Broken Promises Again at the UN?

The Geneva sessions assume significance because of an oral update on how well transitional justice in Sri Lanka is being implemented. Transitional justice mechanisms were spelt out and adopted unanimously by the UNHRC in September 2015 through Resolution 30/1, which Sri Lanka co-sponsored.

The resolution was a result of the tangled politics that followed the country’s 30-year civil war ending in May 2009 with the military defeat of LTTE rebels at the hands of government troops. Mass violence against civilians gave rise to accusations of war crimes and crimes against humanity against both combatants.

Sri Lanka’s Foreign Minister Mangala Samaraweera outlined a suite of four transitional justice mechanisms at the UNHRC in 2015: a Commission for Truth, Justice, Reconciliation and Non-recurrence; a judicial body with an Office of Special Counsel set up by statute; an Office of Missing Persons; and an Office of Reparations. He also promised these institutions would only be set up after consulting the people – especially the victims / survivors. Sri Lanka agreed to usher in an environment conducive for reconciliation by repealing the Prevention of Terrorism Act and reviewing other security legislation. These promises were woven into the text of Resolution 30/1.

But whether the government is committed to implementing these pledges is questionable. This article will highlight four grey areas: 1) a dearth of systematic public consultations, 2) obstacles in the OMP for aggrieved citizens to seek justice, 3) rejection by political leaders to include foreign judges and prosecutors in judicial mechanisms and 4) the farce of repealing the PTA.

In Resolution 30/1 Sri Lanka committed to, and the international community supported, “broad national consultations… of victims and civil society… which will inform the design and implementation of these processes…” On October 29, 2015, Samaraweera addressed a group of CSOs and gave them a two week deadline to make submissions on designing the public consultation process. Certain CSOs operating in Northern and Eastern Sri Lanka, where the vast majority of the victims reside, sent the Foreign Ministry their views. The common thread in the CSO submissions was that consultations should not take place in the repressive militarised environment of Sri Lanka’s North and East.

In January 2016 the government appointed the Consultation Task Force on Reconciliation Mechanisms, an 11-member body of civil society activists, tasked to undertake national level consultations on transitional justice.

After an abeyance of activity for several months, the Foreign Ministry called a meeting of select CSOs on May 9 and unveiled the structure of the OMP – in a two-page leaflet. Hurried moves to set up the OMP raised a flurry of protests on the lack of consultation. A group of civil society activists working with families of the disappeared wrote to Samaraweera, “We categorically state that an OMP that is designed without proper consultation with the victims and their communities would be unacceptable.”

The concerns of CSOs and others fell on deaf ears. The government gazetted a bill to establish the OMP on May 27 without meaningful consultations. In fact it was only between  June 11-13 that the Consultation Task Force had its first training programme of CSOs on consulting victims in each district to input into the designing of the OMP structure (among others things).

The OMP bill makes plain why the government ignored holding systematic, wide-ranging consultations with victims before preparing the document. The victims and the government differ in their views on the OMP’s prosecutorial function.

As he outlined his government’s vision for the OMP in Geneva last year, Samaraweera declared it would be “based on the principle of the families’ right to know.” But families of the disappeared have other ideas: they believe that the OMP should help aggrieved families of the disappeared (victims) to prosecute alleged perpetrators.

Draft legislation for the OMP has paid scant regard to such sentiments. If the government has its way, not only will the victims be unable to use the OMP to prosecute perpetrators, but the clause “the findings of the OMP will not give rise to any criminal or civil liability,” will bar individual citizens from initiating legal proceedings using the OMP’s findings even in existing courts of law. “By stating this [that findings will not give rise to any civil or criminal liability] the authorities have conceded the OMP will not enable victims from finding justice and accountability,” said Lawyer K. S. Ratnavel, who handles cases on behalf of victims of extra-judicial killings and massacres perpetrated by Sri Lanka’s security forces, including habeas corpus cases of the disappeared. He added that “Accountability and truth-seeking are two sides of the same coin and one cannot be excluded for the other.”

Following criticism that Sri Lanka could not establish a credible judicial mechanism to try war crimes, especially by military personnel, Resolution 30/1 calls for “participation in a Sri Lankan judicial mechanism … Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators.”

This, arguably, is the portion of the resolution that has met with the most sustained resistance from the government. Government and opposition politician have decried this as an infringement on Sri Lanka’s sovereignty and an insult to its institutions. A recent high-profile denunciation of foreign judges came from President Maithripala Sirisena: “Very clearly we do not need foreign judges … If necessary we can obtain foreign technical support.” Prime Minister Ranil Wickremesinghe too has rejected the idea of foreign judges.

Sri Lanka President Maithripala Sirisena. Pic: AP.

That foreign involvement in the judicial mechanism should not be limited to ‘technical support’ has been vigorously contested by victims and CSOs who work with them. Its importance was given renewed emphasis by Stephen Rapp, former U.S. ambassador-at-large for global criminal justice. In an interview with Tamil Guardian, he said, “having internationals can help both capacity (of the court) and can also give the victims in whatever communities greater confidence that these will be decided independently and not on some political basis.”

Finally there appears to be a game of smoke and mirrors being played with repeal of the Prevention of Terrorism Act (PTA). In Resolution 30/1 the government is committed to repealing, reviewing and replacing the PTA with “anti-terrorism legislation in line with contemporary international best practices.” In March, Samaraweera claimed in parliament that the Law Commission had submitted draft legislation on this. In June, a newspaper reported three pieces of legislation would replace the PTA. While the public has not seen it, opposition parliamentarian M. A. Sumanthiran said, “I am given to understand that the [law commission] draft has been dumped and … a new piece of legislation has been drafted which I am told is worse than the PTA.”

Meanwhile, arrests under the PTA continue. The spate of arrests before the visit of Juan Mendez, the UN special rapporteur on torture, and the continued surveillance of CSOs working with victims in Sri Lanka’s North and East have a chilling effect. Future consultations of victims on transitional justice will probably take place in such an environment.

This is a snapshot of how the government has gone back on what it promised in Geneva in September 2015.  Samaraweera’s solemn plea last year “trust us…” rings hollow.

There is no doubt that this year too Sri Lanka’s UN delegation will embellish the sordid performance of its government with conciliatory words and artful phrases. But the international community should insist on course correction by Colombo through both a strong oral update by UN High Commissioner for Human Rights later this month and by the co-sponsors of Resolution 30/1 continuing to monitor – even after High Commissioner submits his final report in March 2017 – Colombo’s commitment to transitional justice.