A TOOLKIT FOR

REPARATIONS
BUILDING AN EFFECTIVE AND VICTIM-CENTRED POLICY FOR SRI LANKA
Acknowledgments
We are grateful to Ramya M Vijaya, Professor of Economics, (Stockton
Univeristy, New Jersey) for her valuable contribution to this report through
the economic analysis component. We are thankful to Cristian Correa
and Eduardo Gonzalez for their thorough review of the manuscript and
substantial input and Visaka Dharmadasa and Shreen Saroor for their
review of the report and valuable feedback.

We are grateful to Louise Dargan for her support in the initial structuring
of the report and to Shruthi De Visser for her research, input and drafting
of the report. We are also thankful to Nadeshda Jayasinghe for reviewing
and providing input and to Esther Hoole for her contribution in drafting
and reviewing the final manuscript.

This publication was made possible This research was made possible
thanks to the research support provided by the generous funding of the
by Benjamin B Ferencz Human Rights and Canadian Fund for Local Initiatives
Atrocity Prevention Clinic, Cardozo Law.
Table Of Contents
Introduction 4
I. The Office for Reparations 5
II. Importance Of And Prospects For Reparations 5
III. Aim And Scope Of This Report 6

CHAPTER ONE
The Structure, Powers And Functions Of The Office For Reparations 8
I. Structure Of The Office For Reparations 9
1. Appointments 9
2. Criteria 10
3. Location and Outreach 11
II. Powers And Functions Of The Office For Reparations 12
1. Formulating Reparations Policies 12
2. Sourcing And Confirming Applications 13
3. Implementing Reparations Processes. 14
4. Creating Centralized Databases 14
5. Facilitating The Work Of Other Institutions Providing
Some Form Of Reparations 14
6. Ensuring The Effective Functioning Of The Office 15
7. Ensuring The Well-Being Of Persons Seeking Reparations 16

CHAPTER TWO
Devising & Implementing Policies On Individual Reparations 18
I. Determining Eligibility For Reparations 19
1. Identifying Beneficiaries 19
2. Prioritization Of Beneficiaries 26
II. Types Of Individual Reparations Measures 30
1. Overview Of The Socio-Economic Status Of
Affected Communities In Sri Lanka 30
2. Determining Types Of Individual Reparations 34
3. Guarantees For Long Term Implementation 42
III. Implementation Of Individual Reparations 44
1. Consultations and Outreach 44
2. Designing The Reparations Process 45
3. The Information Needed For Registration 46
4. Designing The Registration Form 47
5. Receiving Applications For Reparations 47
6. Victims’ Representation And Intermediaries 48
7. Registration period 49
8. Verification And Standards Of Evidence 49
9. Documentation 50
10. Ethics And Due Process 51
11. Transparency And Communication With Applicants 52
12. Decision On The Application 53
13. Rejection Of Application 54
CHAPTER THREE
Policy on Collective Reparations 56
I. Types Of Collective Reparations 58
1. Memorialization 58
2. Development of Infrastructure 59
3. Educational, Training and Skills Development Programmes 60
II. Comparative Experiences 61
1. Peru Collective Reparation Program For
1980-2000 Internal Armed Conflict 61
2. Morocco Collective Reparations For The 1956-1999 “Years Of Lead” 62
3. Aceh: Community-Based Reintegration Assistance
For Conflict Victims Program 62
4. Colombia: Collective Reparations For Armed Conflict 63
III. The Case For Collective Reparations In Sri Lanka 65
1. Understanding The Context 65
2. Economic Considerations 66
IV. Designing A Policy On Collective Reparations 68
1. Defining The Types Of Collectivities 68
2. Selecting Collectivities 69
3. Methodology 70
4. Submission Of The Policy To Cabinet And
Assessment Of The Approved Policy 71

CHAPTER FOUR
Nature Of Assistance And Welfare Services 73
I. Identifying Victims For Receiving Support Or Assistance 74
II. Determining The Form And Quantum Of Assistance 74
III. Risk Of Confusing Assistance For Those In Need And Reparations 74
IV. Types Of Assistance And Institutional Frameworks For Their Implementation 74
V. General Referral 75
VI. Provision Of Specialized Care 76
VII. Interim Reparations 78

Conclusion 80
I. Individual vs Collective Reparations 80
II. Individual reparations policy 81
III. Collective Reparations Policy 81
IV. Interim measures 82
V. Reparations In Sri Lanka And Other Transitional Justice Mechanisms 82
6

Introduction
In May 2009, Sri Lanka emerged from an armed conflict that lasted almost thirty years. The
parties to the conflict were chiefly the Sri Lankan armed forces and the Liberation Tigers of
Tamil Eelam (LTTE), with the sporadic involvement of paramilitary groups. All parties to the
conflict face credible allegations1 of serious violations of international human rights and
humanitarian law possibly amounting to international crimes. The alleged violations include
– but are not limited to –indiscriminate and disproportionate attacks on civilians, large scale
enforced disappearances, systemic torture, forced recruitment of child soldiers, land grabs
and deprivation of humanitarian assistance.

Successive Sri Lankan governments have largely failed to investigate allegations of

systematic and widespread violations by the armed forces and armed groups supported
by the State. When measures were taken to deal with these allegations,2 they have been
sporadic, ineffective, and lacking in legitimacy.

In 2015, a coalition government acceded to power, after a new president was elected on a
good governance and reform platform. Shortly after taking office, the coalition government
co-sponsored Human Rights Council Resolution 30/1,3 pledging among other reforms, to
implement a transitional justice process. This included commitments for the establishment
of a Truth and Reconciliation Commission, an Office for Missing Persons, a judicial mechanism
with special counsel, and an Office for Reparations. This process aimed to holistically deal with
the legacy of grave human rights violations, political repression and mass atrocity crimes.
However, despite these commitments, the government failed to set up and implement the
full range of mechanisms. In the four and a half years since the adoption of Resolution 30/1,
only two transitional justice mechanisms were established: The Office on Missing Persons
(OMP) and the Office for Reparations.

1      Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (31 March 2011) <https://www.securitycouncilreport.org/atf/cf/%7B65B-
FCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/POC%20Rep%20on%20Account%20in%20Sri%20Lanka.pdf > accessed 20 January 2020. See also, UN
Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), 16 September 2015, A/HRC/30/CRP.2 <https://www.refworld.org/do-
cid/55ffb1d04.html> accessed 30 December 2019.
2      Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011)<http://slembassyusa.org/downloads/LLRC-REPORT.pdf> accessed 20
January 2020; Report on the Second Mandate of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances (Paranag-
ama Commission Report) <https://www.colombotelegraph.com/index.php/maxwell-paranagama-commission-report-full-text/> accessed 20 January
2020; Report of The Commission of Inquiry Appointed to Investigate and Inquire into Alleged Serious Violations of Human Rights Since First August 2005
(Udalagama Report) <https://847da763-17e4-489f-b78a-b09954fec199.filesusr.com/ugd/bd81c0_bc8695addf4e4a6688abb3e30a5a36e5.pdf> accessed 20
January 2020.
3     UN Human Rights Council, Promoting Reconciliation, Accountability and Human Rights in Sri Lanka : 14 October 2015, A/HRC/RES/30/1; UN Human
Rights Council, Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, 23 March 2017, A/HRC/RES/34/1;UN Human Rights Council, Pro-
moting Reconciliation, Accountability and Human Rights in Sri Lanka, 21 March 2019, A/HRC/RES/40/1.
 7
In 2016, Parliament passed the Act on the Office on Missing Persons (OMP).4 As of now, the Office
on Missing Persons has been operationalized and has made credible – albeit insufficient –
strides in fulfilling its mandate, despite opposition and a volatile social and political climate.
The Office for Reparation was created in 2018 by the Office for Reparations Act (hereinafter
the Reparations Act).

I. The Office for Reparations

The Office for Reparations is the first of its kind in Sri Lanka - with no limitation on its temporal
and geographical mandates, and broad personal and material mandates.5

In June 2017, the Bill titled Office for Reparations was gazetted.6 This constitutionality of this Bill
was challenged, and in July 2017 the Supreme Court ordered amendments to the draft.7 On
October 10th 2017, Parliament passed the Office for Reparations Act, No. 34 of 2018.8 As with the
broader national discussion on transitional justice and accountability for alleged international
crimes and violations of international human rights and humanitarian law, the debate on
an office for reparations was extensive and heated. Opponents of such an office used the
arguments that a reparations policy would benefit members and former combatants of the
defeated militant group,9 that the process would be an attack on the heroism of the Sri Lankan
military, and that this was another instance of international influence undermining Sri Lankan
sovereignty.10 On April 1st 2019, upon the recommendation of the Constitutional Council, the
President appointed 5 members to the Office for Reparations. The Office for Reparations is still
in the process of becoming fully operationalized and is yet to formulate reparations policies.

II. Importance Of And Prospects For Reparations

Although political will for Transitional Justice was high in 2015, it waned significantly since then,
leading to long delays and ineffective implementation of the government’s transitional justice
commitments. With the presidential election bringing the former regime back into executive
power, the establishment of a truth commission or a credible accountability process seems
compromised.

4      Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016, [The Act establishing the Office on Missing
Persons].
5      Other similar institutions are Rehabilitation of Persons, Properties and Industries Authority (REPPIA) established by the Rehabilitation of Persons, Proper-
ties and Industries Authority Act, No. 29 of 1987. and Northern Province Resettlement and Rehabilitation Authority.
6      Office for Reparations Bill <https://www.parliament.lk/uploads/bills/gbills/english/6107.pdf> accessed 20 January 2020.
7      In the matter of an application under Article 121 in respect of the Bill titled ‘Office for Reparation’ S.C. S.D. 20/ 2018, S.C. S.D. 19/ 2018 <https://www.parlia-
ment.lk/uploads/bills/scdet/6107.pdf> accessed 31 December 2019. These amendments will be discussed in-depth on Chapter 2 Part I
8      Office for Reparations Act, No. 34 of 2018 [The Act establishing the Office for Reparations].
9      For instance, former members of the LTTE.
10     ‘Flickering Hope; Truth, Justice, Reparation and Guarantees of Non-recurrence in Sri Lanka’, Amnesty International (2019). See generally, Meenakshy
Ganguly, ‘Transitional Justice Efforts in Sri Lanka Fall Short’ (Daily FT 20 September 2018) <http://www.ft.lk/opinion/Transitional-justice-efforts--in-Sri-Lanka-
fall-short/14-663159> accessed 30 December 2019.
8
Furthermore, the sentiments expressed by the new President, and the profiles of his political
appointees indicate that the Office on Missing Persons is now at risk of being shut down or
rendered ineffective.11 In such a context, it is crucial that this institution, as well as the Office for
Reparations, use the time and resources currently afforded to them to ensure that they are
stable, with decided policies and positions.

Interestingly, in Sri Lanka, reparations are regarded as the transitional justice measure that
requires the least amount of political will. As such, this mechanism may be the least affected
by the government’s radical repositioning on the Transitional Justice front. However, in the
event the government fails to deliver on the other Transitional Justice mechanisms, affected
communities may not receive reparation measures favorably. In such a context, reparations
policies must encompass the full gamut of measures including restitution, compensation,
rehabilitation, satisfaction and guarantees of non-recurrence 12 so as to “seek to redress
systemic violations of human rights by providing a range of material and symbolic benefits
to victims” .13 The importance of satisfaction and guarantees of non-recurrence—which
would include tracing the fate of the disappeared, acknowledging the commission of grave
crimes, access to a credible justice process, and reforming laws that fall short of international
standards—cannot be overstressed. Indeed, to single out material reparations while dismissing
these other measures will only belittle victim demands, and further resentment and division.

