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Security Forces in Sri Lanka Continue

to Operate With Impunity


Yasmin Louise Sooka, the Executive Director of the
Foundation for Human Rights in South Africa and the
International Truth and Justice Project (ITJP) spoke to The
Wire about Sri Lankas transitional justice process, the
sequencing of judicial mechanisms for the same and the
role other countries can play.
Yasmin Sooka is regarded as a leading human rights
lawyer, activist and an international expert in the fields of
transitional justice, gender and international war crimes.
She previously served on the UN Secretary-Generals
Panel of Experts on Sri Lanka.
Internationally the approach towards Sri Lanka has
shifted 180 degrees
This level of militarization is unacceptable eight years
after the war
Reform is urgently needed for Sinhalese and Muslims
as well as Tamils
Any transitional justice process, if it is to succeed
must be locally owned by victims; not politicians
This interview has been edited lightly.

Could you tell us a little bit about ITJPs work?


2017-03-14

ITJP documents human rights violations and abuses as well as


gathers evidence for the purposes of building a prima facie basis
for criminal trials and truth recovery processes. In addition, the
ITJP also carries out transitional justice work including the training
of CSOs (Civil Society Organisations). The key elements of our
documentation and evidence gathering include taking detailed
witness statements from survivors of war crimes, torture,
arbitrary detention, abductions and sexual violence. Our
statements are supported by medico-legal reports. Typically,
taking a statement may take between three and four days to
complete, with statements running into many pages supported by
exhibits like maps, sketches of cells and forensic reports. To date,
we have taken 240 statements, which means we have one of the
biggest databases of in-depth testimonies attesting to recent Sri
Lankan human rights violations and abuses. The evidence
gathered constitutes a basis for an independent investigation as
in many instances we have identified several alleged perpetrators
in the military and police. We hope one day a credible
international independent investigative unit with an independent
prosecutor will be set up so that the people of Sri Lanka can
discover the truth.
The evidence gathered also provides the basis for a submission to
the Truth Commission in Sri Lanka if it is ever established and will
expose the violations perpetrated by the security forces. Of
course we have pointed out in our recent publication Putting the
Wolf to Guard the Sheep all of these depend on witness
protection for the witnesses.

Its been more than two years since Maithripala Sirisena


was elected President. How much has changed in Sri
Lanka since January 2015?
Internationally the approach towards Sri Lanka has shifted 180
degrees. Where once there would have been intolerance and
frustration with the Rajapaksas, now there is patience and a
willingness to give more time. In terms of the situation inside the
country, clearly the atmosphere has eased and activists have
more space in which to function, the Human Rights Commission
has credible leadership but still lacks capacity and generally civil
rights have improved in the south. However in the former conflict
areas, Tamil civilians live under a militarised and securitised
system in which surveillance and intimidation constitute everyday
life. The violations and abuses are ongoing and include
abductions, torture and sexual violence which the ITJP
unfortunately continues to document once the victims flee the
country. This level of militarisation is unacceptable eight years
after the war. It also demonstrates that the security forces
continue to operate with impunity.

In terms of fulfilling its transitional justice commitments,


how would you describe the governments performance?
The Maithripala Sirisena government came to power amidst great
hope and goodwill for transformation particularly from Tamil
citizens who voted for this government. Shockingly we have
witnessed two years of inaction. We have argued that the Sirisena
government is complicit in the ongoing violations and abuses
because it has done nothing to investigate the very grave
allegations of system crimes set out in the (UN Office of the High
Commissioner for Human Rights) OHCHR Investigation report
(OISL).
The emphasis has been on procedures, rhetoric and box-ticking
but what this government has failed to do is to set out a clear
vision of why Sri Lanka needs a transition from the past. The
government has also failed to impress upon society in the south
that this is necessary if Sri Lanka is to take its place proudly in the
international community. The transition is necessary to transform
Sri Lanka from a state mired in serious violations and abuses
which quite frankly amount to war crimes and crimes against
humanity in which its criminal justice institutions have been
tarnished. While there is a great deal of glib talk about
reconciliation; it is extremely shallow as reconciliation involves a
reckoning and an acknowledgement of the truth about the past
including past violations. In reality, what we have witnessed is
denial from the politicians and many in civil society about the
extent of mass atrocities perpetrated by the security forces. What
we have is a structural and institutional problem in the country
which unless addressed will result in ongoing violations and
abuses as we know is happening. Reform is urgently needed for
Sinhalese and Muslims as well as Tamils.
"It is false to portray the demand for criminal
accountability as an international demand this is done
by those who want to avoid it because they have
something to hide"
In terms of the transitional justice process, we all heralded the
national consultation process which took a long time and was
perceived as doing the job. When it was farmed out to NGOs we
stifled our criticism. It is precisely this farming out of a function,
which the government ought to have led, which has allowed the
president and prime minister to disown the recommendations,
leading many to ask whether the government is serious about the
transition. Sadly civil society and many political parties were also
duped into believing that the government was sincere in its
commitments and now to their cost they are discovering
differently.
Legislation establishing the Office of Missing Persons (OMP) was
passed last year. However the chaos and confusion regarding the
text in parliament has seen nothing happen. Six months later
there is no body established. Best international practice around
appointments indicate the need for a transparent vetting process
for the selection of persons to run the OMP and any other
transitional justice mechanism; rumours abound that the
government intends to appoint mainly Sinhalese persons to head
a body that will primarily deal with Tamil disappearances.
Consideration should be given to appointing Sinhalese, Tamils and
Muslims in order to inspire confidence and trust amongst the
families of the disappeared. An open nomination and vetting
process would ensure that affected communities have the
opportunity to nominate people they consider credible particularly
those amongst them who have spent a great number of years
working on issues of the disappeared. A number of Tamil activists
including priests spring to mind as they have risked their lives
over years to collect lists of the disappeared.

