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Thursday, May 23, 2024

Do We Really Need a ‘Truth Commission’?

by Ravi Jayawardena.

A delegation from South Africa was in town recently for talks with certain parties, may be, to resume the stalled efforts for possible reconciliation in Sri Lanka. This team has been visiting for some time since the previous regime.

The purpose of the recent visit was not clear but the indication is that they would come again soon along with the Deputy President Cyril Ramaphosa. Although it was not a topic this time, evidently there were talks to set up a Truth and Reconciliation Commission (TRC) in Sri Lanka based on the South African experience. In the meantime, the media reported that a high-powered committee on Reconciliation was appointed by the President recently.

We are a nation that suffered a horrible ethnic war for about three decades. Although the war ended in 2009 with the defeat of the LTTE, the Government came under severe criticism for possible war crimes and grave human rights abuses.

As the case in every post-war situation in the world, there has been a great of demand for a genuine reconciliation process with justice for the victims. Due to international and local pressure, the previous government appointed the Lessons Learnt and Reconciliation Committee (LLRC) to deal with the allegations of war crimes and grave human rights abuses levelled against it. After a vigorous consultative processs, the LLRC submitted its report which received mixed reactions from both political and civil society. The government was accused of slow implementation of the recommendations of LLRC or the complete lack of it.

The desire of the previous government for reconciliatory actions were questioned in many ways by concerned parties including the Tamil polity. In this backdrop, I would like to briefly highlight several key issues pertinent to successful reconciliation in Sri Lanka by analyzing the international experience.

The two notions, reconciliation and transitional justice became popular during the 20th century when addressing post-war grievances in the world. These concepts were identified with two schools of thoughts which dominated the peace-building discourse at the very beginning.

Promoters of Human Rights believed that justice was paramount in the aftermath of a civil war where victims yearned for punishment of perpetrators. The other camp, mainly consisting of peace makers, believed that digging the graves of the past would undermine future coexistence and, therefore, ‘letting go of the past’ approach was the most suitable one.

They promoted the concept of restorative justice in which compensation for victims, rehabilitation, reconstruction and, forgiving the perpetrators.

However, a more moderate approach with the combination of those two schools of thoughts was the topic in the latter part of the 20th century. This new approach, is sometimes considered as the Third Way.

This new idea of TRC, came into being with the appointment of several Truth Commissions around the world, especially in Latin American countries. This instrument became a popular model after its application in South Africa in 1995 which was supposed be the most successful case so far. Thereafter, the truth seeking process became a popular model in most of the post-war countries.

The truth commissions come in different names and different forms. The first widely-known commission was set up in Argentina in 1983 but was named as a National Commission for the Disappeared.

El Salvadorian Commission is known as National Commission on Truth.

Whatever the name may be, the idea of truth-seeking is to elicit truth about what had happened and why it had happened and find ways and come up with recommendations not to repeat what took place earlier, in any given post-war situation.

Though there is no clear definition, scholars believe that certain elements should be embedded in a truth-seeking process. Mark Freeman and Pricilla Hayner, being experts on TRCs, believe that following aspects are important in a truth-seeking exercise:

(1) A Truth Commission focuses on severe acts of violence or repression;

(2) Deals with acts that occurred during recent periods of abusive rule or armed conflict;

(3) These commissions describe causes and consequences of such violations;

(4) They investigate violations that occurred in the sponsoring State

(5) The commissions themselves are based in that State;

(6) These bodies are victim-centered;

(7) They operate relatively independent from the State; and

(8) It is a temporary body with the aim of concluding with a final report.

In this respect, I believe the LLRC can be considered as a truth commission.

It is not advisable to commence TRC or similar efforts. Second, a committed leadership is essential as most of the truth-seeking processes have been failed due to non-implementation of the recommendations.
Salient features

Third, the government should create a conducive environment for reconciliation to take place. Allocation of enough resources, and manpower, and a media campaign are among them. Fourth, some form of democracy should prevail in the given society.

Independent and impartial police service, judiciary, public service and a strong law and order mechanism are the most important factors aspects needed for a reconciliation process. In this context, I believe that present Sri Lankan situation is much more favourable for reconciliation than in the past.

When devising any reconciliatory actions, it is important to pay attention to some important features. The TRC process should be totally context oriented. It is not a panacea for all ills. The South African context is totally different to those of Guatemala, El-Salvador, East-Timor and even Sri Lanka.

I believe that the application of TRC became easier in South Africa than in other post-war situations due to many reasons. The committed leadership and its religious background were, important factors. And also the South African black majority had achieved what they had been fighting for, whereas in Sri Lanka, the Tamil minority lost their struggle after the demise of the LTTE.

Therefore, I believe that this environment made things easier for people such as Nelson Mandela to initiate a ‘forgive and forget’ approach than in any other situations in the world. Thus the application of the complete and total South African model in Sri Lanka might not yield the required results and may, in fact derail any possible reconciliatory efforts here.

