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Sri Lanka: Time to Set-up a TRC? – Mark Salter

(intpolicydigest.org 22 Feb 2019) Is Sri Lanka on the path to establishing its own Truth and Reconciliation Commission (TRC)? The answer, at least if Prime Minister Ranil Wickremesinghe is to be believed, is ‘yes.’ Speaking at a recent meeting in Kilinochchi, the wartime capital of territory ruled by the Liberation Tigers of Tamil Eelam (LTTE) during its 23 year-long conflict with government forces, Wickremesinghe suggested that setting up an TRC was now a priority, the aim is to establish a process and mechanism for ‘telling the truth related to the war,’ ‘expressing regret for the past’ and ‘asking forgiveness in order to establish genuine reconciliation.’ Like others before him, too, Wickremesinghe pointed to South Africa as a model for how to design such a process.

Critics will be quick to detect the hand of instrumental politics in this move. With the next Geneva review session of the UN Human Rights Commission now less than a month away, it is indeed tempting to see an announcement of moves to establish a TRC as a sop designed to keep the international community at bay over demands for demonstrable progress on accountability for alleged war crimes. And given the government’s past record of last-minute official announcements prior to UNHRC review sessions, most recently in 2017, with regard to an Office of Missing Persons (OMP), a certain measure of political sangfroid over moves to establish a TRC indeed seems in order.

That said, it’s important to keep in mind that setting up a TRC was one of four core elements of the wide-ranging and ambitious transitional justice (TJ) strategy outlined by then Foreign Minister Mangala Samaraweera at the UN in autumn 2015: the others being the OMP, an Office of Reparations and, most controversially within Sri Lanka at least, a hybrid court to address war crimes allegations.

Samaraweera envisaged an 18-month timeframe for rolling out the new set of TJ instruments. In practice, however, progress on realizing this agenda has been either painfully slow or, in the case of a hybrid court, non-existent. Following seemingly endless debates regarding its mandate and composition, the OMP was finally established in May 2018. To date it has held victim consultations and produced an interim report but not much more, compounding suspicions, notably among the northern Tamil population that bore the brunt of the carnage during the conflict’s final stages – that it will prove to be yet another ultimately toothless official instrument incapable of providing victims with the information they most want: the truth regarding the thousands of civilians and combatants still officially ‘missing’ almost 10 years after the war’s ending.

With regard to an Office for Reparations legislation enabling its establishment finally passed through parliament in October 2018, though there was some criticism of the envisaged mechanism as lacking in independence from government. No doubt at least partially due to the turmoil that descended in the wake of the (ultimately failed) late November takeover attempt by President Sirisena in cahoots with former president Mahinda Rajapaksa, little has been heard of the Reparations Office since, and it remains to be seen what happens once, or if, the Office eventually gets up and running.

Finally, at this juncture moves towards setting up the hybrid court proposed in 2015 appear to be completely stymied. If anything, indeed, things have moved backward, with a succession of government officials, President Sirisena included, lining up over the past few years to voice criticism of everything from international judges’ prospective involvement in a court to the wholesale rejection of allegations of war crimes committed by Sri Lankan armed forces.

In response to this situation, some will argue strongly that unless and until issues of accountability are adequately addressed in Sri Lanka, moves to establish bodies such as a Reparations Office or TRC are little more than window-dressing and should be treated accordingly. A more nuanced position might be to welcome the (limited) progress made to date on implementing the 2015 transitional justice agenda while also urging the government to move forward resolutely on all four pillars.

At the same time it’s important to underscore the fact that in Sri Lanka, as in all post-conflict contexts, there are critical issues of timing, sequencing and balancing what may sometimes appear to be competing objectives in the context of an overall transitional justice agenda. By its very definition, transitional justice implies compromises and as such the delivery of less than perfect outcomes, not least with respect to justice itself. In transitional contexts, in other words, no one, either victors or victims, gets everything they want and/or quite possibly deserve.