If the purpose of reparations is to further reconciliation, reform and non-recurrence, discussion

on reparations in Sri Lanka must be underpinned by this holistic understanding of what such
a process requires.

III. Aim And Scope Of This Report

This report aims to outline international best practices on reparations policy and to make
recommendations to the Sri Lankan Office for Reparations to ensure that its work is credible
and that its recommendations for policies are adequate and victim-centric. Accordingly, this
report refers to international guidelines and best practices, and to comparative experiences
in countries such as Peru, Morocco, Colombia, Guatemala and Indonesia. It also incorporates
economic analysis of reparations in conflict-affected communities, as well as the views of
civil society and victim groups in Sri Lanka.

The report is divided into four chapters. Chapter 1 analyses the structure, functions and
powers of the Office under the Act. Chapter 2 discusses the formulation and implementation
of an individual reparations policy by looking at definitions of victims, harms and violations.
Chapter 3 discusses the formulation of a collective reparations policy. Finally, Chapter 4
outlines provisions of support that victims would need while a reparations policy is being
formed.

11      Daily Mirror Online (2020). OMP Act to be reviewed. [online] <http://www.dailymirror.lk/breaking_news/OMP-Act-to-be-reviewed/108-180821#.XhP5ncb-
WHXQ.twitter> accessed 22 Feb. 2020.
12      UNGA Res 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law (16 December 2005).
13      ibid.
 9

TIMELINE ON
REPARATIONS
IN SRI LANKA
1st OCT
2015

4th JAN
2017

25th JUN
2018

26th JUL Supreme Court of Sri Lanka orders amendments to the Bill*.
2018

10th OCT
2018

01st APR
2019
10

Chapter One

The Structure, Powers

And Functions Of The
Office For Reparations
One of the chief threats to the Office for Reparations – and any transitional justice mechanism
– is compromised independence. It is essential that transitional justice mechanisms remain
11
independent of political maneuvering and suppression, particularly since they often deal
with harms carried out by the State. While the Act promotes the appointment of credible
members to the Office and a structure deemed legitimate by victim groups, it grants the
Executive decisive power over the reparations process itself.

The following chapter examines key provisions of the Act on the Office for Reparations relating
to the structure of the office, as well as the powers and functions granted to the Office.

I. Structure Of The Office For Reparations

Sections 3 to 10 of the Reparations Act layout the core structure and administration of the
Office.

1. Appointments
Section 4 provides that the Office for Reparations will consist of five members,14 each being
entitled to a term of three years and to reappointment.15 Appointees must first be nominated
by the Constitutional Council (CC), and then be approved and appointed by the President.16
Similarly, the CC must nominate three names out of the members of the Office for Reparations
to be appointed as the Chairperson. The President may then approve and appoint one of
these individuals.17

This is similar to the procedure on the appointment of members to the Office on Missing
Person,18 and to independent commissions such as the Human Rights Commission and the
Elections Commission.19 The strength of an appointment process led by the Constitutional
Council lies in the varied composition of the Council itself, whose members comprise of
politicians from multiple parties as well as individuals who are not members of parliament.20
This measure shields independent commissions from being subject to political appointments
generally made by the executive, and allows for a more impartial consideration of the merits
of each appointee, along with the concerns and sensitivities of different constituencies.

Observing the demographics of current members of the Office for Reparations and the Office
on Missing Persons, this de-politicized appointment process has resulted in a collection of
members from varying ethnicities, genders and stakeholder groups. Given that transitional
justice mechanisms must be independent and credible, this is commendable.

14      Office for Reparations Act, No. 34 of 2018, s. 4 (1).

15      ibid s. 6.
16      ibid s. 4 (1).
17     ibid s. 4(2) and (3).
18      Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016, s. 4 (1) a.
19      Nineteenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka, Chapter VII A, Article 41 B.
20      ibid Article 41 A.
 Interestingly, however, the provision for appointments to be made through the CC was one
12 of those which were challenged before the Supreme Court. The petitioners claimed that this
violated the Executive’s power to appoint and remove members of institutions. The Supreme
Court ruled against this, referring to Article 41B (2) of the 19th amendment which necessitates
that appointment of members and Chairpersons to the independent commissions be made
via nominations of the CC, and expressly prevents the President from appointments outside
of this procedure. The Supreme Court further commended this procedure, stating:
“Seeking the views of different stakeholders can in no way be offensive to the exercise of the
powers of appointments. In fact, a consultative process will only enhance the quality of the
appointments concerned”,

The fact that this issue was challenged by members of the current regime raises a cautionary
note. The current President and members of his party have consistently supported a strong
Executive, indicating that in the next five years, the independence of human rights and
transitional justice mechanisms will be tested. This threat is exacerbated by the rejection
of transitional justice mechanisms by the President’s party, as well as the possibility that
dependent on the results of the Parliamentary elections in 2020, the 19th Amendment could
be repealed and the democratic oversight of the CC be removed.

2. Criteria
Whether or not they claim to be independent, Sri Lankan State institutions are viewed across
communities as nesting grounds for corruption, nepotism, incompetence and discrimination.
As a result of this, direct victims of the conflict – particularly in the North and East – have a deep-
rooted fear and distrust of such institutions. The CTF Report reflects this in victims’ frustration
at the obvious politicization in past so-called independent commissions. In response to the
strong belief that a domestic process would not be credible, it recommended
“the participation of both international and national persons… ranging from the provision of
advice and expertise to active membership”.21

In line with recommended best practice for independent institutions and transitional justice
mechanisms, the Act on the Office for Reparations provides that 1) the composition of the
members must reflect the pluralism of Sri Lanka’s society,22 and 2) that members must be
persons of integrity with the qualifications and experience necessary to lead the Office for
Reparations.23

When appointing members in line with these provisions, it is vital that the representatives of
key stakeholder groups in the process are represented in the Office. With transitional justice
being a victim-centric process, the representation of the victim community in the leadership
of transitional justice mechanisms is vital – both to shape reparations policies which are
sensitive o the needs of the victims24, as well as to earn the trust of victim communities and

21      Final Report of the Consultation Task Force on Reconciliation Mechanisms- Executive Summary and Recommendations, para 2.10 at 107 <https://wome-
nandmedia.org/ctf-on-reconciliation-mechanisms-final-report-all-volumes/> accessed 31 December 2019.
22      Office for Reparations Act, No. 34 of 2018, s. 4(4)(a).
23      ibid s. 4(4)(b).
24      UN OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programmes (2008) 16.
thereby lend legitimacy to the Office and its functions25. As a constituency that has consistently
worked with victims and campaigned for post-conflict reconciliation and accountability, it
13
is also important that civil society is represented in the Office26. Additionally, the CTF report
notes multiple submissions that members of the military, members of paramilitary groups
and politicians should not be included in the Office for Reparations.27

3. Location and Outreach

The Act specifies that the Headquarters of the Office will be located in Colombo, but that the
Office may open ‘regional, temporary or mobile units’ as needed.28 Given that any transitional
justice process must be centered around and accessible to victims, it will be essential that the
Office does open such regional outposts, as has been done by the Office on Missing Persons.

The same provision also refers to an outreach unit, which is in line with best practices
for transitional justice mechanisms. Indeed, the lack of such a unit can lead to serious
miscommunication and dependence on biased media for information. To build trust amongst
victims, Office must have a direct line of communication with stakeholder communities,
particularly victims. This is one area in which the Office on Missing Persons seems to have
lacked strategy, with no consistent victim-directed communication and transparency, and it
has resulted in increasing resistance to and suspicion of the office.29

In addition to the overall principle that transitional justice mechanisms must be accessible
and transparent, nuanced communication on reparations is further necessitated given
the ease with which it can be misconstrued. Any measure of reparations must always be
accompanied by a public acknowledgement that it aims to redress the specific harm
suffered and with recommendations for broader accountability and reform processes. Else,
it can be construed as a process to buy victims’ future silence on those matters.30 The lack
of an informed outreach programme could result in the Office being viewed as another
rehabilitation or development process, with no commitment to truly addressing the past.

25      ibid.
26      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 93.
27      ibid 93.
28      Office for Reparations Act, No. 34 of 2018, s.10.
29      ‘Sri Lanka’s Office for Missing Persons: Critique by the Tamil Civil Society Forum’ (Sri Lanka Brief, 23 May 2016) <https://srilankabrief.org/2016/05/sri-lankas-
office-for-missing-persons-critique-by-the-tamil-civil-society-forum/> accessed 20 January 2020.
30      For the importance of public acknowledgement, see Ruben Carranza, Cristián Correa et al. ‘More than Words; Apologies as a Form of Reparation’ ICTJ
(2015) <https://www.ictj.org/publication/more-than-words-apologies-form-reparation> accessed 15 January 2020.
14 II. Powers And Functions Of The Office For
Reparations
Under the Act, the Office has two types of powers. Firstly, the Office holds Advisory powers that
primarily relate to the formulation of reparations policies. Secondly, the Office holds executive
powers which chiefly relate to the internal structure and administration of the office, relations
with other organizations, as well as the effective and victim-centered implementation of
approved reparations policies.

1. Formulating Reparations Policies

One of the primary functions assigned to the Office for Reparations is to “formulate and
recommend to the Cabinet of Ministers, Policies on Reparations and guidelines with regard
to the grant of individual and collective reparations”.31 The Act goes on to specify that such
policies and guidelines should include the criteria “for eligibility for aggrieved persons32 to
obtain reparations, including criteria relating to the nature and severity of grievances33
for which reparations will be available,”34 as well as the form and quantum of reparation
measures, eligibility for financial reparation, eligibility for urgent reparation, criteria for the
prioritization of application, bodies to assist in the provision or delivery of various measures,
and recommendations on reparation measures which may be provided by other State
institutions.35

While it is right that such policies and guidelines should be formulated by the Office for
Reparations, the fact that such recommendations must then be forwarded to the Cabinet of
Ministers for review and approval is severely problematic. This was highlighted by civil society
in Sri Lanka when the Bill on the Office for Reparations was released, in a joint statement,36 but
was not addressed.

The Cabinet of Ministers in Sri Lanka is a political institution that is appointed by and falls under
the Executive. To place the core function of the Office for Reparations under the authoritative
purview of the Cabinet of Ministers is to subject the Office to executive control and political
bias, and to shift the Office from being victim-centric to being State centric. Such a process
would be ill-advised in the best situation since reparations policies would then be formulated
with no transparency or accountability.

