Published in The Ground Views on Feb. 02 by Bhavani Fonseka ::
The ‘Declaration of Peace’ by the Government of Sri Lanka at the 67thIndependence Day Celebrations held on 4th February 2015 is a notable shift in its recognition of the past and the need for healing and unity. The Lessons Learnt and Reconciliation Commission (LLRC) made a similar recommendation, as did the United Nations Secretary General’s Panel of Experts (PoE). Recognizing the past is the first in a process needed to address past violations, provide answers regarding missing persons, initiate independent mechanisms to hold alleged perpetrators to account and end the culture of impunity.
A month after President Maithripala Sirisena took office, statements from ministers and media reports indicate to an establishment of what is termed a ‘credible domestic process’ to investigate the past. It is yet to be seen how different this would be to the rhetoric of a ‘home grown’ by the previous government. In addition, there is a change of policy to engage with the United Nations Office of the High Commissioner (OHCHR) and the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL). Although engagement has been indicated, limited information is available in the public domain as to what this will entail and how this will impact the victims and survivors of the war in Sri Lanka and their search for truth and justice. With discussions moving forward as to what should and could transpire at the 28th Session of the UN Human Rights Council (UNHRC), the calls for truth and justice by a significant population in Sri Lanka must not be ignored. It is also necessary to factor in whether Sri Lanka has the capacity to address past violations via what the Government has promised as a ‘credible domestic process’. The past track record in this area is dismal and any efforts at international and domestic processes must ensure they meet with international standards and heed calls of the affected population. This article briefly sets out why it is key to explore both domestic processes and to continue to have international attention and support for truth and justice in Sri Lanka.
The Need for Continued International Attention
The pledge to address accountability came about in May 2009 in the joint communiqué by former President Mahinda Rajapaksa and United Nations Secretary General (UNSG) Ban Ki Moon. Failure to take action resulted in the UNSG appointing a POE to advice him on whether violations of international human rights and humanitarian law occurred during the war. The POE came out with a scathing report pointing to violations and with specific recommendations to the Government of Sri Lanka and international community. The resolution setting up the OISL came about in the absence of any genuine steps by the Rajapaksa Government to live up to its own promises and pledges to investigate. It is also a testament to the calls by victims and survivors for truth and justice and who bravely provided testimony of past and ongoing violations.
It is in this context that the UNHRC must not fail the victims and survivors of Sri Lanka. The 28th Session provides an opportunity for member states to discuss Sri Lanka and use the opportunity to constructively engage with the Government of Sri Lanka and support its own domestic initiatives. It is also fundamental that Sri Lanka continues to be on the agenda of the UNHRC with continued support by the international community including the OHCHR and other human rights mechanisms. Although the Sirisena Government has indicated an interest to engage, this alone should not dilute the stand taken by the international community to investigate past violations and support Sri Lanka in terms of initiatives at addressing truth, justice and reconciliation. There are several areas that require attention before Sri Lanka can initiate domestic investigations including legal and policy reform. This includes reforming the Commission of Inquiry Act and introducing legislation for victim and witness protection. Capacity building is also needed including providing trainings to judges, lawyers, court staff, investigators and forensic scientists among others.
Lessons from Previous Domestic Processes
Successive governments appointed numerous commissions and made many promises to investigate violations, with limited information in the public domain regarding progress and follow up. With claims of revisiting domestic processes, it is important that such processes are initiated in a transparent manner and not be speeded through for political gain. Secrecy with such processes can lead to suspicion and question its legitimacy. Another important component of any domestic process is to have the involvement of victims, survivors, affected communities and civil society. Such groups can be an oversight mechanism to monitor proceedings and raise issues, ensuring the process is credible and fair. It also provides an ownership in the process. Civil society groups played an active role in past processes such as when several groups had standing to represent victims before the Commission of Inquiry looking into 16 past cases (also known as the Udalagama Commission). Similarly, civil society and community groups played an important role in supporting many victims and affected communities to come before the LLRC and continue to support families who go before the present Presidential Commission to Investigate Complaints Regarding Missing Persons (Missing Persons Commission).
Other lessons from previous experiences include having an effective victim and witness protection mechanism and independent prosecutors. While exploring modalities for domestic processes, we must also remember that one specific model at addressing justice and accountability is insufficient. A sense of justice and closure do not always come with prosecutions and it is critical to also consider other modalities of transitional justice including truth telling processes, memorialization and reparations, areas which I have raised in a previous article.
