Observations by the UN Special Rapporteur on Transitional Justice

GENEVA (10 February 2016) – I am grateful to the Government of Sri Lanka for a second invitation to undertake an advisory visit to the country (26 January to 1 February 2016) and for the excellent collaboration in the course of the visit.  On this occasion I met with high Government officials both in Colombo and in Jaffna, with religious leaders and a wide variety of representatives of civil society organizations and victims groups, and the diplomatic community.  The most important interlocutor during this visit, and in a sense, the main motivation for doing it at this time, was the Task Force that has been established in order to carry out the national consultations on transitional justice.  I am grateful to everyone that spent time with me.  Without the support of the Office of the United Nations in Sri Lanka, the Office of the High Commissioner of Human Rights and the United Nations Peacebuilding Support Office this trip would not have been possible.  I thank them for their contribution to this visit.

National Consultations

The international community –this mandate included—had insisted on the importance of carrying out national consultations, in the conviction that redressing massive human rights violations is best done with the participation of those whose rights were violated in the first place.  Consulting victims is crucial for several reasons: it constitutes in itself a mode of recognition and respect; people whose rights were violated, often in the most brutal ways, will be listened to respectfully and their views taken seriously as to the most effective ways of redressing those violations.  Consulting victims is also a means of trying to guarantee a close fit between the programmes to be established and the needs and expectations of their beneficiaries; it is a way of eliciting information about topics and issues that may not be apparent; symbolically, it is another way of reaffirming the inclusive nature of society, the reintegration of victims into the community of citizens, and a way to signal to others the currency of the notion of equal rights.

It is therefore gratifying to see that a Task Force has been established in order to design and implement a national consultation on issues having to do with truth, justice, reparation, and guarantees of non-recurrence, which are matters of legal obligation, and which were the object of commitments voluntarily undertaken by Sri Lanka when it co-sponsored a resolution on this topic at the Human Rights Council in Geneva in September 2014.

Furthermore, it is particularly gratifying that the Government has decided to establish a task force made up entirely of representatives of civil society with a long trajectory in the defense of human rights.  While in choosing to appoint such a task force the Government is making a bet in favour of the importance of the independence and objectivity of the consultations, the risks being taken by those who have accepted this appointment must also be appreciated.  Everyone’s credibility is at stake here.  For the sake of the integrity of the exercise, but fundamentally, for the sake of the effectiveness of victims’ redress, and as a consequence, for what it would say about the robustness and the seriousness of the idea of equal rights for all, of a shared sense of citizenship in Sri Lanka, this exercise must be made to work.

A difficult context

The task force is starting its deliberations, however, against a background that is far from ideal; statements by the President of Sri Lanka, the Prime Minister, as well as several ministers, seemed to call into question the willingness to abide by commitments undertaken by Sri Lanka. Comments by high level Government officials about the fate of the disappeared also created consternation amongst family members of victims.  The paucity of information made public by the Government about the task force, its mandate, and the role of national consultations within an overall strategy for the adoption and the implementation of a transitional justice policy, creates uncertainty about the determination of the Government and about whether its different members are of one mind concerning this important issue.

A second feature of the background against which these discussions are taking place is a high degree of political polarization.  I take the opportunity to offer a few reminders: the extraordinarily complex nature of Sri Lankan history means that there is no community which at some point or another has not had some of its members involved in human rights violations or abuses that call for redress.  Transitional justice in this context is not a matter of offering redress for the violations of the rights of only one side of what has been in effect a many-sided conflict.  The instrumentalization of transitional justice measures for narrow partisan political purposes undermines the legitimacy of one of the few means available for the reintegration of societies in the aftermath of mass violations and abuses.  Transitional justice measures must operate on the basis of the concept of human rights and therefore truth, justice, reparation, and guarantees of non-recurrence, as matters of right, must be accessible in virtue of having been a victim of a relevant right violation or abuse, independently of other considerations, including identity, group membership, or religion.  Sri Lanka needs to avail itself of every possible means of demonstrating to all its citizens that the equality of rights is a meaningful notion in the country.  Those who approach questions of truth, justice, reparations, and guarantees of non-recurrence as if they were the subject of a zero sum game, a matter of interest to one community alone, do a great disservice to the country.  This includes some politicians, members of the media, and even some religious leaders, who speak as if the measures will either target or benefit one group alone.  So let us be clear: criminal accountability should be sought for those responsible for massive or systematic violations or abuse regardless of identity considerations; the truth that is sought is the comprehensive, even-handed account that objectively and dispassionately attempts to understand the violations or the abuses committed by members of whichever community or group may have engaged in that practice; reparations programmes should be established in order to provide benefits for people, independently of their group identity, however that may be defined, solely in virtue of having been a victim of a violation or an abuse; and finally, initiatives should be set in place in order to offer guarantees of non-recurrence not to the member of one particular community, but to all.