The situation is far worse, however, when viewed in the light of Sri Lanka’s political ethos
and the demographics of the Executive arm. The Cabinet of Ministers has as a general rule,
stood in line with the policy and narrative set by the President. No government, to date, has
acknowledged that mass atrocity crimes and human rights abuses took place in Sri Lanka

31      Office for Reparations Act, No. 34 of 2018, s.11(1)(g).

32      For further discussion, Chapter 2 Pg 12-15
33      For further discussion, Chapter Pg 12-15
34      For further discussion, Chapter Pg 12-15
35      Office for Reparations Act, No. 34 of 2018, s.11(1)(g) i- vi.
36      ‘Civil Society Raises Concerns with the Office for Reparations Bill’ (Centre for Policy Alternatives, 6 July 2018) <https://www.cpalanka.org/civil-society-rais-
es-concerns-with-the-office-for-reparations-bill/> accessed 20 January 2020.
during the conflict, or ordered the credible investigations of all such allegations. The current
President and his Cabinet, have consistently maintained that the Sri Lankan State has done
15
no wrong, that the military heroically won the war in a ‘zero civilian casualty’ operation, and
that the transitional justice process begun by the former government is an infringement on
Sri Lankan sovereignty. The current President and many of his top political appointees are
also heavily implicated in the alleged crimes and violations surrounding the conflict.

In this context, to grant Cabinet the power of approving or vetoing reparations policy, does
not bode well for an open, legitimate and credible reparations process. On the contrary,
this set up is likely to lead to political negotiations and trade-offs which will distance victim
communities and undermine the integrity of the office, leading to a failed reparations process.

It must also be noted here that the Act also provides that “policies on reparations and
guidelines authorizing disbursement of funds shall be placed before Parliament for
approval”.37 This addition of further political oversight of the functions of the office further
endangers the independent functioning of the Office. It is also unnecessary, given that the Act
provides the Office with a separate fund to be used for the administration of the Office and
the implementation of its mandate.38

One potential route to circumvent this challenge would be for the Office to draft its policies
and guidelines in such language as to rouse the least controversy and resistance. Given the
nature of the harms suffered, however, and the President’s refusal to acknowledge them, this
will be no easy feat.

2. Sourcing And Confirming Applications

The Act provides that the Office for Reparations is mandated to receive direct applications
for reparations. 39 It is also mandated to actively identify those who are eligible to receive
reparations, along with their level of need.40 The Office may also receive recommendations
for reparations from the Office on Missing Persons.41

As part of this process of identifying persons and communities eligible for recommendations,
the Office must develop a clear and consistent methodology to identify the veracity of the
applications.42

37      Office for Reparations Act, No. 34 of 2018, s.22(4).

38      ibid s.16.
39      ibid s.11 (1) b.
40      ibid s.11 (1) c.
41      ibid s. 11 (1) a.
42      The Office has the power under s. 11 (1) b. of the Act to verify the authenticity of applications.
16 3. Implementing Reparations Processes
Upon Cabinet’s approval of the proposed reparations policies and guidelines, the Office for
Reparations must take responsibility for their implementation – both with respect to individual
and collective reparations.43 In the course of this, the Office is mandated to do the following:

4. Creating Centralized Databases

The Act mentions two databases. One database should collate information from other previous
or ongoing State-sponsored reparations process or mechanisms, and the expenditure of such
programmes. This ought to include details of the activities of the Rehabilitation of Persons,
Properties and Industries Authority (REPPIA)44 as well as the Northern Province Resettlement
and Rehabilitation Authority.45

The other database is to contain particulars on all recommendations for reparations made,
including reparations issued by previous State authorities or agencies.46

There seems to be an overlap in these two provisions, and the Office for Reparations will need
to qualify the function of their databases, and to ensure that they are managed appropriately.

5. Facilitating The Work Of Other Institutions Providing

Some Form Of Reparations
Firstly, the Office is mandated to continue the work of the REPPIA. This Authority was set up in
1987, and initially mandated to provide reparations for losses suffered during the ethnic riots
in 1983. This mandate was later expanded to include losses suffered during the conflict.47

Because the Act on the Office for Reparations effectively repealed the Act on the REPPIA, the
Office must also ensure the continuation of programmes implemented by that authority until
they may be discontinued,48 and to consider the claims which were made to that authority
dependent on the resources available for that purpose.49

43      Office for Reparations Act, No. 34 of 2018, s.11(1) h.

44      This was established under the Rehabilitation of Persons, Properties and Industries Authority (REPPIA) Act No. 29 of 1987. It was responsible for imple-
menting the Government’s policy on compensatory relief for persons who suffered loss/damage due to terrorist violence and operations of the Government
Security Forces. It has been the only State institution responsible for compensatory relief for all districts in the country, except for a limited period (1997-
2007) when a second institution, the Northern Province Resettlement and Rehabilitation Authority, was set up and all functions relating to the Northern
Province was shifted to the new agency (see Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011) 245).
45      This body was established by the Emergency (Northern Province Re-settlement and Rehabilitation Authority) Regulations No. 1 of 1966. Its main
functions were to (a) to assist in the resettlement of displaced persons in the Northern Province; (b) to assist in the rehabilitation of displaced persons in the
Northern Province; (c) to assist in the repair, reconstruction or rehabilitation of dwelling houses of displaced persons in the Northern Province among others.
See further, National Legislative Bodies / National Authorities, Sri Lanka: Emergency (Northern Province Re-Settlement and Rehabilitation Authority) Regula-
tions, No. 1 of 1996, 4 January 1996 <https://www.refworld.org/docid/3ae6b50618.html> accessed 19 February 2020.
46      Office for Reparations Act, No. 34 of 2018, s. 11 (1) u.
47      Ministry of Rehabilitation and Reconstruction, Circular No. M/ R and R/ UAS/ MAP/ 1 (26 September 1988) <http://www.reppia.gov.lk/web/images/circu-
lars/M-RandR-UAS-MAP-1.pdf> accessed 20 January 2020.
48      Office for Reparations Act, No. 34 of 2018, s. 11 (1) m.
49      ibid 11 (1) m.
Apart from this, the Act also mandates that the Office must facilitate the work of other
institutions assisting aggrieved persons, such as health support, education and vocational
17
training as well as restitution and rehabilitation.50

6. Ensuring The Effective Functioning Of The Office

The Office must make rules pertaining to the manner in which recommendations and claims
should be received,51 processed and verified,52 as well as the administration of the Office.53
These rules must include gender and child responsive policies, along with guidelines54 and
trainings to be followed by the staff.

The Office is also mandated to appoint and exercise disciplinary control over its staff,55 gather
information needed to fulfil its objectives – including from other government bodies56, and
establish units57 and enter into contracts58 as needed for the purposes of the Office. It may
also request and receive assistance from any State institution, agency or officer, or from ‘any
person or body of persons’.59 The Office is responsible for managing the funds allocated to the
operationalization of the Office or the provision of reparations.60

OFFICE &
STAFFING
1. Staff should be trained in providing Gender and
Trauma-sensitive Victim services.
2. Staff should be Representative in terms of Gender,
Ethnicity and Religion.
3. Adopt Credible Witness and Victim Protection programs.
4. Perpetrators should not be involved in any part of the
Reparation Administration.

50      ibid 11 (1) o.

51      ibid 11 (1) e (i).
52      ibid 11 (1) e (ii).
53      ibid 11 (1) e (iii).
54      ibid 11 (1) f.
55      ibid 11 (1) p.
56      ibid 11 (1) q.
57      ibid 11 (1) r.
58      ibid 11 (1) s.
59      ibid s. 11 (1) t.
60      ibid 11 (1) w.
 OFFICE &
18

STAFFING
5. Hiring procedures should be transparent and representative.
Staff should include local professionals and international
experts.

6. Duplication of services must be avoided, and confusion

among victims are serious concerns and the office must make
every effort to address them.

7. Periodically informing aggrieved persons of the status

of their applications and respond to their queries.

7. Ensuring The Well-Being Of Persons Seeking Reparations

The Act grants the Office powers to ensure that those seeking reparations are safe, informed
and provided for.

These include ensuring that aggrieved persons are provided with administrative, travel and
psycho-social health support,61 and ensuring protection of such persons where there is an
identified threat.62

The victim and witness protection framework in Sri Lanka remains weak63, with a system that
is wholly reliant on the existing law enforcement system which has fostered and protected
perpetrators of harm. The CTF Report shows that victims communities are mindful of this and
wary of State-provided protection. It is important that the Office for Reparations be mindful of
this when considering victim and witness protection, and ensure that aggrieved persons are
consulted before they are subjected to protection. As far as possible, it must also ensure that
all officers assigned to protect victims have been vetted for their integrity and capability.64

On the grounds of communication, the Office is also mandated to provide information and
advice to persons who approach the office with regard to rights and procedures before
other mechanisms wherein they may find a remedy.65 The Office must also ensure that the
applicants are regularly updated on the status of their applications and that their queries are
responded to in a timely manner.66

61      ibid s.11 (1) j.

62      ibid s. 11 (1) k.
63      Medhaka Fernando ‘Mending Walls: Avenues to Restore Trust in Victim and Witness Protection’ South Asian Centre for Legal Studies (2017) <www.sacls.
org> accessed 13 December 2019.
64      ibid.
65      Office for Reparations Act, No. 34 of 2018, s.11 (1) l.
66      ibid s.11 (1) v.
OBJECTIVES OF 19

THE OFFICE OF
REPARATIONS
RECOMMEND reparations RECEIVE & VERIFY
policies to the Cabinet applications

OMP

IDENTIFY beneficiaries RECEIVE recommendations from

the Office on Missing Persons

PROVIDE reparations (as ADVICE beneficiaries on their

approved by the Cabinet) rights, and procedures under
other TJ mechanisms.

CHALLENGES FACED
INDEPENDENCE COMPROMISED
Cabinet and parliament must approve reparations policies. This subjects the Office to
political will and bias.

INSUFFICIENT ACKNOWLEDGEMENT OF THE GRAVE

VIOLATIONS ENDURED
The Act makes no mention of the nature of violations inflicted on victims, including
violations of human rights and international humanitarian laws.
20

Chapter Two

Devising & Implementing

Policies On Individual
Reparations
Reparations policies are generally classified into two categories: individual and collective.
Individual reparations policies identify violations caused to an individual. Collective
reparations policies are meant for communities and collectives that have suffered a violation
21
among others due to their group identity or geographical location. Both policies can provide
remedies in any of the following forms; compensation, restitution, rehabilitation, satisfaction
and guarantees of non-repetition. Individual reparations policies can include pension
schemes, the return of private land, letters of apology and psycho-social services. Collective
Reparations policies can include erecting monuments, employment quotas and access to
social services with special benefits to victims. 67

Section 11(1)(g) of the Act on the Office for Reparations authorizes the Office to formulate policies
and guidelines for the reparations process. This will encompass policies and guidelines for
individual as well as collective reparations measures, as well as policies and guidelines on the
type of reparations—whether individual or collective or which type of individual or collective
measures—are best suited to different situations.

As discussed in the previous chapter, it is problematic that the final decision-making powers
on these policies rest with the Cabinet. This, however, heightens the need for the current
Office to formulate a clear and detailed reparations policy while the current political space –
however, limited – exists. At the outset, it must be stressed that these reparations policies must
be reflective of both international best practices and the demands of victim communities in
Sri Lanka.

To make recommendations on individual reparations, two key questions must be examined:

first, who is eligible for reparations i.e who constitutes an aggrieved person according to the
Act; second, which forms of reparations are best suited to different harms and situations. This
chapter aims to address both those questions.

