Delivering post-war justice in Sri Lanka

by Smruti S Pattanaik

The Office of the High Commission of Human Rights' (OHCHR) investigation on Sri Lanka (OISL) submitted its 220-paged human rights violation investigation report consisting of two volumes to the UNHRC in pursuant to the Human Rights Council Resolution 25/1 on September 16.

Foreign Minister Mangala Samaraweera

The report, welcomed widely by the Sri Lankan Government as well as by Tamil organizations, pointed that there are 'reasonable grounds' to believe that gross human rights violations committed by the LTTE and Sri Lankan Security Forces may be tantamount to war crimes and/or crimes against humanity.

While taking note of various institutional mechanisms that the present government has put in place to address the issue of enforced and involuntary disappearances, its sincere commitment to implement the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC), the establishment of the Office of National Unity and Reconciliation headed by former President Chandrika Kumaratunga, and significant opening up of the democratic space, the report stated that there is a need to "embark on fundamental reforms of the security sector and justice system before it can hope to achieve a credible domestic accountability process and hope to achieve reconciliation".

Hybrid court

In this context, the report noted that the High Commissioner is 'convinced' that Sri Lanka "will require more than a domestic mechanism" and recommended the establishment of 'hybrid special courts' consisting of international judicial luminaries. What has drawn particular attention is the recommendation to establish a 'hybrid' system of investigation. Indeed, this recommendation has attracted a great deal of criticism.

Former President Mahinda Rajapaksa, who had earlier disregarded the UN request, has termed many of the report's recommendations as 'hostile' and going against the armed forces and the country.

While nationalists have stated that the report's recommendations constitute an infringement of the country's sovereignty, the Sri Lankan government has welcomed it. In addition, it co-sponsored, along with the United States, a watered down Resolution at the UNHRC for which India too had assured its support.

For this purpose, the Government of Sri Lanka held intense discussions with the members of UNHRC, moved suitable amendments and managed to thrash out a 'consensus' resolution that would ensure an impartial domestic investigation. Eventually, it decided to co-sponsor this consensus resolution - 'Promoting reconciliation, accountability and human rights in Sri Lanka' - after the United States, United Kingdom, Northern Ireland, Macedonia and Montenegro agreed to delete 14 paragraphs in the original report that the US had presented on September 14 to the 30th Session of the UNHRC.

The amended draft, which has been adopted by the UNHRC, states that the resolution is an "important step toward a credible transitional justice process, owned by Sri Lankans and with the support and involvement of the international community."

Unlike its predecessor, the present Sri Lankan Government has adopted a policy of engaging the West. It is sincere about promoting reconciliation as is evident from the various measures it has undertaken to address Tamil grievances. Earlier, the Rajapaksa regime portrayed all UNHRC resolutions passed after 2009 as an affront to Sri Lanka's sovereignty and rejected allegations of human rights violations by portraying them as being tantamount to meting out punishment for patriotic soldiers who defeated terrorism. Such stoking of Sinhala nationalism polarized the country and the government's policy of invoking the fear of a possible reincarnation of the LTTE only helped it to further militarize the country and continue with the draconian Prevention of Terrorism Act (PTA). Assaults on journalists, forced disappearance of critics of the regime and undermining of state institutions to prevent oversight over executive action were all justified in the name of state security and protection of sovereignty. However, the Sirisena-Wickremesinghe combine has made a departure from this past politics of jingoism. This is evident from the fact that the media has been supportive of the government's effort to engage the international community constructively in its reconciliation effort.

The benefits of this approach are clear. When Secretary of State John Kerry visited Sri Lanka after the January 2015 presidential elections, he had made it clear that the United States will sponsor a Resolution calling for a domestic investigation. This was unlike last year when the US and other Western countries had asked for an international investigation.

Efforts of the government

Speaking at the Chartered Institute of Management Accountants (CIMA), Colombo, Prime Minister Ranil Wickremesinghe said Sri Lanka's decision to co-sponsor the Resolution saying that "the world has accepted the fact that we are building a democratic society."

