TRC – a Sophisticated Get Out of Jail Free Card?

by Yasmin Sooka & Frances Harrison, Tamil Guardian, London, January 8, 2024

A rally in Jaffna in 2021, where Tamils demanded Sri Lanka be referred to the International Criminal Court.

Sri Lanka has published a bill to establish a Commission for Truth, Unity and Reconciliation. Though the bill superficially appears to tick several boxes for the international community, a close examination reveals it is deeply flawed and represents a total betrayal of justice for Tamil and Sinhala victims of mass atrocity crimes. This is aside from whether there is political will to implement any truth recovery regarding the country’s violent past.

Evidence

No evidence given to the Commission will be admissible in a court of law or other proceeding (Paragraph 48). Eyewitnesses may name individuals who committed mass atrocities – or individuals can confess to crimes in front of the Commission – but those responsible will effectively enjoy immunity despite these disclosures, which will make it near impossible to mount any prosecutions even where the circumstances warrant it, in effect an amnesty without legislating.

In terms of the bill, ‘victims’ have the “right to report serious crimes to the relevant law enforcement or prosecuting authorities” (Paragraph 23), which contradicts the bill’s paragraph on the inadmissibility of evidence (Paragraph 48) before the Commission. Of what use is this right, if the information obtained before the Commission is not admissible as evidence against perpetrators? It is nonsensical and absurd.

The bill provides for referrals of cases to the Attorney General’s office, which as everybody in Sri Lanka knows has an internal conflict of interest – as it acts both as the lawyer for the Government and security forces as well as a (non-independent) prosecutorial authority.  The law enforcement agencies have also been deeply compromised, given their past complicity in gross human rights violations. Sadly, the same old systems that have failed for decades will still be responsible for investigations and prosecutions. It is this which makes it highly unlikely that anyone in the security forces or their allies will ever be prosecuted, let alone convicted.

The Sri Lankan Government long ago rejected the idea of a Hybrid Court – instead the Attorney General’s office and judicial system will operate under the Sri Lankan penal code, which doesn’t recognise international crimes or command responsibility. At best a junior soldier might be charged with murder – no General or politician will be held accountable for ordering arbitrary detention, denying civilians critical food and medicine, overseeing torture camps, allowing their men to rape and execute, or failing to ask what happened to thousands of detainees who disappeared in their custody.

The Commission can hold closed-door sessions in several circumstances – including, “where there is a risk of prejudice being caused to any ongoing or prospective legal proceedings” (Paragraph 7 (4) f). Will this exclude existing emblematic cases implicating the security forces?

Paragraph 49 gives the Office on Missing Persons (OMP) the right to ask the Commission to defer any investigation into disappearances.  This will kill any likelihood of cases of enforced disappearances being investigated.

Appointments

Candidates for the Commission are pre-chosen by the Constitutional Council but it’s unclear if this body will enjoy independence from the executive and if selection will be an open public process like in most countries so that nominees can be screened and vetted transparently. Additionally, the Commission should automatically exclude anyone who has been implicated in human rights violations, fraud, and corruption, but this is not explicitly stated in the legislation.

The legislation also provides for the President to appoint an advisory committee, but it does not spell out what advising means in the context of the Commission (Paragraph 32). It just says that they will advise not only the Commission, but the panels and secretariat. This could create conflict if the advice is ignored and there are power struggles. These bodies can also be filled by deniers as a safety layer to protect the establishment.

Furthermore, when the Commission decides on the truth, a Monitoring Committee will be responsible for implementing any recommendations (Paragraph 39). One of the members of this body would include the defence secretary or his nominee – currently General Kamal Gunaratne who commanded the 53 Division in the final phase of the civil war and who himself faces allegations of complicity in war crimes. Another member would be the Minister of Finance who is the current President – who is himself accused of complicity in torture in Batalanda in 1989 in a presidential commission report. Will that Batalanda report form part of the findings of the new Commission?

Already 5 of the 11-member Monitoring Committee are appointed by the President who also indirectly controls the 6 ex officio members.

Systemic

The mandate of the Commission superficially appears wide, with a nod to looking at “systemic crimes” (Paragraph 12,h, xi). While the use of the word “crimes” is positive, the legislation also refers to individual perpetrators of “alleged violations and abuses” which is far weaker language. To appease the international community, the wording references command responsibility (“those who advised, planned, directed and commanded”), but this is deliberately misleading in that command responsibility is not provided for in Sri Lankan law. This is a body set up to protect the leadership while holding out the false promise of finding out who was really responsible for atrocities.

The proposed legislation also does not mention the one million-strong Sri Lankan Tamil global diaspora where many of the key witnesses to war crimes are located. These are the witnesses who testified to the various post-war UN bodies that led to (until now) an internationally recognised call for accountability. There is provision for sittings all over Sri Lanka but no arrangement for victims and witnesses living abroad to testify despite the fact precedent exists for allowing testimony to a Commission from abroad.

Power

The Commission does have the power to requisition “reports, records, documents or information from governmental authorities or any source and to compel the production of such material as and when necessary, including through access to archives” (Paragraph 13 s). However, victims who testified to past Commissions (such as into the JVP-era disappearances) do not have access to their past testimony held in government archives though access is necessary so they don’t contaminate their previous testimony given decades ago.

A promise to have access to documents seems positive but in practice, a vast number of commissions and boards of inquiry in Sri Lanka have never even published their own reports, let alone achieved truth or justice. Furthermore, the Sri Lankan Army has defied even court orders to produce evidence so it’s unclear why it would be different with this Commission.

Moreover, experience elsewhere shows the reliance on a Magistrate to obtain a search warrant can often be a stumbling block. Likewise, (Paragraph 13 zb) enables the Commission “to seek the assistance of the Sri Lanka Police as necessary to advance the investigations of the Commission” but in practice, everyone in Sri Lanka knows after many decades that the police will never investigate themselves.

The Commission’s language gives a sense of what a drawn-out process this is going to be. It can  “refer matters to the relevant law enforcement or prosecuting authorities of Sri Lanka for further investigation and necessary action” (Paragraph 13 xd). Why not for prosecution or even vetting and screening of individuals who are suspects?

Commission’s Recommendations

The Commission is to make recommendations on a number of issues such as harm, root causes, reforms, and reparations but critically not on criminal accountability or prosecutions.  Nevertheless, it is supposed to make recommendations regarding non-recurrence. To do this would need to include recommendations around future investigations with a view to prosecutions.

The bill is adamant that “The Commission’s recommendations shall not be deemed to be a determination of civil or criminal liability of any person.” (Paragraph 16(1)). This clause is unnecessary as Commissions are not judicial bodies but quasi-judicial and would in any case have to refer matters to the prosecutorial authority, which is set out in the next paragraph (16(2)).

The bill is designed to appease the International Community so that Sri Lanka itself can avoid any further international scrutiny and get rid of the OHCHR’s independent investigative process. It’s quite devious in ensuring that there will be no criminal accountability for those who have command responsibility for serious international crimes committed during the civil war in Sri Lanka, and the JVP period.

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Yasmin Sooka is a leading human rights lawyer and the executive director of the International Truth and Justice Project (ITJP). Frances Harrison is a former BBC journalist and director of the International Truth and Justice Project (ITJP).

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