I. Determining Eligibility For Reparations

1. Identifying Beneficiaries
The Act on the Office for Reparations defines those who are eligible for reparations as
“aggrieved persons”. Section 27 of the Act goes on to interpret this phrase as follows:

“(a) persons who have suffered damage as a result of loss of life or damage to their person
or property,
(i) in the course of, consequent to, or in connection with the armed conflict which
took place in the Northern and Eastern Provinces or its aftermath; or
(ii) due to political unrest or civil disturbances; or

67      See generally, Pablo De Greiff (ed.), The Handbook of Reparations, (International Center for Transitional Justice – Oxford University Press, New York,
2006).
 (iii) such damage being in the nature of prolong and grave damage suffered by
individuals, groups or communities of people of Sri Lanka; or
22 (iv) due to an enforced disappearance as defined in the International Convention for
the Protection of all Persons from Enforced Disappearance Act, No. 5 of 2018;
(b) relatives of a deceased person or, a person missing in the circumstances referred to in
paragraph (a);”68

a. Amendments to the Act regarding the definition of aggrieved persons

Section 27(a) of the Bill initially stated that aggrieved persons were “persons who have suffered
a violation of human rights or humanitarian law (as contained in the First, Second, Third and
Fourth Geneva Conventions of 1949), as applicable”.69 An additional provision under section 27
went on to also define human rights as “all fundamental rights recognized by the Constitution
and rights contained in Acts of Parliament enacted to give effect to international human
rights treaties which have been ratified by Sri Lanka.” These provisions were challenged
before the Supreme Court,70 which ordered that the language in Section 27 be amended.

The petitioners, in this case, argued that this provision required the Office for Reparations
to first determine that there had been violations of human rights and humanitarian law
and that this function would usurp a role which the Constitution assigns exclusively to the
judiciary. The State argued that this would only play a small part within the broader function
of formulating reparations policies and that the Bill itself also stated that the awarding of
reparations to an aggrieved person would not result in the civil or criminal liability of any
other person. The Deputy Solicitor General argued that the powers granted to the Office for
Reparations under the Bill could not be interpreted as equating to judicial determination with
judicial consequences and that these powers did not constitute an encroachment into the
powers of the judiciary.

The Supreme Court Determination held with the petitioners on the above point. While the
Court agreed that the notion of judicial powers is fluid, it stated: “the function of making a
judgement based on an objective examination, assessment and evaluation of facts placed
before the Office for Reparations, and the parallel task of interpreting a complex body of law,
in the present circumstances, amounts to a judicial function”. It also rejected the argument
that there were no judicial consequences to the work of the Office, finding that the Office’s
determination of a violation would result in the State being liable to make monetary payments.
It ruled that the Office’s determination on human rights and humanitarian law within the State
of Sri Lanka would have serious implications for the State, especially with regards to the latter.

In accordance with this ruling, the language was broadened to that which is found in the
current Act. This definition now focuses on the harm suffered and damage done in the
relevant contexts71 defined by the Act, and excludes any assessment of preceding violations.

68      The Office for Reparations Act, No. 34 of 2018, s. 27.

69      The Office for Reparations Bill <https://www.parliament.lk/uploads/bills/gbills/english/6107.pdf> accessed 20 January 2020.
70      In the matter of an application under Article 121 in respect of the Bill titled ‘Office for Reparation’ S.C. S.D. 20/ 2018, S.C. S.D. 19/ 2018 <https://www.parlia-
ment.lk/uploads/bills/scdet/6107.pdf> accessed 31 December 2019.
71      These contexts being the armed conflict in the Northern and Eastern provinces and its aftermath, political unrests, civil disturbances and enforced
disappearances.
The amended language in the Act weakens the impact of the Office for Reparations because
it removes the link between reparations and rights violations and ultimately takes away
any acknowledgment of wrong which ought to be a core component of reparations. This is
23
especially problematic because the Sri Lankan State has repeatedly failed to acknowledge
conflict-related violations, or at the very least, to recognize the need for an independent and
thorough investigation into alleged violations of human rights and humanitarian law. In this
context, even the non-judicial acknowledgement of such violations would have significantly
furthered the impact of the Office for Reparations on reconciliation and restoring victims’
trust in the State.

An alternative to removing references to ‘violations of human rights and humanitarian law’

would have been to insert a provision requiring the Office to refer to the Supreme Court
questions pertaining to the scope and ambit of a violation. This is the process laid down in
the Act on the Human Rights Commission, where “in the course of an inquiry or investigation
conducted by the Commission a question arises as to the scope or ambit of a fundamental
right, the Commission may refer such question to the Supreme Court”.72

b. Definition of aggrieved persons in the Act

The definition of aggrieved persons in the Act is primarily linked to the context in which the
person suffered the harm. In addition to specifying the context, the Act also delineates the
type of persons that would qualify as aggrieved persons. After examining both these definition
elements, the remaining of this section discusses whether specific categories of persons
should be included in the definition of aggrieved persons.

i. Context in which the harm or damage occurred

The Act specifies, that for a person to be considered an aggrieved person, he/she must have
suffered harms and damages in three different contexts.
(i) in the course of, consequent to, or in connection with the armed conflict which
took place in the Northern and Eastern Provinces or its aftermath; or
(ii) due to political unrest or civil disturbances; or
(iii) such damage being in the nature of prolong and grave damage suffered by
individuals, groups or communities of people of Sri Lanka; or
(iv) due to an enforced disappearance as defined in the International Convention for
the Protection of all Persons from Enforced Disappearance Act, No. 5 of 2018;

First, the person should have suffered harms or damages “in the course of, consequent to, or
in connection with the armed conflict which took place in the Northern and Eastern Provinces
or its aftermath.”73 Interestingly, the Act does not specify any temporal limitation with respect
to this specific context. In order to ascertain the exact scope of its mandate and whether
harms and damages were suffered ‘in the course of’ the armed conflict, the Office would
have to carry out analysis on the basis of International Humanitarian Law (IHL) to determine
the starting date of the armed conflict in Sri Lanka. However, such assessment may not be
necessary as the Act broadens the temporal and geographical scope of the first prong of

72      Human Rights Commission of Sri Lanka Act, No.21 of 1996, s.17.
73      The Office for Reparations Act, No. 34 of 2018, s.27 (a) i.
 the contextual element by specifying that the loss of life or damage to persons or property
need not have occurred in the course of the conflict but may also be a consequence to
the conflict or connected to the conflict or its aftermaths. According to the second prong,
24
harms or damages may also be due to unrest and civil disturbances. This term is also partially
borrowed from IHL. In this body of international law, the expression ‘internal disturbances and
tensions’ is used to refer to situations that do not qualify as armed conflicts because the
criteria are not fulfilled. The definition adopted in the Act serves a similar purpose.

Overall, the first and second prong subject to their interpretation by the Office allow for a very
broad and encompassing material mandate. For example, these categories would include
Muslim communities who were forcibly expelled from the North and East by the LTTE in 1990,74
many of whom continue to suffer from the displacement75 and yet are largely excluded from
conversations on transitional justice measures. The second prong (“due to political unrest or
civil disturbances”) would also cover victims of a broad range of incidents in Sri Lanka. This
could range from victims of ethnic riots in the 1970s and 1980s to victims of far more recent
ethnic and religious clashes. It will also be very relevant to victims of the JVP76-led political
uprisings in the 1970s and 1980s. The third prong refers to “such damage being in the nature
of prolong and grave damage suffered by individuals, groups or communities of people of
Sri Lanka.” This is very broad and does not refer to a specific context in which the damage
occurred. This is problematic as it broadens the scope of the Act to any prolonged and grave
damage regardless of their cause or context.

The final prong, on the other hand, is very specific, where the harm or damage was “due to
an enforced disappearance as defined in the International Convention for the Protection
of all Persons from Enforced Disappearance Act, No. 5 of 2018”. As defined in the Convention,
enforced disappearance is the “arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared person, which
places such a person outside the protection of the law”.77 Interestingly, the Supreme Court did
not order for this to also be amended, given that it also requires the Office for Reparations to
make a legal determination. Nevertheless, it is commendable, especially given how relevant
that enforced disappearances have been a tool of conflict and repression used by almost
all parties to Sri Lanka’s conflict and uprisings, and victims of this crime are found across the
country.

ii. Specific categories of aggrieved persons

The Act on the Office for Reparations is not detailed on the different categories of aggrieved
persons and only specifies that those who are eligible to reparations are “persons who
have suffered damage as a result of loss of life or damage to their person or property,” and
“relatives of a deceased person or, a person missing” in the four contexts discussed above.

74      A. R. M. Imtiyaz, ‘The Displaced Northern Muslims of Sri Lanka: Special Problems and the Future’ (2011) Journal of Asian and African Studies <https://
www.researchgate.net/publication/289994502_The_Displaced_Northern_Muslims_of_Sri_Lanka_Special_Problems_and_the_Future> accessed 20 January
2020.
75      ‘Sri Lanka’s Muslim IDPs 25 years on’ (IRIN News 21 January 2013) <https://www.refworld.org/docid/50ffedb52.html> accessed 21 February 2020.
76      The ‘Janatha Vimukthi Peramuna’ (People’s Liberation Front).
77      International Convention for the Protection of all Persons from Enforced Disappearance, Article 2 <https://www.ohchr.org/en/hrbodies/ced/pages/con-
ventionced.aspx> accessed 12 January 2020.
 c. Categories of aggrieved persons that are relevant in the Sri Lankan
context and for which decisions regarding inclusion may be required.
i. Relatives of victims. 25
Under the Act on the Office for Reparations, relatives of the direct victim of harm are eligible
for reparations in two circumstances: if the victim was disappeared or if the victim became
deceased, in relation to the material mandate of the Office. Given that in such cases
relatives of the victim are left traumatized, in financial need (in cases where the victim was
a breadwinner) or precipitately independent, this is commendable. However, it is then left to
the Office to determine which relatives qualify for reparations. In societies where families still
hold to extended family structures, the death or disappearance of one member can affect
multiple relatives.

A comparative sweep shows that States such as Colombia, Peru and Chile which implemented
reparations programmes have, as a baseline, construed relatives to include immediate
family members. This would include parents, spouses and children. The latter especially are
often prioritized and granted more extensive reparations such as a scholarship.

While the inclusion of immediate family is often a given, it may also be important to consider
the inclusion of non-traditional family structures78. The reparations policy should not limit the
concept of ‘spouse’ to the traditional definition which is contingent on a legal marriage to a
member of the opposite gender. It must be expanded to allow LGBTQ+ partnerships, as well
as other non-traditional structures. Sensitization of the Office for Reparations staff on why
such expended categories are important may be required.

When building procedural guidelines on processing applicants, the Office must also be
mindful that many victims will be lacking the necessary documentation.79 In the last stages of
the war, there were often unregistered marriages (owing to the lack of government offices),
where one party to the marriage died shortly after.80 The Office must work to fill in the gaps in
formalities and conventions, to ensure that no one who qualifies and should be prioritized for
reparations is left behind.

A final consideration rests on how the Office for Reparations deals with situations where
multiple relatives request reparations based on one family member. It is not feasible for each
relative to be eligible for the full amount of reparations for that harm, given a large number
of those who would be eligible. As suggested in the Act, the Office will need to formulate a
method for the set amount to be proportionally divided amongst the relatives. Within this
formulation, it is ideal that they consider the relative most in need, children of dependent age,
and whether the breadwinner of the remaining household is him/herself vulnerable due to
their gender or disability.