Both the Resolution and the UN investigation reports emphasize Sri Lanka's democratic transition and have expressed hope that the present government would carry forward a credible accountability process.

Sri Lanka has agreed to establish a judicial mechanism and an office of special counsel who will investigate human rights violations and establish accountability. In the process of establishing accountability, the government has agreed to take the help of Commonwealth, foreign and local judges and lawyers authorized by Sri Lankan law.

The government has proposed to establish a commission of truth seeking, justice, and reconciliation and to prevent conflict from breaking out in a four-tier system of transitional justice. The operative paragraph 6 that had proposed hybrid courts, which was main source of objection of the Sri Lankan Government, now reads: "further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel's office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators."

In his September 14 speech at the UNHRC, Foreign Minister Mangala Samaraweera promised to "review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices; review the Public Security Ordinance Act; and review the Victim and Witness Protection Act which was enacted this year."

Tamil political parties

While the Tamil National Alliance (TNA) formally welcomed the draft text Resolution on Sri Lanka, except for the Ilankai Tamil Arasu Katchchi (ITAK), the other three constituent parties of the TNA as well as 40 other organizations have submitted a petition seeking an international investigation on war crimes as they feel that "accountability and justice can only be truly delivered through an international criminal justice process."

This sentiment echoes the resolution that was passed on September 1 by the Northern Provincial Council (NPC) demanding an international investigation. Chief Minister C.V. Wigneswaran of the NPC, who has been working at cross purposes with the TNA and its General Secretary Mavai S. Senathirajah, also welcomed the OCHCR report which asked for an international investigation.

Defending the TNA's position on seeking only an internal probe and criticizing the campaign launched by Tamil organizations as well as by the Party's NPC Chief Minister Wigneswaran, General Secretary Senathirajah said that "those who attempt to sling mud on the TNA with launching a signature campaign calling for an international investigation should realize that the TNA was the first to initiate an international investigation and the proposed internal investigation is part of it."

The reason why the TNA wants to proceed with reconciliation and seeks only a domestic investigation is because it does not wish to arouse the deeply entrenched Sinhala suspicions about an international investigation which could be used by Rajapaksa and his supporters to derail the accountability process. But the TNA appears to be losing out to Tamil hardliners who, like the Sinhala chauvinists, approach the issue of reconciliation from a zero sum game perspective.

Foreign engagement

Sri Lanka is not new to involving foreign judges in domestic commissions. Rajapaksa himself had established the International Independent Group of Eminent Persons (IIGEP) to observe the work of the Commission of Inquiry mandated to Investigate and Inquire into Alleged Serious Violations of Human Rights committed in the country since 1 August 2005 (known as the Udalagama Commission, 2006).

Members of this Group were nominated by the government and donor countries.

This was one commission that was related to the ethnic conflict. In addition, the commission to enquire into the assassination of S.W.R.D. Bandaranaike and the three-member international commission appointed to enquire into the killing of General Denzil Kobbekaduwa in Kayts had international participation.

The change in government has brought about a qualitative change in the country's political atmosphere and is a departure from the culture of impunity that existed during the Rajapaksa regime.

While the new government has promised a domestic mechanism to look into the issue of human rights abuses and has set up various commissions, the post war narrative and triumphalism has had an impact on the sentiment of Tamils and explains their lack of trust with regard to the government's sincerity in investigating the excesses committed by the armed forces, compassionately address the missing persons issue and bring a closure to the trauma of war. However, much is not lost for the Tamils in the watered down UNHRC resolution.

Since the government is sincere and has undertaken various steps since the January 8 election, international oversight in the form of a panel of judges and the UNHRC mechanism would help address the apprehensions of the Tamils about a domestic investigation mechanism.The domestic investigation mechanism is also likely to come under intense scrutiny from the media and international community and thus generate sufficient pressure on the government to deliver justice.

The writer, Smruti S. Pattnaik is a Senior Associate Fellow of the New Delhi-based Institute of Defence and Strategic Analyses -IDSA

when this article was originally published