How involved should international actors be in Sri Lankas


transitional justice process?
Any transitional justice process, if it is to succeed, must be locally
owned not by the elites and the politicians but by the victims.
However decades of violations and abuses as well as
disillusionment with the government and its institutions have left
many, if not all Tamil victims and witnesses, deeply distrustful.
Many have indicated that if they are to testify to a truth
commission or court there needs to be meaningful international
involvement in that body to win their trust. A credible domestic
mechanism is a contradiction in terms. They have all failed; why
would things be different now when whats at stake is the
investigation of even greater crimes than in the past. This is
compounded by the fact that no witness protection exists and
whether a witness is in Sri Lanka or abroad there needs to be
international involvement in any witness protection programme.

Theres been some debate surrounding the sequencing of


transitional justice mechanisms. What do you think would
be the most effective approach?
In many countries politicians and elite always try to argue that
there should be sequencing not just of the mechanisms but also
many argue a peace versus justice option. The issue of
sequencing is largely dependent on the context in a particular
country. In the Sri Lankan context, one already has the outcome
of the OISL inquiry as well as the evidence gathered by groups,
including the ITJP, which provides a basis for any criminal
accountability mechanism to carry out its work. At the same time,
this should not preclude other mechanisms like the truth
commission and the OMP from doing their work. This has
happened in many countries, including Sierra Leone and Colombia
would soon see a plethora of transitional justice mechanisms
operating side by side.
Of course, what has to be worked on is the relationship between
these mechanisms to optimise resources and access to
information. However, given the different purposes, written into
the mandate of the truth commission should be the obligation to
name names and pass this onto the criminal justice mechanisms
as well as to refer the cases of the missing and the disappeared to
the OMP. A lesson that we all learnt from the Sierra Leonean
experiences which saw a truth commission operating side by side
with the special court is that there should be guidelines on the
relationship between these bodies if they are to be successful and
achieve their respective mandates.
Some people have argued that accountability for wartime
abuses should be de-prioritised in favour of a political
solution to the long-standing ethnic conflict. Relatively,
others have asserted that economic justice should be
front and centre, and that the call for accountability is
actually driven by international actors. Whats your take
on all of this?
In the Sri Lankan context, a political and economic solution to the
conflict is absolutely essential. However, this does not preclude
that accountability and addressing entrenched impunity for
serious crimes is equally important. The scale and gravity of the
crimes perpetrated in 2009 against civilians demands justice.
Listening to the traumatised survivors as I did on the UN Panel of
Experts as well as the many courageous individuals who stayed
behind in the war zone, it is obvious that these are extraordinary
crimes for which there must ultimately be accountability.
"A tough, honest report by the High Commissioner
assessing Sri Lankas lack of good faith in implementing
Resolution 30/1 with the Council setting clear benchmarks
and time frames for the full implementation of all
commitments, including essentially the foreign and
commonwealth judges, investigators and prosecutors for
the court which must be hybrid not domestic"

In my view it represents one of the great tragedies of our time


that tens of thousands of civilians were killed in a matter of weeks
in a tiny area of the country without the international community
intervening this challenges the entire regime of international
humanitarian law and the very notions of decency on which the
responsibility of the international community is built. The world
cannot let this slip. Nor could the Sri Lankans. In my work in South
Africa and Sierra Leone as well as many other parts of the world,
political change is important as is economic transformation but
bitter experience has taught me that the guarantee of non-
recurrence requires measures of accountability particularly
prosecutions of those who were in command responsibility
positions.
Victims also require institutional reform in order to regain trust in
the institutions of the state believing that they will work for them
irrespective of their religious belief, ethnicity, race and group. In
many countries the politicians argue that victims need
development rather than reparations and we remind them that
every citizen is entitled to development, but the recognition of the
wrongdoing suffered by a victim demands acknowledgement and
reparations. They need to eat but not at the expense of justice.
Both the national consultations as well as the various
consultations which were carried out outside of the country have
indicated that justice is critical and for victims this means holding
the perpetrators criminally accountable. It is false to portray the
demand for criminal accountability as an international demand
this is done by those who want to avoid it because they have
something to hide.

The 34th session of the UN Human Rights Council runs


from February 27 to March 24 and Sri Lanka is on the
agenda. What would you like to see happen?
A tough, honest report by the High Commissioner assessing Sri
Lankas lack of good faith in implementing Resolution 30/1 with
the Council setting clear benchmarks and time frames for the full
implementation of all commitments, including essentially the
foreign and commonwealth judges, investigators and prosecutors
for the court which must be hybrid not domestic. OHCHR has
been very clear that a domestic process will not work we would
like to see them impress this point on the international
community more forcefully.
Posted by Thavam