78      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 55.
79      More on this can be found in Chapter 3.
80      See further, ‘Sri Lanka: Identity Documents Issued in Colombo and the Northeast of Sri Lanka, including Driver’s Licences, Temporary Identity Cards and
Postal Identity Cards’ (Canada: Immigration and Refugee Board of Canada, 28 January 2013) <https://www.refworld.org/docid/5134670c2.html> accessed 21
February 2020.
 ii. Ex-combatants
One of the most vociferously reiterated arguments during the parliamentary debate on the
26 Act on the Office for Reparations, was that a reparations process would/ should not benefit
former members of the LTTE. Along those lines, the eligibility of former members of paramilitary
groups would also be in question. As the Office for Reparations examines this argument, a few
considerations are noteworthy. First, individuals labeled as ‘members’ of an armed group may
have never carried out combat function or supported combat function. The LTTE operated as
a de facto government in the North and East of the country, and many in the region worked
under the umbrella of the group, though they did not support the war effort. Second, many
low-level combatants in the LTTE and other paramilitary groups were forcibly recruited –
often as children, and could only escape under threat of death. Third, under international
law, active participation in hostilities does not in itself constitute a violation of international
law. Fourth, even the commission of an IHL or international human rights law violation is not
a sufficient reason to deny reparations for harms suffered as a result of another violation of
which that person is a victim. This is consistent with the idea that a person’s actions do not,
under any circumstance justify the violation of his / her rights.

In light of the above considerations, the discussion -if any- should be limited to whether
and to what extent members of armed groups who committed violations or crimes should
receive reparations for harm suffered as a result of other violations. Some would argue that
it would not be right to take from resources which ought to benefit victims and to distribute
such resources to those who perpetrated crimes. They further argue that this would not only
be unjust, it would also exacerbate existing divisions and the resentment of victims towards
former combatants as well as the State.81

Examples from other countries may guide the Office for Reparations as it examines such
a question. States have previously allowed combatants to benefit from the reparations
process82. In these cases, the common requirement has been that the individuals in question
have been demobilized, and are no longer in active combat.

In Chile, both the National Commission for Truth and Reconciliation and the National
Commission on Political Imprisonment and Torture registered victims without making any
exclusion. Some victims of political killings listed were known high-ranking members of State
security agencies responsible for forcibly disappearing political dissidents or for torture.83
Others were known members of subversive groups that were executed or disappeared by
security services. The National Commission on Political Imprisonment and Torture in Chile
defended its decision to include victims with no regard to their previous acts, stating: “nothing
of this [victims’ previous or subsequent conduct] justifies […] detentions in secret places,
neither the use of torture.”84 It has been noted that in Chile, crimes attributed to subversive
groups represented a small proportion of all crimes committed.85

81      Pablo de Greiff, ‘Establishing Links between DDR and Reparations’ ICTJ (2010) <https://www.ictj.org/sites/default/files/ICTJ-DDR-Reparations-Research-
Brief-2010-English.pdf> accessed 12 January 2020.
82      ‘Pensions, Reparations and Reintegration: Parallel Processes for Injured Ex-Combatants and Civilians’ (Reparations, Responsibility and Victimhood in
Transitional Societies, 23 October 2017) <https://reparations.qub.ac.uk/pensions-reparations-reintegration-parallel-processes-injured-ex-combatants-civil-
ians/> accessed 30 December 2019.
83      Informe de la Comisión Nacional de Verdad y Reconciliación, vol II (1996) 665-670. <http://www.memoriachilena.gob.cl/602/w3-article-85803.html>
accessed 20 January 2020.
84      Informe de la Comisión Nacional sobre Prisión Política y Tortura, (2005) 75. <https://bibliotecadigital.indh.cl/handle/123456789/455> accessed 20 Janu-
ary 2020.
85      ibid.
However, other States have restricted the type or quantum of reparations or excluded
individuals from some reparations policies if they had belonged to armed groups or
have committed crimes. In Colombia, the issue of whether or not ex-combatants could
27
be considered victims for the purposes of reparations and included in the Single Registry
for Victims was a significant debate.86 Colombia’s Constitutional Court Ruling C/250-2012
found that “the exclusion of ex-combatants from the administrative programme was not
unconstitutional as these preserved their right to access to the ordinary judicial route, should
they consider themselves to have suffered unlawful harm”.87 Former combatants also had the
ability to received benefits through voluntary demobilisation programmes.88 Hence, former
combatants, excluding child soldiers who has demobilized before the age of 18, were not
eligible for any forms of reparation.

In Peru, The 2005 reparations law specifies that members of non-State armed groups (defined
as “subversive organizations”) were not entitled to reparations.89 The laws were narrowed even
further in 2013 to also exclude those charged with having committed crimes of ‘terrorism
or terrorism apology’.90 The blanket exclusion of members of non-State armed groups,
however, may be deemed discriminatory and there has been no discussion on this issue.
Instead, the debate was limited to whether the exclusion would require a judicial conviction
that establishes membership in a subversive group or if information from local authorities or
security services could be relied on91.

In Sri Lanka, most ex-combatants went through a rehabilitation process sponsored by

the government. However, these processes have been critiqued due to the allegations of
mistreatment within rehabilitation camps, and the prevailing surveillance of those who passed
through that process.92 Since being released, many of these individuals remain stigmatized
in their communities as well as in broader Sri Lankan society.93 In this context, the continued
demonization and exclusion of former combatants is likely going to hamper reconciliation.

iii. Diaspora Communities

Although Sri Lanka’s diaspora community is varied, large communities among them left Sri
Lanka to escape from ongoing violence. Many left the country in response to attacks on their
communities, such as the 1983 riots and the heavy fighting in the North in the 1990s. Others
left as a result of having to be subject to individual harm or being under threat of such harm.
Given this, many among the diaspora community will fall under the definition of aggrieved
persons as defined in the Act.

86      Reparations in Colombia: Where To? Mapping the Colombian Landscape for Reparations for Victims of the Internal Armed Conflict (Reparations,
Responsibility and Victimhood in Transitional Societies, 2019) <https://reparations.qub.ac.uk/assets/uploads/ColombiaReparationsPolicyReportFORAPPROV-
AL-SP-HR-NoCrops.pdf Exec. Summary> accessed 30 December 2019.
87     Reparations in Colombia: Where To? Mapping the Colombian Landscape for Reparations for Victims of the Internal Armed Conflict (Reparations,
Responsibility and Victimhood in Transitional Societies, 2019) <https://reparations.qub.ac.uk/assets/uploads/ColombiaReparationsPolicyReportFORAPPROV-
AL-SP-HR-NoCrops.pdf Exec. Summary> accessed 30 December 2019.
88      ibid 56.
89      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 6.
90      ibid 7.
91      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 6
92      Sri Lanka Human Rights Report (2013) at 9 <https://photos.state.gov/libraries/sri-lanka/5/pdfs/hr_report_2013_en.pdf> accessed 12 January 2020; Canada:
Immigration and Refugee Board of Canada, ‘Sri Lanka: Treatment of Suspected Members or Supporters of the Liberation Tigers of Tamil Eelam (LTTE),
Including Information about How Many are in Detention; Whether the Government Continues to Screen Tamils in an a\Attempt to Identify LTTE Suspects’
(2011-January 2015), 11 February 2015 <https://www.refworld.org/docid/54f03b7e4.html> accessed 20 February 2020.
93      Amarnath Amarasingam, ‘Life in the Open-air Panopticon: Surveillance and the Social Isolation of Ex-LTTE Combatants in Sri Lanka’ (Groundviews 20
May 2014) <https://groundviews.org/2014/05/20/life-in-the-open-air-panopticon-surveillance-and-the-social-isolation-of-ex-ltte-combatants-in-sri-lanka/>
accessed 20 Jan. 2015.
 This experience is shared by other countries that have undergone transition, and their
approaches to the issue are worth noting. In Argentina, many fled the country because of
extreme political repression in the 1970s. Decades later, Argentina has been looking at how
28
best to compensate those communities. 94The Supreme Court has issued multiple rulings in
favour of treating exiles as equivalent to illegal detainees during the 1976-1983 dictatorship to
provide reparation benefits to victims95.

Diaspora communities are often overlooked or belittled in discussions on transitional justice

in Sri Lanka, and the Office for Reparations mustn’t become guilty of the same. While individual
material reparations will not be relevant to much of the diaspora community, the Office
should explore more symbolic measures in consultation with those communities.

2. Prioritization Of Beneficiaries
Ideally, every individual who qualifies under the Act should be compensated for the harm
suffered. However, given the scale of violations committed and harms suffered in Sri Lanka
within the material mandate of the Office for Reparations, this may not be possible. For States
emerging from decades of armed conflict and internal instability, resources dedicated to
reparations are generally limited.

For this reason, reparations policies must consider how best to prioritize applications and
individual reparation measures. The Act on the Office for Reparations itself specifies factors
which must be considered when developing such patterns for prioritization, including the i)
seriousness of the violation, ii) the impact of the violation, iii) the vulnerability of the aggrieved
person(s), iv) reparations already received by the aggrieved person, and v) the indigence – or
the current needs of the individual.96

While prioritization is essential. It is also important to note that it may fuel resentment and
further division within victim communities – particularly when they are already divided by
ethnicity or political alliance.

a. Grave violations
As mentioned in the introduction, parties to the conflict in Sri Lanka face a very large range
of alleged violations. Reparations in Sri Lanka can be extended to every harm suffered which
falls within the material mandate of the Office. Here again, however, the Office will need to
prioritize types of harm to work within the confines of the resources available to it.

94      UN OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programmes, (2008) 19
<https://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf> accessed 30 December 2019. See also, Maria José Guembe, ‘Economic
Reparations for Grave Human Rights Violations: the Argentinean Experience’, in De Greiff, Pablo (ed.), The Handbook of Reparations (International Center for
Transitional Justice – Oxford University Press, New York, 2006).
95      Marcela Valente, ‘Human Rights-Argentina: Compensation for Exile’ (Inter Press Service Agency, 5 September 2006) <http://www.ipsnews.net/2006/09/
human-rights-argentina-compensation-for-exile/> accessed 25 December 2019.
96      Office for Reparations Act No. 34 of 2018, s.12 (1)(d).
As guided by the Act, the Office will need to factor in the gravity of the violation of the individual’s
rights, and the impact of that violation. A study of other States’ reparations processes reflects
a similar pattern in what is generally considered as a grave violation for the purpose of
29
reparations.

In Chile, the first reparations policy covered victims of enforced disappearance and
extrajudicial killings, regardless of whether these were perpetrated by State or non-State
actors. The policy was later expanded to include individuals expelled from civil service or public
companies for political reasons, beneficiaries of land reforms whose lands were confiscated
for political reasons, and to victims of political imprisonment and torture. The expanded policy
also assisted those returning from exile, and a larger program for psychosocial, medical
support and rehabilitation for a wider range of victims of State repression.97

The reparations scheme in Argentina initially included only victims of enforced disappearance,
based on the recommendations made by the National Commission on the Disappearance of
Persons. Over the years it expanded its coverage to victims of arbitrary detention, summary
execution by state agents, children born in captivity, and children of victims who were illegally
and secretly given in adoption, having their identities substituted.98

While reparations policies in Guatemala have been revised several times in accordance
with changing administrations, the internal agreement defined by the National Commission
for Redress has remained unchanged. The reparations policy covered in this agreement
includes survivors of torture, rape, extrajudicial killings and summary executions, massacres,
or enforced disappearances.99

The Truth and Reconciliation Commission of Peru implemented a reparations policy that
included extra-judicial killings, enforced disappearances, rape and other forms of sexual
violence, and harm resulting in partial or total disablement.100 Meanwhile, Colombia’s Victim
and Land Restitution Act includes covers “enforced disappearances, extrajudicial killings,
kidnappings, injury by explosive devices, torture, illegal recruitment and sexual violence”.101

Studying the patterns established by these examples, the Office for Reparations’ policy should
cover at least the following violations in Sri Lanka: extrajudicial killing, enforced disappearances,
rape, torture, grievous bodily injury, and illegal recruitment (i.e the forced recruitment of child
soldiers by the LTTE and State-sponsored paramilitary groups).