Against this background the country proposes to start a national consultation process that will require a great deal of attention and support; it will be taking place under circumstances in which many victims in the North, particularly, and especially women, claim that they are still the subject of intrusive surveillance, and that their concerns about security are not completely assuaged.  Furthermore, the consultations will take place without previous concerted efforts to inform the population about what transitional justice is.  For the consultation to have legitimacy it will be indispensable for the Government, from the highest levels on down, to convey to all sectors of society, the armed and security forces included, its commitment to and the significance of the process, and to guarantee that the consultations will proceed not only without interference from but with the support of all sectors of the state and the Government.

Because national consultations do not lead to actionable blueprints, even less when there is so little pre-existing familiarity on the part of the general population with the instruments of transitional justice –among other reasons—it will be important to think about, AND DESIGN consultations not just as a one-off opportunity, but in terms of ongoing processes; whatever measures are implemented, those will also call for established means of communicating with and proving responsive to civil society, victims in particular.

A capacity gap

The fact that consultations will not lead to actionable blueprints also means that there is a certain degree of capacity building about the topic within the Government that ought to be taking place (it also involves that the consultations should not be used as an excuse for lack of action on some fronts).  While the commitment on the part of certain individuals and sectors of Government is plain to see, and plans for sign-off and deliberation mechanisms within the cabinet have been made, the articulation of even the outlines of a comprehensive transitional justice policy requires more capacities than have been available up to now.  Building up these capacities is essential so that the debate can move promptly from considerations about the desirability of establishing transitional justice measures in general, to a debate about at least the contours of concrete alternatives to be finally shaped with the inputs of the consultation process.

Insisting again on a comprehensive policy

While it is understood that in some ways it is still early in the process of articulating a comprehensive transitional justice policy, the Special Rapporteur would like to offer a cautionary note about a certain lopsidedness in the discussions heretofore; most of the discussions in Sri Lanka in the recent past have concentrated on the establishment of an accountability procedure, and indeed, on a narrow dimension of such procedure, namely, the nationality of the judges.  This issue should have been approached from the standpoint of the technical competencies that are necessary to make a special accountability mechanism dedicated to mass crimes, perform its functions well (in addition to crucial considerations of impartiality and independence).  These skills are typically not widely available in countries that have not gone through the corresponding judicial procedures, for they do not form part of the ordinary training of lawyers, but rather specialized skills that have slowly developed over time.  The discussion about the nationality of the judges, however, has displaced a discussion about the skill set that the investigation and the prosecution of these cases will require a similarly specialized set of competencies.

The narrow focus on (one aspect of) the accountability mechanism has also displaced attention from the other components of a comprehensive transitional justice policy, namely, truth, reparations, and guarantees of non-recurrence.  Each of them requires deliberate planning on its own, but also in relationship to one another.  The fact that these measures will be expected to respond to a wide variety of violations, committed by all sides, not just during the end of the conflict but rather during a more extended period of time, and that therefore the universe of potential beneficiaries is both large and heterogeneous only increases the need not to allow the planning for these mechanisms to lag behind.  Similarly, thought also needs to be given to how a transitional justice policy intersects with other on-going initiatives, not the least the constitutional reform project, for clearly there are some important overlaps, especially in the areas of guarantees of non-recurrence, around issues such as the independence of the judiciary, the definition of the role of the different parts of the security services and the jurisdiction of military courts, the constraints on anti-terrorist legislation, and topics as foundational as a bill of rights for all Sri Lankans.

There is no country that can accomplish all of this in a short period of time.  Sri Lanka has embarked on an ambitious process that should not be prepared, let alone implemented, in haste.  The time line that the task force on consultation has received suggests that there may be some unrealistic expectations about what is involved in settling complex issues in a difficult environment, in which programmes on novel areas is being considered for the first time.  Those that are familiar with transitional processes in different parts of the world understand the challenges and do not expect Sri Lanka to adopt measures simply for the sake of demonstrating compliance with commitments that the country has made.  What is expected is, on the one hand, for the Government to pay immediate attention to certain issues on which it can certainly act without delay (for example, on the issue of the missing, on the prompt adoption of victim assistance programmes including psycho-social support, the lingering issue of land occupied by the armed forces, to name a few), and on the other, to engage in credible processes leading to the establishment of strong institutions capable of delivering in a sustainable way robust results over time in the areas of truth, justice, reparation, and guarantees of non-recurrence.

The Special Rapporteur reaffirms his conviction that this is a historic opportunity for Sri Lanka to address past issues that nevertheless impose significant burdens on the present and the future.  Addressing them correctly, while challenging, will also open crucial opportunities for the members of all communities.

Pablo de Greiff (Colombia) was appointed by the UN Human Rights Council as the first Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence in 2012. He has extensive professional and academic expertise on transitional justice issues, including on the four measures under this mandate (justice, truth, reparations, and guarantees on non-recurrence). Mr. de Greiff has worked with different transitional justice bodies across the world and has provided advice to a number of Governments and multilateral institutions on international policy, transitional justice, and on the linkages between justice, security and development. He was the Director of Research at the International Center for Transitional Justice from 2001 to 2014. As of June 2015, Mr. de Greiff is Director of the Project on Transitional Justice of the Center for Human Rights and Global Justice at the NYU School of Law.
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The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.