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Sunday, June 16, 2024

The Political Challenge of Carrying the People Through Transitional Justice

by Jehan Perera

President Maithripala Sirisena’s rejection of foreign involvement in the judicial accountability process in Sri Lanka has once again brought to the fore the difficult issue of war crimes in the course of the war. The most controversial aspect of the UN Human Rights Council resolution that was co-signed by the Sri Lankan government last October was the need for international participation in the judicial accountability mechanism. The UNHRC resolution stated that it “affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and 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 authorised prosecutors and investigators.”

It was the issue of accountability for war crimes and other serious human rights violations that from 2009, the very year that the war ended, pitted the Sri Lankan government against the Western –led international community. The position of the former government was one of total rejection of any international role in looking at the past. The former government claimed that no war crimes had occurred and, in any event, the war was an internal one and the international community had no role in deciding how to deal with issues that had arisen from it. However, the government failed to impress enough members of the UN Human Rights Council, which ensured that Sri Lanka faced repeated defeats when it came to the passage of resolutions that called upon the Sri Lankan government to delve credibly into the past.

In the face of the deadlock in positions of the government and UN Human Rights Council, the question was when the Western-led international community would impose punitive sanctions against the Sri Lanka. Travel bans on Sri Lankan leaders and economic sanctions became possibilities. Both of these sanctions were put into effect to some degree. Military personnel who had been accused of committing war crimes were denied visas to attend training programmes abroad. The loss of the EU’s GSP Plus tariff concession was a major blow to the garment industry which was the second biggest earner of foreign exchange to the country and resulted in the closure of hundreds of small factories. The EU cited Sri Lanka’s failure to meet human rights conventions relevant for benefits under the scheme. If the country is to regain these benefits it will be necessary for the government to show satisfactory progress in meeting its human rights obligations.


The decision of the National Unity Government led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to co-sponsor the resolution of the UN Human Rights Council has eased the pressure on the government in terms of its international relations. There is now an optimistic expectation that the GSP Plus tariff concession would be obtained on an expedited basis. Members of the international community, most notably from the United States, have been making very supportive public statements. However, the government has had to face the negative fallout of co-sponsoring the UN Human Rights Council resolution domestically. The opposition has taken it to task for having betrayed the soldiers who fought and won the war. The opposition has the advantage as most Sri Lankans are not conversant with international law. They are able to make speculative statements and give a worst-case scenario of what might happen in the future.

It is in this context that President Maithripala Sirisena has given several interviews to the media stating that the government will not accept international involvement in the judicial accountability process. He has said that that Sri Lanka’s legal system, its judges and prosecutors, have the requisite skills and qualifications and there is no need for international involvement. He has also said that there were no war crimes committed in Sri Lanka, although there were human rights violations. However, the report from the United Nations Office of the High Commissioner for Human Rights made the point that the war was fought so aggressively that as many as 40,000 civilians may have perished in the last phase of the war. It also stated: “If established before a court of law, many of these allegations would amount, depending on the circumstances, to war crimes and/or crimes against humanity.” It appears that the President’s interest is on minimizing the negative political fallout of the UN process within the country, as the great majority of Sinhalese people are opposed to international involvement in this issue.

A domestic process of judicial accountability that has no international involvement will not be acceptable to the great majority of Tamil people who were the main victims of the last phase of the war. Neither they nor the influential Tamil Diaspora would be prepared to accept a purely domestic process due to the poor track record of investigations and prosecutions of the past. A recent statement issued by Northern civil society groups, and signed by activists and organizations also from the South of the country states that “Lack of legal and judicial response in the face of continuing violations including torture, arbitrary detention, unlawful arrest and sexual violence do not inspire confidence in the local judiciary. Further, a backlog of thousands of cases remains unaddressed, with very few arrests and convictions in response. Hence international participation in transitional justice processes including criminal prosecutions becomes an important element to win the trust and confidence of the victim communities.”


However, in the wake of President Sirisena’s rejections of international participation in the accountability mechanism, Prime Minister Ranil Wickremesinghe has reaffirmed the government’s commitment to honoring the pledges made in Geneva when it co-signed the UNHRC resolution. The mixed signals being given on the issue of the implementation of the UNHRC resolution is an indication that the response to it is continuing to evolve. The basic parameters are the need for the government to take the majority of the population along with it on the journey of transition from war to peace, and also to meet international standards whilst doing so. There are options for the government to consider in relation to international involvement, such as having international advisors, observers, or having international prosecutors and investigators to work in teams with Sri Lankan counterparts to obtain the evidence necessary to take to a court of law. At the same time it is also important for the government to seek to strengthen its credibility with the Tamil people by improving their lives on the ground in tangible ways.

The people living in the North and East believed that the removal of the previous government would lead to their lost rights being returned to them. They thought that the change of government would lead to an immediate return of their land and their loved ones to them. There is also a need to give people a sense of what is realistic in the political context of the present and that politics is ever the art of the possible. But everywhere in the north and in the east are people who have lost their lands and their loved ones and are waiting to get them back. They believed that the government for which they gave their vote overwhelmingly would return their land to them and they are dismayed it has not. They would like the government to treat the former LTTE cadres and supporters in the manner in which the government treated the JVP cadres and supporters after the insurrection was over, and without incarcerating them for years without trial and without hounding them thereafter. They see themselves as disempowered Tamil people awaiting justice from Sinhalese governments which is not a healthy state of being. But they are ready to engage and I saw this at workshops on transitional justice organized by the National Peace Council in Jaffna and Trincomalee last week.

The workshops were attended by the more educated strata of society. These are the thinkers and opinion shapers. They have the ability to learn and to influence the larger society. I was struck by their moderation which to me indicated their desire to engage. This does not mean that there is no sense of burning grievance within. In fact it surfaced in the interventions of some of the participants. These educational events are important because there are a lot of misconceptions about transitional justice, which is the process of taking a country from war and mass violations of human rights to sustainable peace. Most people in the country see it as being about accountability and punishment for war crimes. This leads to false expectations on all sides.

There is a need for people to learn that transitional justice is a more holistic concept, and includes truth seeking, reparations and institutional reform also. Also that in truth seeking, that there are many truths, and many stories and not only those of Tamils, but also of Sinhalese and Muslims. This calls for a mass education campaign that is led by the government. The liberals in the government must not remain silent and permit the hardliners in the larger national polity to take the centre stage, but must actively champion the cause of transitional justice and not leave it to the Prime Minister alone to make corrective statements.

– Courtesy The Island


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