97      Elizabeth Lira, ‘The Reparations Policy for Human Rights Violations in Chile’, in De Greiff, Pablo (ed.), The Handbook of Reparations (International Center
for Transitional Justice – Oxford University Press, New York, 2006), 55-101.
98      Maria José Guembe, ‘Economic Reparations for Grave Human Rights Violations: the Argentinean Experience’, in De Greiff, Pablo (ed.), The Handbook of
Reparations (International Center for Transitional Justice – Oxford University Press, New York, 2006), 21-54.
99      Comisión Nacional de Resarcimiento, Acta No. 10 of 2006.
100      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 7-8.
101      Cristián Correa, ‘From Principles to Practice: Challenges of Implementing Reparations for Massive Violations in Colombia’ ICTJ (October 2015) 2, based
on article 3 of Law 1448 of 2011.
 b. Impact of the violation.
Identifying the impact of the violation will generally need to be done on a case-by-case basis.
30 However, the Office for Reparations must factor in the vulnerability of the aggrieved person at
the time of the violation, since this exacerbates the impact of any harm suffered.

Children, single women and disabled persons are among those who are often most vulnerable
in conflict. These vulnerabilities are often layered upon discrimination based on gender, caste
or social class. 102 Unfortunately, it is generally these categories of persons who are exempted
from consultations and policies on reparations. The Office for Reparations must ensure that
this is addressed in the reparations policy.

c. Multiple violations
In the course of conflicts and violent uprisings, individual victims are often subject to multiple
violations. Given the large severity, scale and time frame of the violence in Sri Lanka, many
aggrieved persons will likely have suffered several violations including torture, recruitment
as child soldiers, forcible expulsion and gender-based violence as well as enforced
disappearances or extrajudicial killings of their relatives.103

This is one of the situations which will need to be dealt with in the Office for Reparations’
policies. Some of the questions that arise are: Do reparations offices acknowledge and
compensate each violation or do they lump several violations together for the purpose of
reparations? Alternately should the Office only identify one harm – perhaps the most severe
– for reparations?

iv. Comparative cases

In Peru, more than 5000 individuals are registered as having suffered multiple violations.
Several families submitted a legal brief to the Superior Court of Lima asserting that they were
entitled to more than one form of reparation as they had suffered multiple violations. The
Ministry of Justice interpreted the reparations law in Peru in such a manner that some victims
only received compensation for one violation despite having suffered many.104

Reparations are primarily an acknowledgment by the State that victims have suffered
violations. Given this, withholding acknowledgement of the number of violations suffered
defeats one of the core objectives of reparations. Some countries have used a point system
to calculate compensation for different violations, with each violation being allocated several
points. The final award is determined by the sum of all the points. While the Philippines followed
the points system, it did not award victims the sum equal to the multiple violations suffered.
Instead, it awarded reparations corresponding to the violation with the highest points. Victims
who were killed or forcibly disappeared to date are given ten points, victims of torture, rape,
or sexual abuse receive six to nine points, and a victim who was deprived of their livelihood is
granted one.105

102      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 56.
103      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol I (November 2016) 53- 54.
104      ‘Peru: ICTJ Supports Victim’s Challenge of Unfair Compensation Program’ (ICTJ, 16 May 2016) <https://www.ictj.org/news/peru-victims-unfair-compensa-
tion> accessed 12 January 2020.
105      Republic Act No. 10364 - An Act Expanding Republic Act No. 9208, Entitled “An Act to Institute Policies to Eliminate Trafficking in Persons Especially
While the points system recognizes that victims have suffered multiple violations, it is highly
problematic because it assigns a value based on the perceived severity of the violation. A
points system may be construed as belittling the violations that victims have suffered. In this
31
instance, sexual abuse has a lower value than enforced disappearance. To make matters
worse it allows for a range of points (6-9) to be assigned. This is highly problematic as it raises
questions of how violations like torture and sexual abuse are assessed, and to what extent
victims would need to corroborate their claims.

v. How can Sri Lanka address multiple violations?

In Sri Lanka, most victims have suffered multiple violations. Best practices for reparations
suggest that the State must provide reparations to address multiple violations of a single
victim. However, there is also a danger of over-complicating the process. For instance, in
Tunisia, the Truth and Dignity Commission (TDC) formulated a list of over 100 types of harms (for
example, injury from torture or inability to maintain a livelihood) and individual circumstances
(such as old age or disability) based on the violations listed in the law.106

In Sri Lanka it would be useful to consult with victims on the violations they underwent, and
also ask them to asses which they consider the most widespread and severe. Following this, it
would be important for the Office for Reparations to consider how it could provide reparations
to address at least two or three of the violations from suffered by the victim. Although resource
limitations exist, the Office must aim – at the very least – to acknowledge the occurrence
of multiple violations. Given the limited resources of the State, it could be useful to provide
compensation for one violation and other methods of reparations for remaining violations
suffered. Victims could identify which violation they would like to be compensated for. The
case of multiple violations is one that must be addressed, to acknowledge the full gamut of
the hams suffered by the aggrieved person. In choosing a compensation structure, the Office
must ask stakeholders which process they prefer and feel most validated by.

DEVISING AN INDIVIDUAL REPARATIONS

POLICY BASED ON TYPES OF HARMS AND
VICTIMS’ NEEDS
Advantages
Accommodates most urgent needs and vulnerable victims
Takes into account resource limitations
Individualized assessment enables acknowledgment of the whole gamut of
violations
Disadvantages
Categorization of victims based on harms suffered can breed divisiveness and
cause fragmentation in the community
Creating a hierarchy of violations in terms of the gravity/ seriousness of the harm
alone, can also result in alienation of victims.

Women and Children, Establishing the Necessary Institutional Mechanisms for the Protection and Support of Trafficked Persons, Providing Penalties for its
Violations and for Other Purposes, s. 19 <http://laws.chanrobles.com/republicacts/104_republicacts.php?id=10023> accessed 20 January 2020.
106      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Pro-
cesses for Victims of Human Rights Violations’ ICTJ (2017) 21.
 II. Types Of Individual Reparations Measures
32
In formulating recommendations for reparation measures, the Office must be mindful that a
holistic reparations process should aim to restore past and continuing harms and to build a
more secure future for victims. Therefore, decisions on the types of reparations measures—
whether individual or collective—must be rooted in an understanding of the specific socio-
economic conditions of prospective beneficiaries.

Conflict causes wide-ranging economic damage to affected communities, including due

to appropriation of private lands, destruction of property and loss of livelihoods. Enabling
victims to recover and rebuild from such losses is a key element of transitional justice. The
International Center for Transitional Justice (ICTJ) notes that “transitional justice approaches
in which reparations do not feature are less effective because they do not directly change
the situation in which victims find themselves.”107

As has been discussed, however, in situations where there has been grave damage to entire
communities, it is not feasible to aim to restore all economic losses to all victims. However, at
a minimum, and as provided for in the Act, there has to be a plan to provide relief to the most
vulnerable victims. This includes those already marginalized by poverty, with limited assets to
fall back on and trapped in a cycle of conflict-related displacement and loss of livelihoods
and primary breadwinners. For these most vulnerable victims, recovery can only be possible
when their economic marginalization is addressed.

The following examines the prevailing socio-economic conditions in the North and East
to identify the most appropriate reparation measures (in particular individual reparation
measures; for collective reparations measures cf infra chapter 3). It further discusses
monetary and non-monetary reparation measures and their real or perceived advantages.

1. Overview Of The Socio-Economic Status Of Affected

Communities In Sri Lanka
Post-war economic rebuilding efforts in the North and East have focused primarily on
large-scale capital-intensive infrastructure projects108 to the exclusion of specific, coherent
reparations policies. Nearly a decade after the war, the emphasis has continued to be
on reconciliation through economic development as reflected even in the 2019 budget
initiatives.109 However, as the ICTJ notes, though governments prefer large social development
projects, such projects tend to “lose their reparative effect for victims110.” Even from an
economic perspective, there is now a vast literature that questions the ability of merely

107      Lisa Magarrell, ‘Reparations in Theory and Practice’ Reparative Justice Series ICTJ (2007). <https://www.ictj.org/sites/default/files/ICTJ-Global-Repara-
tions-Practice-2007-English.pdf> accessed 28 December 2019.
108      M. Sarvananthan, ‘Elusive Peace Dividend in Sri Lanka: All That Glitters is not Gold’ (2016) 81 (4) Geo Journal 571-596.
109      Mass Movement for Social Justice, ‘Reconciliation through Economic Development: Budget 2019’s hollow Prescription for North and East (Daily FT 27
March 2019)<http://www.ft.lk/opinion/-Reconciliation-through-Economic-Development---Budget-2019-s-hollow-prescription-for-north-and-east/14-675364>
accessed 30 December 2019.
110      Lisa Magarrell, ‘Reparations in Theory and Practice’ Reparative Justice Series ICTJ (2007). <https://www.ictj.org/sites/default/files/ICTJ-Global-Repara-
tions-Practice-2007-English.pdf> accessed 28 December 2019.
growth-oriented development projects to create equitable and inclusive improvements in
actual wellbeing of people. The capabilities approach pioneered by economist Amartya
Sen and now widely accepted within the United Nations frameworks for measuring human
33
development emphasizes a focus on people’s ability to expand their capacity for wellbeing
and participation in economic progress.111 Unless there is an expansion in such capabilities,
mere economic growth does not necessarily lead to improvements in wellbeing.112 A narrow
focus on purely monetary investments or growth might be exclusionary from a distributional
justice point of view if people cannot participate in or benefit from such growth.

This has indeed been the case in Sri Lanka where realities of rebuilding interrupted lives for
survivors and families not only in the North and the East but in other conflicted impacted
districts in the South and elsewhere have precluded them from engaging with or being
beneficiaries of the large-scale economic development initiatives. In keeping with the
capabilities approach, below we identify the limitations in household and individual capacity
for economic recovery. These specific economic realities of post-conflict life for survivors
must be taken into account when designing a comprehensive reparations policy that goes
beyond economic development initiatives.

a) One significant aftermath of war has been a large number of female-

headed households, where women have had to become the primary
breadwinners and economic providers for their families in cases where
male heads are either missing, killed during the conflict or disabled due
to conflict and therefore unemployed and unable to contribute to the
economic maintenance of the family. According to the Household Income
and Expenditure Survey (HIES) of Sri Lanka, there were 1.2 million female-
headed households in the country in the 2012-13 survey period, constituting
23.5 percent of all households. In 2016 HIES those numbers increased to 1.4
million and 25.8 percent respectively. HIES or other census sources do not
specifically identify the numbers of female-headed households by district
or by reason for female headship. Various other studies have estimated that
about 50000 to 100000 female-households are in the conflict-affected regions
in the North and East. For example, a 2015 UN study suggested that there were
a little over 58, 000 female-headed households in the Northern Provinces
alone who face multi-faced vulnerabilities in the post-war context.113 Other
sources have estimated about 90000114 such households in the Northern
and Eastern provinces combined and 40,000115 in the Northern provinces.

