure into the domestic system. They point to the need to introduce modes
of liability such as ordering, superior and command responsibility and joint criminal enterprise into
Sri Lankan law. Some technical submissions also address the collection, handling and storing of
evidence and the treatment of witness testimonies.
29. A few written submissions address the model and structure of the Court and propose a High
Court, akin to the Commercial High Court established by an Act of Parliament. Submissions state
that the Office of the Special Counsel should have a clear mandate, be independent and include
units for investigation, victim and witness protection, counselling and victim support, public
outreach and a special unit on disappearances. Submissions also recommend, a trial monitoring
body and a defence and legal unit. Accessibility in terms of location and language were key issues
raised by affected persons. There were recommendations that at a minimum, branches of the Court
should be located in the provinces and that victims and witnesses be allowed to access the Court in
the language of their choice.
30. Specific victim friendly rules of procedure and recommendations for the treatment of victims
and witnesses are also highlighted in submissions dealing with special categories of victims and
persons before Court, including victims of sexual violence, children and persons who are
differently abled or disabled. Some of the more technical submissions received on the Judicial
Mechanism, especially on the issue of sexual violence, highlight the failure of the judicial system
and call for the exercise of suo-moto powers of Court to take up past complaints that have not
been prosecuted to a conclusion. Submissions stress that procedures to address the specific needs XX
of victims and witnesses, to avoid re-traumatisation and ensure access to justice, must be a priority
for the judicial mechanism.
31. On the selection and appointment of judges, prosecutors and staff, submissions emphasise
the importance of an independent and rigorous process whereby each candidate is vetted for their
capacity, moral character and conflict of interest by an independent authority. There is no
consensus on whether judges, particularly international judges, should be appointed through a
purely domestic process or one with international participation. Several submissions from the
North stressed the importance of appointing judges and staff who have the trust and confidence of
the public/affected communities. The CTF recommends the setting out of criteria for the selection
of judges and the Special Counsel by the Constitutional Council in consultation with the Human
Rights Commission, professional bodies and civil society and in the case of international judges,
with the Office of the UN High Commissioner for Human Rights as well. The criteria should be
made public and the Constitutional Council should submit a list of names to the President for
appointment in respect of the Special Court and the Office of the Special Counsel.
32. While submissions made at public meetings reiterate the importance of the involvement of
affected communities in the Judicial Mechanism, some singled out the need for public hearings
and public broadcasting of hearings. In this respect, they saw the Judicial Mechanism as a public
tribunal where victims would also be involved in the dispensation of justice. Other submissions
discussed the role of affected communities in the Judicial Mechanism mainly in terms of standing—
of the right to access the Court—representation on the Court and the need to pay attention to
security, psychosocial and gender concerns.
33. Measures must be put in place within the ordinary judicial system to ensure prosecution of
human rights violations and cases, which are not taken up by the Special Court. This entails
systemic reform and structural change at every level including the judiciary, Attorney General’s
Department, Judicial Medical Officers, Police and a robust Victim and Witness Protection Unit.
The call for reforms was made in some written submissions and at sectoral meetings. Whilst at
public meetings, the number of challenges faced by those seeking redress and protection in a
variety of contexts of armed conflict, religious violence and in ‘every-day’ law and order were
highlighted. In this regard, a number of recommendations are highlighted in the CTF’s Final
Report.
34. The CTF was open to suggestions for mechanisms other than the four proposed by the
Government. In calling for separate mechanisms to address issues such as displacement, land,
women and justice, and religious tensions, organisations and individuals were further highlighting
the shortcomings of existing systems and the need for urgent action in respect of these issues.XXI
35. The CTF recommends the establishment of a Minority Rights Commission to address issues
of concern to minority communities. This Commission should be appointed by the President
from a list of nominees submitted by the Constitutional Council and drawn from civil society. It
should present an annual report to Parliament on the situation of minorities in the country, which
could include suggestions for legislative reform.
36. A number of submissions were received on religious violence, with some stressing the need
for justice and others suggesting measures that would be both preventive and responsive, including
a separate mechanism. The CTF recommends that the Inter-Religious Advisory Group reportedly
established by the President in February 2016, should be tasked with providing early warnings and
mediation of potential religious tension and violence and the monitoring of incidents of religious
violence, without prejudice to the rights of those affected in such incidents of seeking redress
through the established procedures of law and order and justice.
37. Specific recommendations have been made with regard to demilitarisation and to the
reintegration of ex-combatants into society. While current military personnel and disabled
servicemen raised their concerns with the transitional justice process and made suggestions,
including on the need for persons associated with the military to serve on these mechanisms,
families of military personnel and of police officers killed or missing in action, pointed to disparities
in pensions, compensation and the selection of beneficiaries. Ex-combatants associated with the
LTTE made submissions on the four mechanisms and also raised concerns about their current
situation, the failure of the rehabilitation programme and their reintegration into society. In
addition to pointing to the impact of continuing surveillance by the military, intelligence and
police in heightening insecurity and stigmatisation, they also pointed to limited economic
opportunities. For some, their marginalisation within the community resulted not only because of
their identification by the State as ex-combatants, but also on account of how they were perceived
by the community. For all ex-combatants the issue of prestige and the lack of societal respect for
what they had sacrificed, was a concern.
38. Not surprisingly, the vast majority of recommendations made in submissions focused on the
State. A small number of submissions focused on societal changes required for transitional justice,
with many of these being made in sectoral meetings with the media and artists. There were some
submissions that called for introspection and self -criticism followed by corrective action, by
specific sectors of society.