The other important factor is that the reconciliation effort should be a homegrown process. Outsiders’ role should be limited except in providing expert knowledge and resources. We noticed that there was a great deal of resistance from the previous regime for any international effort in Sri Lankan reconciliation process and as a result of this resistance, the reconciliatory work and donor assistance were hampered badly. Reconciliation is inherently a long-term process. It is a fact that any society which comes out from a brutal violent past, looks for speedy remedial actions to establish peace as conflicts tend to destroy almost every aspect of society.

Sanitation, health, education, livelihood and infrastructure development and above all, relationship-building become the core factors in every society. It is natural that everyone yearns for a fast reconciliatory approach which is common to Sri Lanka too.

Five years after the end of the civil war, people demand speedy actions and I have seen the frustration of such people. But, according to the practitioners, reconciliation has been a long term process. No quick remedies could be found for it especially after a protracted civil war.

Therefore, it is vital for the authorities to make the ground work to prepare society to endure a long term process rather than expect quick results.

Furthermore, it is recommended that reconciling work should cover the entire society rather than a specific area or a group of people. The argument behind this is that the end of a war destroys every aspect of the normal life of the people.

Everyone is affected at least by traumatic incidents of the brutal past. The word ‘victim’ has a broader definition now. According to UN resolution 40/34 of 1985, it is “persons who individually or collectively have suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts of omissions that do not yet constitutes violations of national criminal laws but of internationally-recognized norms relating to human rights.”

Therefore, when devising any reconciliatory approach, the international experience is that it should be focused on the entire society but giving priority to direct victims. If it is focused on any ethnic group or specific area, the reconciliation actions may not be implemented smoothly.

It will expose those victims to narrate their horrible stories once again and it will torture them once more. More importantly, the victims and those who had positive hopes about the LLRC process had lost their interest for truth-seeking mechanisms as the self-same government that appointed the LLRC did ignore the important recommendations.

Instead, the new committee can have a fresh look at the recommendations made by the LLRC including some possible prosecutions of those who were deemed responsible for grave human rights violations. In addition to the existing LLRC proposals, there are certain areas that needs fresh attention like women’s issues, problems faced by children, women-headed family issues, trauma healing etc.

The ongoing disappearance commission’s work has to be strengthened to address the demand for justice rather than using it to hoodwink the international community. The international experience suggests that it is extremely difficult to address the issue of Justice fully due to many reasons.

Guuner Thiessen, being an expert on reconciliation, points out that “As long as people who themselves have been responsible for the past atrocities hold senior positions in society and, are supported by, large sections of it they will try to prevent any investigations into crimes for which they could be held accountable.”This situation is not an exception in Sri Lanka too. Since the Sri Lankan context is different, even under the present regime, the total justice through prosecutions would be a difficult task due to nationalist elements. Even in South Africa, there has been a great deal of frustration prevailing due to the issue of Justice being denied to many victims.
Reconciliation or co-existence

Having analysed the problems that may emerge, I suggest to adopt, a relatively new concept which is, the idea of co-existence as it will be the start of reconciliation in deeply-divided societies like Sri Lanka. The international IDEA hand book also sees co-existence as the first stage of reconciliation.

In Sri Lanka, today, the two communities coexist without much interaction in certain areas of the country. In the absence of a credible reconciliatory effort, forcing the communities to reconcile with each other would not be realistic.

Practitioners now suggest to begin the reconciliation process by promoting coexistence. As very correctly asserted by David Bloomfield, coexistence would surely help to bring the conflicting parties together. He says “To ask victims to coexist with their former enemies carries far fewer negative implications for them than asking them to reconcile with them….

It minimally suggests acknowledging each other’s rights to inhabit the same space without violence. Two communities could conceivably coexist along purely parallel lines within that space, without interaction”.

Coexistence, as mentioned earlier, can be the beginning of a decent reconciliation process, but should not be adopted as an end-product as it has its own limitations. According to Chigas and Ganson “Even where people increasingly believe in the right of the ‘other’ to exist and secure a livelihood, they may feel deeply divided on issues of political identity and power.”

As a concrete step, I suggest that a high-powered authority be set up to look into the situation of the families of those who lost their lives during the last stages of the war. Creation of such an institute would show that the government is keen to do something for the victims, thereby generating empathy. It will be the starting point for true relationship-building.

It is estimated that the figure was around 40,000 casualties. This high powered authority should look into the grievances of those families. It may be the employment of those who survived, improvement in their livelihoods, education of the children, sanitation, reconstruction and housing.

Subject of political solution should not be brought in a haste as it might derail the entire reconciliatory efforts. One can forcefully argue that the political solution is the first priority and while agreeing to that, I propose to take it at a later stage as the priority today is bridging the gap between ethnic groups. Once ethnic harmony is established, it might be easier to discuss political matters. Furthermore, the work of the Northern Provincial Council needs to be improved by empowering it with more allocations and resources.

The writer is an Attorney-at-Law and a Fulbright Scholar who had researched on Reconciliation at the Salisbury University of Maryland, US. He is a founder Director of One Text Initiative of Sri Lanka. He also served briefly as Sri Lanka’s youngest Prisons Commissioner.


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