On the one hand, there is clearly a fundamental need to avoid the pursuit of what is perceived as ‘victors justice.’ But at the same time, and here’s the rub, if national reconciliation is considered an overriding objective, it may be that some of the victim’s legitimate demands for justice may have to be deferred until satisfying them becomes politically practicable.

In this context, too, there’s a need to bear in mind the political risks potentially involved in pursuing justice. An instructive example in this regard is Croatian General Ante Gotovina. Following a 2001 announcement that the ex-Yugoslavia War Tribunal (ICTY) had issued sealed indictments against him, Gotovina rapidly assumed the status of nationalist symbol and rallying point for all who rejected criticism of Croatian forces’ conduct in the Balkan wars.

In a similar vein, it doesn’t take too much imagination to conjure up the kind of reaction that the indictment or arrest of wartime Sri Lankan military leaders such as Sarath Fonseka or Shavendra Silva might still provoke among the majority Sinhalese population.

The implication and lesson learned from other experiences here is that when framing the transitional agenda, some key aspects of justice may have to wait until such time as a country’s judicial institutions, and in particular its civil-military relations, have undergone the thorough-going transformation necessary for them to be able to deal adequately (and safely) with them. Critically, there is also hope here. For the victims of General Pinochet in Chile, Hissène Habré in Chad, Charles Taylor in Liberia and Sierra Leone, and Radko Mladic in Bosnia, for example, the wait for justice has been a long one. At the wait’s end, however, has come real justice, invisible, tangible form.

In the meantime, it is equally clear that efforts to move the majority population towards acceptance of the need for an honest examination of the wartime past requires clear, resolute political leadership. In other words, precisely what barring a few exceptions has been so signally and disappointingly lacking from the current administration. And with a sequence of elections, provincial, presidential and parliamentary, looming over the horizon, the window for action appears to be getting smaller by the day. Following his announcement of the government’s new TJ agenda in 2015, Mangala Samaraweera placed great store on consultation with the population. While it may have appeared an appropriate mantra at the time, what’s required more than anything else from the government today is action.

Finally, and returning briefly to reconciliation, the Prime Minister’s recent remarks in Kilinochchi suggest two further things that demand closer scrutiny. The first concerns the so-called ‘South African model’ for a TRC. Does such a thing exist and if so, can it be copied or otherwise replicated elsewhere? Certainly its leading figure, Archbishop Desmond Tutu doesn’t think so. ‘There is no handy roadmap for reconciliation,’ he cautioned some years ago. ‘As our experience in South Africa has taught us, each society must discover its own route to reconciliation. Reconciliation cannot be imposed from outside, nor can someone else’s map get us to our destination: it must be our own solution.’

Tutu’s advice thus points away from fixating on South African experience and towards the need for Sri Lankans to identify and articulate their own vision and version of reconciliation. Second, alongside truth-telling about the past Wickremesinghe points to the desirability of ‘say[ing] sorry and reconcile[ing].’

I would argue, however, that forgiveness is neither inherent in or necessary to the notion of reconciliation. What reconciliation does require is: minimally, recognition of the other’s right to exist regardless of what he or she may have done in the past; a future preparedness to co-exist, including with former enemies; and a willingness to (re)build the social relations necessary for a society to function effectively. Forgiveness, while essential to some and certainly a notion deeply embedded in the Judaeo-Christian tradition, is at root an individual act that cannot and should not be legislated for as part of an approach to reconciliation and transitional justice.

For reconciliation to ‘work’ in Sri Lanka the first task is to establish a solidly-anchored localized understanding of what the term implies. And in doing this, crucially the country needs to draw on its own key religious traditions – Buddhist, Muslim, and Hindu as much as Christian. Exactly what that understanding entails will require further exploration. Indeed should it be established in the coming months, one of the first things a TRC could usefully do is to undertake precisely such a broad-based, consultative inquiry. By doing so it would help to ensure that any concerted effort to promote a process of truth-telling and reconciliation is firmly anchored in an authentically Sri Lankan roadmap.


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