Women heads of households have had limited ability to participate in

specialized employment in the larger development projects while balancing
basic household survival and rebuilding from war-related trauma and
destruction of assets single-handedly. A big issue highlighted by many

111      Basu Kaushik and Lòpez-Calva, “Chapter Sixteen - Functionings and Capabilities’ in K. J. Arrow and A. K. Sen and K. Suzumura (ed.), Handbook of Social
Choice and Welfare (vol. 2, 2011) pages 153-187.
112      Amartya Sen, ‘Development as Freedom’ (Anchor Books 2000).
113      Mapping of Socio-Economic Support Services to Female-Headed Households in the Northern Province of Sri Lanka (United Nations, Sri Lanka 2015)
<https://srilanka.unfpa.org/sites/default/files/pub-pdf/FemaleHeadedHouseholds.pdf>accessed 30 December 2019.
114      ‘Elusive Peace, Pervasive Violence: Sri Lankan Women’s Struggle for Security and Justice’ International Civil Society Action Network (2013) <https://ican-
peacework.org/wp-content/uploads/2017/03/What-the-Women-Say-SriLanka-Brief-Spring-2013.pdf> accessed 30 December 2019.
115      ‘The Status of War Widows in Sri Lanka: A Fact-Finding Report’ Association for Women’s Rights in Development (Canada) (2011) <http://www.sangam.
org/2011/08/Status_Widows.php.> accessed 30 December 2019.
 surveys and studies has been the employment barriers faced due to the lack
of education and transferable skills among women who have had to become
34 primary providers in the post-war context. For example, a UN study highlighted
that lacking in skills and facing the unexpected role of heads of household
many women have been forced into unskilled, low-wage labor and face
unemployment levels considerably higher than men. 116 Similarly, an ICES survey
of women-headed households in the northern districts indicated that early
school drop-out rates for women due to poverty, war-related resettlement
and household care commitments have left many women heads with limited
opportunities for skill development and therefore sustained employment. 117

b) With limited employment prospects for women heads of households,

families of wage earners who were killed during the conflict, missing or war
disabled and unemployed, have had to rely on increased borrowings to
satisfy basic consumption needs that had long been suppressed during war-
related displacements. This has led to a debt crisis among surviving families,
exacerbated by the fact that many ad hoc post-conflict support initiatives
have tended to be in the form of microloans or housing loans. In a series
of papers, the Center for Poverty Analysis has highlighted the problem of
indebtedness for households in the Northern districts and the connections
between this debt and the post-war vulnerabilities stemming from poverty
and lack of employment opportunities.118 2016 HIES numbers also indicate
the unique vulnerabilities of debt for households in the Northern districts. For
example, households in Jaffna and other northern districts had the highest
mean debt stemming from money lenders and pawning centers, both sources
of quick, consumption related funds. Mean debt from money lenders in Jaffna
district was Rs 317, 327 followed by Vavuniya at Rs 241, 473 and Mullaitivu at
Rs 240, 693. In comparison, average debt from money lenders for the whole
country was on Rs 125, 992. Jaffna household’s average indebtedness to
pawning centers was Rs 215, 805 compared to Rs 100, 783 for all of Sri Lanka.119

c) Multiple and long periods of displacement have left families with interrupted
education and missing basic skills training. This has led to diminished employment
prospects for survivors in large scale economic projects that do not formally
commit to training. This has also created a cycle of persistent poverty and
unemployment. For example, according to data from the Annual Sri Lanka Labor
Force Surveys120 the unemployment rate for Jaffna district has been consistently
at 7 percent in 2016, 10.7 percent in 2017 and 6.7 percent in 2018. In comparison,
the unemployment rate for the entire country during these years has been
much lower at 4.4 percent in 2016, 4.2 percent in 2017 and 4.4 percent in 2018.

116     Mapping of Socio-Economic Support Services to Female-Headed Households in the Northern Province of Sri Lanka (United Nations, Sri Lanka 2015)
<https://srilanka.unfpa.org/sites/default/files/pub-pdf/FemaleHeadedHouseholds.pdf>accessed 30 December 2019.
117      Ketaki Kandanearachchi and Rapti Ratnayake, ‘Post-War Realities: Barriers to Female Economic Empowerment’ International Center for Ethnic Studies
(2017) <http://ices.lk/wp-content/uploads/2017/12/Post-War-Realities-For-Circulation.pdf> accessed 30 December 2019.
118      K. Romeshun, Vagisha Gunasekara and Mohamed Munas, ‘Life and Debt; Assessing Indebtedness and Socio-economic Conditions of Conflict-Affected
Housing Beneficiaries in Jaffna, Kilinochchi and Mullaitivu Districts’ Center for Poverty Analysis (2014)
<http://www.cepa.lk/content_images/0d6e1cc768f1d5f53cdc8ee970a71672-2014-Romeshun-Life-and-Debt.pdf> accessed January 17th 2020.
119      Household Income and Expenditure Survey (HIES), Department of Census and Statistics (2016) <http://www.statistics.gov.lk/HIES/HIES2016/HIES2016_
FinalReport.pdf> accessed January 17th 2020.
120     Sri Lanka Labour Force Surveys (Department of Census and Statistics) <http://www.statistics.gov.lk/page.asp?page=Labour%20Force >accessed January
15th 2020.
 d) Also, in the absence of formal reparations, ad hoc livelihood projects have
focused on short-lived individual entrepreneurial activities such as poultry and
cattle rearing, sewing, food preparation, etc. However, as many studies have 35
pointed out, lacking coordinated long-term efforts or access to marketing
and a viable consumer base outside similarly impoverished families, such
individual entrepreneurship schemes have failed to generate sufficient
income to maintain the daily needs of households.121 122

The above conflict-induced limitations to the capacity for the most vulnerable households to
rebuild their economic lives have manifested in the persistence of pockets of intense poverty
in the conflict-affected regions. While steady progress was made in reducing the national
poverty rate in Sri Lanka from 8.9 percent in 2009/10 to 6.7 percent in 2012/13 to 4.1 percent
2016,123 such progress has not fallen short in conflict-affected districts. Below we focus on
three sample conflict-affected districts to illustrate this.

Poverty Head Count Index HIES 2012/13 and 2016

District 2012/13 2016

Jaffna 8.3 7.7

Mullaitivu 28.8 12.7

Moneragala 20.8 5.8

Sri Lanka 6.7 4.1

In northern districts like Jaffna and Mullaitivu, poverty rates continue to be nearly double or
more compared to the national rate nearly a decade after the war. In the southern district
of Moneragala, we see the persistence of the cycle of poverty. Although a direct causal
link to episodes of unaddressed violence is difficult to establish, it is worth noting that this
district was particularly affected by the JVP conflict in the 1970s124. Although the most recent
poverty headcount index indicates a substantial decline in this district, Moneragala continues
to have one of the highest rates of individuals vulnerable to multidimensional poverty.
Multidimensional poverty measurement is based on the capabilities approach to human
development and a global multidimensional poverty index now part of the annual United
Nations Human Development Reporting framework.125 Multidimensional poverty indicators
measure not merely income or consumption poverty but also deprivation in access to basic
living conditions and services like sanitation, electricity, nutrition, education and child mortality,
all of which expand people’s capacities for wellbeing and fruitful economic participation. In
Sri Lanka, the Department of Census and Statistics introduced its multidimensional poverty
measures, based on the global index. Individuals are vulnerable to poverty when they are just

121      Vasuki Jeyasankar and Savini Ganhewa, ‘Making Ends Meet: Women’s Livelihood in Post-War Sri Lanka’ (ICES 2018) <http://ices.lk/wp-content/up-
loads/2018/03/Making-Ends-Meet-Women%E2%80%99s-Livelihoods-in-Post-War-Sri-Lanka.pdf > accessed 30 December 2019.
122      Mapping of Socio-Economic Support Services to Female-Headed Households in the Northern Province of Sri Lanka (United Nations, Sri Lanka 2015)
<https://srilanka.unfpa.org/sites/default/files/pub-pdf/FemaleHeadedHouseholds.pdf>accessed 30 December 2019.
123      Household Income and Expenditure Survey (HIES), Department of Census and Statistics (2016) <http://www.statistics.gov.lk/HIES/HIES2016/HIES2016_
FinalReport.pdf> accessed January 17th 2020.
124      G.H. Peiris, ‘Sri Lanka -Youth Unrest and Inter-group Conflict’ South Asia Terrorism Portal (2018) 19 <https://www.satp.org/satporgtp/publication/fault-
lines/volume19/article5.htm> accessed January 17th 2020.
125      Human Development Report- 2018 Global Multidimensional Poverty Index (United Nations Development Programme) <http://hdr.undp.org/en/2018-
MPI> accessed 19 January 2020.
 barely above the poverty threshold and are in danger of falling below the threshold in the
future. In Moneragala, 19.7 percent of the population remains vulnerable to poverty followed
by 18.4 percent of the population in Mullaitivu according to the Sri Lankan multidimensional
36
poverty measures introduced by the Department of Census and Statistics in 2018.126

Related to the high poverty index the three districts in the low consumption capacity of the
households in these regions. While the average monthly household expenditure for Sri Lanka
according to the 2016 HIES is Rs. 54, 999, households in the conflict-affected regions have
much less spending capacity. The lowest expenditure of Rs 28, 483 was in Kilinochchi, another
conflict impacted district in the north. Similarly, the average household income in these
districts lags substantially behind the mean national household income of Rs. 62, 237.

Monthly Average Household Income and Expenditure HIES 2012/13 and 2016

District Mean Monthly Income Mean Monthly Expenditure

Jaffna 47,731 43,571
Mullaitivu 27,127 32,576
Moneragala 42,511 35,487
Sri Lanka 62, 237 54, 999

These income and expenditure lags suggest that large scale development projects have
not generated inclusive benefits in the regions and might have bypassed a majority of the
survivors. It also indicates the lack of a local consumer base which can sustain the kind of
self-entrepreneurial livelihood schemes that have been pushed. At the same time, it suggests
important economic considerations that need to be taken into account when designing a
comprehensive reparations policy.

While this analysis contributes a preliminary analysis of reparations in Sri Lanka. The Office
for Reparations must carry out a more thorough mapping and analysis of persons and
communities who are eligible for reparations under the Act, as well as the levels of socio-
economic needs across that population.

2. Determining Types Of Individual Reparations

Affected communities sometimes mistakenly perceive individual reparations to be limited to
mere financial compensation. This is not true. While compensation-based schemes are the
most common form of individual reparations, there are several challenges in implementing
them fairly and ethically.

