Sri Lankas transitional justice: Genuine move or

red herring?
Sri Lankan prison officials escort Tamil journalist J. S. Tissainayagam-The award was presented to Tissa by Gwen

Ifill, senior correspondent for "The PBS NewsHour."

Sri Lankan Foreign Minister Mangala Samaraweera. Pic: AP.

by JS Tissainayagam -28th November 2015

SRI LANKAS Foreign Minister Mangala Samaraweera met with civil society
organisations (CSOs) on October 29 to discuss public consultations for
setting up a transitional justice project to deal with the mass atrocities
committed during the countrys civil war. Despite this seemingly democratic
practice, questions remain as to whether in its implementation this project
is going to shortchange the worst affected the wars victims.
Sri Lankas civil war between the majority Sinhalese and numerically
smaller Tamils killed over 100,000 people. It came to an end in May 2009
with the military defeat of Liberation Tigers of Tamil Eelam (LTTE) rebels in
the hands of Sri Lankas military. Both the military and rebels are accused of

committing war crimes.

At the UN Human Rights Council (UNHRC) sessions this September, the
Office of the High Commissioner for Human Rights investigation on Sri
Lanka (OISL) in a report confirmed that Sri Lankas military and LTTE had
violated international human rights and humanitarian laws.
In the interest of accountability and reconciliation in Sri Lanka, the OISL
recommended a comprehensive approach to transitional justice
incorporating the full range of judicial and non-judicial measures, including
hybrid special courts, integrating international judges, prosecutors,
lawyers and investigators accompanied by broader transitional justice
measures, including truth-seeking and reparations, to ensure the right of
victims to redress
The six years since the civil war ended has seen growing distrust between
authorities of successive Sri Lankan governments who have
vehemently resisted efforts to put on trial their political and military leaders
accused of war crimes. Tamils have not only demanded the accused face
judicial prosecution,but that the court be a fully international judicial
mechanism to prevent Sri Lankan judges unfairly exculpate Sri Lankan
leaders.
This September, the UNHRC also passed a resolution to facilitate
implementing the OISL recommendations. The resolution was criticised
because it did not go as far as the OISL report in demanding accountability
for violations from Colombo.

Sri Lanka has a national unity government where the two principal

parties that were implacable enemies in the past have come

together in an uneasy coalition.
Following the UNHRC session, Sri Lanka, while pledging not to haul its
military before any tribunal for war crimes, took steps to operationalise
some aspects of the resolution. One such step was the October 29 CSO
meeting on consulting victims about the design of transitional justice, which
Samaraweera addressed.
A government agreeing to consult the victims on transitional justice in the
planning stages of the project appears democratic and inclusive. But how
committed is the Government? If the victims reject structures of the
transitional justice project already outlined by the Government will they be
modified? Or is it a red herring to distract the public and the international
community because Colombo has no intention of modifying the basic
structure it laid out at the UNHRC sessions?
This article will examine this question from three sides: a) the role of the
foreign ministry/minister in a project that should be spearheaded by the
ministry of justice, b) the de-emphasis of the judicial mechanisms in the
Governments proposals for accountability in favour of truth-seeking,
reparations and guarantees of non-recurrence and, c) a militarised
environment in the North and East of Sri Lanka, which is not conducive for
implementing transitional justice measures.
Why is Samaraweera, the foreign minister, whose main job is to safeguard
Sri Lankas interests internationally, championing the task of consulting
victims on transitional justice, which is an internal affair? His role at the
UNHRC and explaining the countrys positions on transitional justice to
foreign governments are indisputable. But consultation with victims on the
subject is surely the task of the ministry of justice? More interesting, Justice
Minister Wijeydasa Rajapakshe and officials of the Attorney Generals

Department have remained largely silent on the subject.

This is all the more alarming because of a lack of collective cabinet
responsibility. Sri Lanka has a national unity government where the two
principal parties that were implacable enemies in the past have come
together in an uneasy coalition. This has manifested in open clashes
between members of the cabinet on important national security and foreign
policy issues.
The CSOs have no guarantee that if the ministry of justice and other arms
of the Government takeover running the transitional justice project they will
continue to respect the inputs of the victims. As pressures build up from
Sinhala nationalist forces to dilute aspects of the transitional justice project,
the ministry of justice could very well repudiate the work of the foreign
ministry because the latter is really not authorised to do it.

It appears that transitional justice will probably unfold in a

repressive, militarised Sri Lanka.
Second, Samaraweeras speech at the CSO meeting in outlining the
transitional justice project was rather skimpy on details on bringing
perpetrators to justice. He said, This is one of the more controversial
areas, which we have to go into fully before the final architecture is agreed
upon. Samaraweera mentioned a judicial mechanism of a Special Counsel
to be set up by statute, the victims right to fair remedy and the importance
of addressing impunity but he did not give any details. He was however
much more forthcoming on other aspects of transitional justice the right
to truth, reparations and non-recurrence.
The civil wars victims and CSOs have been critical of the Government for
under emphasising the inclusion of international judges and prosecutors in

its transitional justice project. The Tamil Civil Society Forum pinpoints this in
a note circulated at the 29 October meeting.
While prosecutions are clearly important for the CSOs, can they insist that
judicial and prosecutorial elements be mainstreamed in the transitional
justice project? Greater emphasis on these elements will mean modifying
the structure and institutions outlined by Samaraweera. But Samaraweera
made a pointed reference in his address that there is very little likelihood
for changes in the basic structure.
He said that the government has set out initial ideas (on transitional
justice) which are reflected in the HRC resolution and that could be the
starting point.
Finally, it appears that transitional justice will probably unfold in a
repressive, militarised Sri Lanka. The new government is involved in
carrying out discussions on transitional justice mechanisms. The
militarisation needs to be eliminated in order for the affected people of the
North and East, including the families of the disappeared to participate
freely in these national consultations, reads a statement circulated to the
by members of Eastern Civil Society organisations to the visiting UN
Working Group on Enforced and Involuntary Disappearances (UNWGEID).
Although Samaraweera acknowledged that Government has responsibility
(ensuring security) to take necessary measures to ensure freedom of
movement, peaceful assembly and expression, this has failed to happen.
Just two weeks after his promise, UNWGEID referred to threats and
intimidation of families of the disappeared that had met the
UNWGEID, during a press conference on November 18.
Therefore, although the Government consulting victims on some aspects of
transitional justice mechanisms appears democratic and inclusive, the way

Colombo is setting about it gives little confidence that it is prepared to

incorporate victims needs and wishes if they go contrary to its own target
and objectives. Nor is the Government going to demilitarise areas to make
them more benign to implement transitional justice. This raises the
question whether consultations and other promises of inclusivity are a red
herring to lull the public and international community into a false sense of
hope while the Government goes ahead undeterred to implement a version
of transitional justice unhelpful to victims.
Posted by Thavam