The International Dimension to a Domestic Process
Recent statements by government ministers also indicate to the possibility of having an international dimension to the domestic process. Although it is still unclear what exact role international actors are to play in such a process, it is worth examining past experiences when international actors were involved in investigating serious human rights violations in Sri Lanka and identify lessons from such experiences for future modalities. An earlier initiative involving internationals was in 1993 when an international commission was established to investigate the death of Lieutenant General Denzil Kobbekaduw and others. The international commission comprised three Commonwealth Judges- Justice Austin Necabeohe Evans Amissah (Ghana), Sir Kenneth James Keith (New Zealand) and Justice Muhammadu Lawal Uwais (Nigeria). This commission was established subsequently to a presidential commission headed by Justice Ismail. With criticism made against the two entities, another commission headed by Justice Tissa Bandaranayake was appointed in 1997 to investigate into the same incident.
More recently the Rajapaksa Government established a group titled the ‘International Independent Group of Eminent Persons’ (IIGEP) with the mandate to monitor the proceedings of the Udalagama Commission. The IIGEP was headed by India’s former Chief Justice P.N.Bhagwati with 10 other international experts who were nominated by several countries and multilateral bodies. Funding for the IIGEP was based on contributions by those who had nominated members, with a secretariat comprising both internationals and nationals with expertise in areas needed to fulfill its mandate. The IIGEP observed sittings and attempted to engage with the Commission but left within a year of its appointment citing a ‘lack of political will’ by the Government to address past cases.
The IIGEP was a unique model in that it did not have a direct involvement in the investigations but was meant to monitor proceedings. This role though was disputed with the advice of the IIGEP not being taken on board by the Udalagama Commission and the Government. The IIGEP raised issues of the independence of the commission and interference by the Government in proceedings, both of which were disregarded. The ‘IIGEP model’ must be studied when there is interest to identify a role for the international community and it should be noted that mere monitoring has its set backs, especially if the domestic process is unwilling to heed advice. Furthermore, the IIGEP did not have independent access to witnesses or conduct independent investigations. The reports of the IIGEP were submitted to the President, who had the power to veto publication of information. None of IIGEPs reports to the President are publicly available.
The most recent international component to a domestic process is the Advisory Council to the Missing Persons Commission. The Advisory Council was established in July 2014 by Gazette No. 1871/18 and consists of six internationals including Sir Desmond de Silva (UK), Sir Geoffrey Nice (UK), Prof. David Crane (USA), Prof. Avdash Kaushal (India), Mr. Ahmer Bilal Soofi (Pakistan) and Mr. Motoo Noguchi (Japan). According to the extended mandate, the Advisory Council is to ‘advice the Chairman and Members of the Commission of Inquiry, at their request, on matters pertaining to the work of the Commission’. But questions remain regarding the exact role of the advisers and whether they were appointed to actually advise the Government of Sri Lanka who stands accused of serious human rights violations. Their flawed role in Sri Lanka has been noted by the Sri Lanka Campaign including questions raised whether their claim of a lawyer-client relationship with the Government of Sri Lanka is undermining the role expected of them as provided in the gazette appointing them. Further questions are raised regarding funding. According to media reports, the Central Bank of Sri Lanka has paid De Silva UK sterling pounds 60,000 per month (about Rs.12 million). This excludes costs of food and lodging. It is indeed worrying that millions have been spent on the Advisory Council when there is limited information available regarding their exact role and questions are raised regarding the utility of such an exercise.
Lessons for the Future
This article provides a glimpse into what has been tried in Sri Lanka including the role of international actors in domestic processes and lessons for any future process. This by no means discounts the importance of international processes at truth and justice. Moves to formulate what is being termed a ‘credible domestic process’ must take note of past experiences and identify benchmarks that facilitate an independent process. An issue flagged is the possible provision of technical support by the international community to a domestic process. Although this is important, technical support alone is insufficient. There needs to be greater involvement with investigations and support for reform. It is also critical that any future process is independent, transparent and inclusive, including providing space for victims, communities and civil society. Some will argue for more time in terms of investigating past violations. More than five years after the war, there should be no further delays. It is essential that the Government demonstrate its commitment to the people of Sri Lanka to end the culture of impunity and fulfill its promise to address truth and justice in Sri Lanka.