“Despite having been presented with important opportunities for genuine change and reform starting in early 2015, the Sri Lankan authorities have failed to adopt and implement a comprehensive transitional justice policy with the four constitutive elements of truth, justice, reparation and guarantees of non-recurrence,” says Pablo De Greiff, report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence in his report to the upcoming 45th session of the UNHRC.
Conclusions and recommendations and full report:
Conclusions and recommendations
77. Despite having been presented with important opportunities for genuine change and reform starting in early 2015, the Sri Lankan authorities have failed to adopt and implement a comprehensive transitional justice policy with the four constitutive elements of truth, justice, reparation and guarantees of non-recurrence. Such a policy, if designed and implemented in an inclusive and participatory way, has the potential to provide recognition to victims, strengthen the rule of law, foster civic trust and promote social integration and reconciliation. The Government, entangled in internecine disputes, has squandered these opportunities for redress and prevention, thus depriving not only victims but all of Sri Lankan society.
78. In the aftermath of large-scale violations and abuses, when trust among citizens and between citizens and State institutions has been shattered, it would have been opportune to adopt policies meant to identify the conditions that led to the violations, reliably attribute responsibility, offer diverse forms of reparation to victims so as to enable them to resume their lives with an increased sense of well-being, reform institutions to prevent future violations and help to lay the foundations for increased trust. Not only has this not been achieved but, with the presidential elections looming, the openings for doing so are fast closing.
79. While understanding of transitional justice has increased in society and parts of the Government, such understanding has not been internalized sufficiently. Transitional justice can achieve its potential only if it is not used as an instrument of “turn-taking”, to benefit one community over others or to further partisan political interests.
80. The promotion and enforcement of human rights is at the core of transitional justice. That means that the rights of all, independently of all other considerations, including ethnicity, religion, politics and gender, must be strengthened. Having misunderstood these foundational principles, Sri Lanka, which could have been an example for the world about how sustainable peace ought to be achieved, appears to have missed a historic opportunity.
81. While the events that took place towards the end of the conflict merit special attention, the history of violations in Sri Lanka is longer and more “inclusive”: this is a country in which every community has victims. In addition to the Tamil who suffered violations during the conflict, among the victims who are still awaiting redress are those who suffered during the insurrections mentioned above, the many victims of terrorist attacks, the family members of the over 600 police officers gruesomely murdered in 1990 and the Muslim population forced out of Jaffna in 1990.
82. The debate continues in the newspapers concerning the number of victims at the end of the conflict, in other words whether there were 40,000 or “merely” 8,000. Transitional justice processes can help in settling these interminable debates, which are precisely of the sort that manifest and produce low levels of trust and that lend themselves easily to political manipulation.
83. Transitional justice processes are nothing like witch hunts, they do not involve massive purges and do not trade on charges of collective responsibility or guilt by association. The Special Rapporteur notes with concern the use of rhetoric such as “war heroes will never be brought to trial”. This misrepresents the target of transitional justice accountability measures by suggesting that it has a generally anti-security agenda, and overlooks the fact that no one who has committed violations of human rights law or of the laws of war deserves to be called a hero. Sifting through cases in which force has been used legitimately and lawfully and cases in which it has not, under conditions in which all relevant due process guarantees are meticulously adhered to and in which not only the rights of victims but also the rights of suspects and the accused are protected, is at the heart of transitional justice accountability measures.
84. The Special Rapporteur adds that the promise made not to try “war heroes” is a legally unenforceable political statement and therefore cannot offer any real security. Implementing such a promise would ultimately require, domestically, a violation of the principle of the separation of powers, among other things, and, internationally, offers absolutely no warranty. As experiences in other countries have shown, accountability will be sought either at home or abroad. This is an additional reason for the Government of Sri Lanka, together with the full support of the armed forces, which stand to gain from this
process, to establish a robust, credible and comprehensive transitional justice policy.
A. General recommendations
85. Nothing has hindered the transitional justice programme in Sri Lanka more than lack of commitment on the part of the Government, which was not only slow in terms of design and implementation, but which wavered in its messaging and ultimately has failed up to this point to take full ownership of the process. Sri Lanka has a long history of partial compliance with its human rights obligations, which is not actually a form of compliance but, ultimately, one of non-compliance. Breaking out of this pattern means making unambiguous commitments, expressed both in words and in deeds, starting with the President and the Prime Minister, and making the case for a comprehensive human rights-based and gender-sensitive redress and prevention policy that integrates measures to satisfy victims’ rights to truth, justice, reparation and guarantees of non-recurrence.
86. On this basis, the Special Rapporteur recommends that the Government:
(a) Develop a comprehensive transitional justice strategy that includes a clear timeline for the establishment of the different transitional justice mechanisms, identifies needs regarding budget, staff and required expertise and outlines the links between the different elements of the strategy. Moreover, the Government should allow the public to engage in consultations in the development of the strategy and seek, in particular, the views of women, given the differential impact that violations and the conflict have had on them and children;
(b) Take greater advantage of the report of the Consultation Task Force on Reconciliation Mechanisms. In its report, the Task Force identifies expectations, needs, challenges and priorities as expressed by key stakeholders and provides information that could be invaluable to the Government’s efforts to align its intentions with the needs of victims. The network that the Task Force put in place in 2016 could prove very useful for continuing the dialogue and holding consultations on the design and implementation of reconciliation mechanisms;
(c) Tap more into the expertise that could be provided by OHCHR. So far,Sri Lanka has regrettably underutilized the support offered by the United Nations;
(d) Take greater advantage of its Human Rights Commission during the entire process of drafting legislation. The Government must commit itself to providing the Commission with sufficient resources to carry out its crucial functions and to takings its views and recommendations seriously.
B. Recommendations for building trust in the Government’s commitment and capacity to move forward with reforms
87. Since one of the aims of transitional justice is to foster trust, the Government should consider other confidence-building measures. For example, the Government should:
(a) Repeal the Prevention of Terrorism Act and promptly replace it with new counter-terrorism legislation that adheres to international best practices. It should also promptly deal with long-standing cases pending under the Act and put in place a procedure to review convictions handed down under the Act that were based solely on the confession of the accused;
(b) Cease the continued harassment and surveillance by security and intelligence personnel of human rights defenders and other social actors, especially women;
(c) Carry out a comprehensive mapping of land occupied by the military and land recently released; produce a strategy with deadlines for restitution and plans for compensating former landowners whose land will not be returned; consider establishing a procedure that does not make the armed forces the sole voice in deciding this question;
(d) Move to terminate military involvement in commercial activities and reduce military presence in those areas, such as the North and East;
(e) Given continued apprehensions about surveillance and security, ensure that the transitional justice process incorporates witness and victim protection instruments and strengthen the existing (but incipient) witness and victim protection scheme.
C. Recommendations on truth-seeking mechanisms
88. Concerning truth-seeking, the Government should publish all reports of previous commissions and make their records and archives available to any future transitional justice mechanism.
89. Concerning the Office on Missing Persons, the Government should:
(a) Ensure that the Office can establish its presence at the provincial and district levels, to facilitate access by victims and their families, as planned;
(b) Require all State institutions to collaborate with the Office;
(c) Enable the Office to strengthen its capacity on crucial skills, including forensic investigations, through training provided by national, regional and international experts;
(d) Support the Office’s plan to incorporate psychosocial support for victims to avoid retraumatization.
90. Concerning the establishment of a truth commission, the Government should:
(a) Ensure that such a truth commission can act as a crucial tool to establish patterns of violations and abuses over many cycles of violence, demonstrating that all communities have victims, and to uncover the root causes of discriminatory practices leading to conflict. This calls for giving the commission a broad temporal scope.Legislation establishing a truth commission should be adopted promptly but with
adequate consultation with civil society;
(b) Ensure the independence of its commissioners and that victims are adequately represented among the commissioners and the commission’s staff;
(c) Ensure support to victims in terms of security and psychosocial services;
(d) Make sure that gender considerations are adequately institutionalized at all levels.
D. Recommendations on justice-related measures
91. Concerning criminal justice, the Government should:
(a) Address the lack of tangible progress on emblematic cases, which points to the serious limitations of the current justice system in addressing human rights violations. Decisive action on these cases could contribute to establishing the justice system’s bona fides regarding human issues;
(b) Strengthen both the current accountability system, which is weak, and any future system of this kind. Many countries have developed such capacities, including in respect of police investigations, forensics and the articulation of prosecutorial strategies. Efforts to reach South-South cooperation agreements to strengthen or develop the relevant capacities should be made immediately;
(c) Ensure that the investigative and prosecutorial functions of the Office of the Attorney General are kept institutionally separate. Consideration should be given to the establishment of an independent prosecutorial authority;
(d) Focus the discussions about accountability on the means and preconditions for the establishment of credible procedures that guarantee the rights of victims and the accused. The truth is that, while the debate about the nationality of judges, which has led to the politicization of the discussions on transitional justice, can generate lots of sparks, the actual record of the criminal justice system in dealing with emblematic cases or cases relating to system crimes continues to be dismal, making the argument that there is no need for international assistance in these hard-to-sustain processes;
(e) Preserve records, information documenting violations and the results of mapping out the existing archives of previous relevant mechanisms.
E. Recommendations on reparations programmes
92. Concerning the Office for Reparations, the Government should:
(a) Support the work of the Office for Reparations, technically, financially and politically. Establishing an office of this kind, given the long history of ad hoc measures, does not guarantee that reparations will actually be made. Making reparations is a mid-to-long-term process that requires a firm, stable and continuous commitment;
(b) In the short run, support the Office’s plan to provide different forms of immediate relief to victims, including psychosocial support;
(c) Learn from previous experiences with reparations in Sri Lanka and ensure that there are no inequities in the design or the implementation of its reparations programme. The sole relevant criterion for gaining access to benefits should be the fact of having suffered a violation, not one’s ethnicity, religion, regional origin or any other factor;
(d) Make sure that there is nothing in the process of accessing reparations that undermines other victims’ rights, including the right to justice;
(e) In making reparations, acknowledge responsibility. Making a link with the work of the truth commission would be useful in this respect;
(f) Make sure that all aspects of the design of such a programme are gender-sensitive and respond to the special needs of women, in particular those who are heads of households, who should be consulted at each step of the process.
93. Concerning land restitution, the Government should:
(a) Carry out a comprehensive mapping of occupied land and, on the basis of its findings, define a strategy with deadlines for the release of land;
(b) Ensure that the Armed Forces retain only land that is strictly necessary for security purposes (narrowly and objectively interpreted);
(c) Ensure that decisions to retain land should not be within the sole purview of the military. A body or procedure should be set up in order to broaden the scope of stakeholders and decision-makers on this issue;
(d) Consider establishing a land commission as a specialized entity able to address the issue of military-occupied private and public land and the multiple conflicting claims over land by communities displaced at different times;
(e) Strengthen its resettlement policy, as there continue to be camps where internally displaced persons have lived for almost 30 years and in conditions that do not befit a middle-income country;
(f) Consult beneficiaries on issues regarding new housing programmes to avoid future problems, including questions about suitability and indebtedness, in particular among vulnerable communities.
94. Concerning memorialization measures, the Government should support memorialization efforts, as these can have a reparative effect provided that they are even-handed and not used by anybody as part of a zero-sum game in which the basic aim is to reaffirm a single-sided narrative. Throughout the country, communities need spaces to mourn and remember those they have lost, especially civilian casualties.
F. Recommendations on guarantees of non-recurrence
95. Concerning guarantees of non-recurrence, the Government should:
(a) Ratify the International Convention for the Protection of All Persons from Enforced Disappearances and enact legislation to incorporate the Convention into the domestic legal system;
(b) The constitutional reform project has been undertaken in part to provide guarantees of non-recurrence and has tremendous preventive and reconciliatory potential. That project should be expanded to achieve the following:
(i) The separation of the investigatory and prosecutorial roles from the State advocacy roles of the Office of the Attorney General and the establishment, for example, of an independent prosecutorial authority;
(ii) Strengthened provisions on the independence of the judiciary;
(iii) The articulation of a bill of rights for all Sri Lankans and the establishment of a constitutional court to adjudicate cases concerning
(iv) The delimitation of functions of the different parts of the security system (armed forces, police and intelligence services) and the establishment of multilayered civilian oversight systems;
(c) Mindful of the constitutional definition of the functions of the security sector’s different components and to contribute to preventing the recurrence of violations: strengthen civilian capacities for defence planning, redistribute functions so that public order and safety is mainly the responsibility of a well-trained and professional police force and external defence is essentially the responsibility of the armed forces, and ensure that the intelligence services report to civilian authorities and are subject to constitutional and judicial oversight;
(d) Rationalize the forces, their structure and composition, including on criteria of ethnic and gender diversity, and provide training in order to improve the forces’ efficacy, strengthen the rule of law and avoid risks of recurrence.
Read the full report as a PDF:A_HRC_45_45_Add.1-EN