126      ‘Global Multidimensional Poverty for Sri Lanka’, Department of Census and Statistics (2019) <http://www.statistics.gov.lk/poverty/Bulletin/GMPI_Bulle-
tin2019.pdf > accessed 27 December 2019.
First, the formulation and implementation of a compensation scheme can cause resentment
and division within victim communities. As discussed in previous sections of this report, the
scale of harms to victims and the limited resources available to a reparations process
37
necessitate prioritization. Decisions on prioritization will include qualifying harms, quantifying
each harm, prioritization of profiles based on vulnerability and needs. This can lead to some
victims within the same community receiving disparate amounts of financial compensation,
while others receive nothing, eventually perpetuating discord and dissatisfaction. In Côte
d’Ivoire, victims were dissatisfied with the quantification of compensation to the harm,
because many felt that the amounts received were not on par with the harms suffered or the
rising levels of expenses.127

Second, the Office must work through questions on whether to issue financial compensation
in a lump sum or to administer a pension scheme. The former is administratively easier.
However, a pension scheme would ensure that the household receives some stable income
for a time, and may lead to greater caution and investment of those funds. Conversely, a
long-term pension scheme would depend on consecutive governments committing the
necessary funds to the reparations process, leading to uncertainty that such a process would
be completed.

Third, as briefly discussed before, financial compensation can suggest to victims that they are
being paid ‘blood money’ to buy their silence. The CTF report highlights that many stakeholders
in Sri Lanka shared this fear, which leached into a distrust of an Office for Reparations as a
whole. They felt that financial reparations would be given instead of other processes, barring
them from seeking justice and accountability for perpetrators of violations.128 Comparatively,
symbolic and community-oriented reparations may be perceived as more respectful of the
various aspirations of victims.

Another challenge when designing financial compensation schemes is to ensure that the
impact on recipients can be sustained. For this purpose, there must be corresponding
socio-economic development policies benefitting victim communities, allowing for greater
investment of compensation as well as participation in the market.

Perhaps because of some of these challenges, the Committee on Reparations and

Rehabilitation (CRR) in South Africa was reluctant to commit to financial reparations, and
instead directed the focus toward symbolic and collective reparations.129 The Committee did
eventually shift to providing some financial compensation, although the prioritization policy
on this was subject to extensive debate. In that case, avoiding financial compensation was
not ideal primarily because consultations with victim groups had shown individual financial
compensation to be one of their priorities, along with prosecutions.

127      Abraham Kouassi, ‘Côte d’Ivoire: Victims Say Reparations So Far Are Not Enough’ (JusticeInfo. Net, 21 May 2019) <https://www.justiceinfo.net/en/repara-
tions/41485-cote-ivoire-victims-say-reparations-so-far-are-not-enough.html> accessed 20 September 2019.
128      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 43.
129      Christopher Colvin, ‘Overview of the Reparations Program in South Africa’ in De Greiff (ed.), The Handbook of Reparations, (International Center for
Transitional Justice – Oxford University Press, New York, 2006) 191.
 a. Monetary Compensation in Sri Lanka
Sri Lanka’s Office for Reparations must formulate its policies for individual financial
38 compensation based on victim consultations. While the CTF reported that victims feared
that reparations would be a way to buy their silence, it also reported the need for financial
compensation following victim testimonies on their poverty in relation to the conflict. This
was especially highlighted in households where none of the breadwinners remained or were
severely disabled.130

As the Office for Reparations formulates compensation policies for Sri Lanka, it will need to be
mindful of the following points.
a(i)(i) Monetary compensation cannot be the only form of reparations afforded by
the Office. Such an approach would not only exclude large victim communities, but it
would also minimize the broader restorative impact of reparations. A comprehensive
reparations policy must also include individual non-financial reparations, such as
health, psychosocial and educational support.131 It must also include collective symbolic
reparations, such as memorialization, and communal and regional development.132
The Office for Reparations must also continue to advocate for broader reparative
measures, including accountability, truth-seeking, tracing investigations and legal
and institutional reform.

a(i)(ii). A compensation process need not be structured similar to court-ordered

reparations, where each application is studied and assessed on a case by case basis.
Often, reparations policies define standardized amounts for different categories of
harms. Such processes are also easier to administer and are more time-efficient.
However, although standardized amounts can be set for different harms, each case
would need evaluation for issues such as multiple violations, economic conditions etc.

When designing an individual financial compensation policy for victims in Sri Lanka, the Office
for Reparations will need to think through the following three issues: 1) whether a standard
amount will be determined in regards to compensating for similar types of violations 2) whether
compensation should be given as a lump sum or as a pension scheme, 3) how compensation
for harms should be quantified; and 4) how compensation should be distributed amongst
qualifying relatives. These issues will be discussed in the following section.

Colombia issued133 lump sums for the families of those who were killed or disappeared, as well
as for survivors of kidnapping and disabling injuries. Under Reparations Law 1448, it allocated
forty minimum-rate salaries (approximately USD 8,290) for such harms. For victims of other
injuries, torture, sexual violence and illegal recruitment, it allocated a lump sum of 30 minimum
salaries (approximately USD 6,218).134

130      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 37.
131      For more see Chapter 3 Pg 35
132      For more see Chapter 4 Pg 49
133      Cristián Correa, ‘From Principles to Practice: Challenges of Implementing Reparations for Massive Violations in Colombia’ ICTJ (October 2015) 12.
134      Cristián Correa, ‘From Principles to Practice: Challenges of Implementing Reparations for Massive Violations in Colombia’ ICTJ (October 2015) 12.
In Argentina, through reparations laws established in 1991 and 1994135 the amount given to
relatives of those forcefully disappeared was a hundred times the monthly salary of the
highest level of civil servants, equivalent to USD 224,000.136
39

Chile137, through its Truth and Reconciliation Commission of 1990, issued pensions for victims
of killing and disappearance, based on the national family medium income. The total amount
was distributed among family members through a system of fixed amounts for spouses,
children, and a surviving parent. All beneficiaries received an initial lump sum equating to
twelve months of the pension. Pensions then continued for life, except for children who were
not disabled. In the case of the latter, the pension continued until they were 25.138 Under this
structure, reparations program for victims of torture in Chile – which adopted a standardized
policy - registered more than 27,000 victims in one year, and took less than a year to begin
payments to more than 20,000 individuals who were entitled to receive a lifetime pension

The Moroccan and Brazilian reparations programs are among the few which made individual
assessments to define compensation amounts, calculating the amount based on income
loss. That approach has been widely rejected, and the reasons for this are discussed below.

i. Individual assessment vs Standardized Policy

As briefly mentioned above, compensation need not be given based on an individual
assessment of each case. The Act on the Office for Reparations specifies that the Office must
verify the applications,139 and this will need to be done on a case-by-case basis. Beyond this,
however, the Office for Reparations may formulate policies on processing reparations.

There are a few reasons to reject individual assessments in favour of standardized

compensation policies. First, the nature of the violations and their impact cannot be summed
up by actual material loss alone, given that often it is accompanied by serious physical and
mental harm. Second, this model makes distinctions between victims of the same harm,
which can read as a denial of the equal suffering of all victims. Following this, the Moroccan
policy has been criticized for being non-transparent and unfair.

Distinction based on individual assessment could also lead to a few victims receiving
significant amounts, which take up a large portion of the resources available for reparations.
Finally, a very practical reason for avoiding individual assessments is that they are costly,
require staff and additional controls due to increased risk of corruption, and can result in a
significant delay. Chile presents a strong case for a standardized policy – both in terms of
administrative ease, as well as a just and transparent process.

135      Marcela Valente, ‘Argentina: Belated Reparations for Victims of the Dictatorship’ (Inter Press Service Agency, 7 February 1997) < http://www.ipsnews.
net/1997/02/argentina-belated-reparations-for-victims-of-the-dictatorship/ > accessed 17 December 2019.
136      By that time Argentinean peso was in parity with USD, but the equivalent changed later when the peso got devalued. The pension was paid in treasury
bonds that matured after 16 years and beneficiaries could exchange at the bonds market. See Maria José Guembe, ‘Economic Reparations for Grave Human
Rights Violations: the Argentinean Experience’, in De Greiff, Pablo (ed.), The Handbook of Reparations (International Center for Transitional Justice – Oxford
University Press, New York, 2006) 40.
137      Elizabeth Lira, ‘The Reparations Policy for Human Rights Violations in Chile’, in De Greiff, Pablo (ed.), The Handbook of Reparations (International Center
for Transitional Justice – Oxford University Press, New York, 2006).
138      Elizabeth Lira, ‘The Reparations Policy for Human Rights Violations in Chile’, in De Greiff, Pablo (ed.), The Handbook of Reparations (International Center
for Transitional Justice – Oxford University Press, New York, 2006), 59.
139      The Office for Reparations Act, No. 34 of 2018, s 11 (1) b.
 iii. Lump sums vs Pensions
The Act specifically alerts the Office for Reparations on this question and leaves it to the Office
40 to develop a policy based on the best interests of the aggrieved person. 140

Undoubtedly, there are advantages to single lump sum payments. The primary benefit of this
policy is the accompanying certainty that regardless of subsequent State policy changes,
victims have accessed all compensation due to them.

However, there are also more pragmatic reasons to opt for lifetime pension schemes. This
is especially the case with vulnerable beneficiaries, including widows, the disabled (both
physically and mentally), and elderly parents of victims. Given that in such cases, the harm
results in poverty or extreme dependence, pensions – if implemented consistently – can
provide sustained support and stability. They reduce the risk of abuse and misappropriation
by relatives. They are also easier for the State to cater to, given that they will not cause a
sudden shortfall in State resources. Rather they may allow the State to invest more in other
development while feeding a percentage of the profits back into the pension scheme.

In Sri Lanka, the greatest danger to a pension scheme is posed by the State itself. In light of
how contentious transitional justice processes – including reparations – are, the Office for
Reparations must at least factor in an initial lump sum, as in the case of Chile.

iv. Quantifying amounts for compensation

To quantify amounts for compensation, an important economic consideration is that the
compensated amount should be non-trivial and offer a sustained period of social protection
to support basic survival needs as families rebuild from the trauma. The compensations
that have been considered under prior reparations policies or agencies in Sri Lanka have
most often been intangible; incapable of sustaining basic needs. For example, the REPPIA,
the primary State institution responsible for compensatory relief, suggests dependents of
deceased individuals receive a one-time compensation of Rs. 100, 000. By the standards of
the official poverty line for Sri Lanka, Rs. 4, 166 is the basic minimum expenditure requirement
per person per month.141

An amount of Rs.100, 000 would, therefore, be barely adequate to cover basic needs for two
individuals for one year and cannot sustain a family for any period.

The interim report of the Office on Missing Persons recommended a monthly living allowance
of Rs. 6,000 to the surviving spouse, child/children and/or surviving parent/s of a missing/
disappeared person, who have no permanent income as an immediate intermediate
measure, till more final reparation measures are adopted142. This is a step forward since the
amount specified per person is at least over the official poverty line. However, it remains an
arbitrary amount. A formal reparations policy has to anchor a meaningful allowance to some

140      ibid s. 12(1)(d)(v).

141     ‘Poverty Indicators’ Department of Census and Statistics (2016) <http://www.statistics.gov.lk/poverty/Poverty%20Indicators_2016.pdf>accessed 26 Decem-
ber 2019.
142      Interim Report (2018), The Office on Missing Persons <https://847da763-17e4-489f-b78a-b09954fec199.filesusr.com/ugd/bd81c0_3a8b43afeb334c66b-
2233cbeac3b3fcf.pdf> accessed 17 January 2020.
existing representative scale in the economy that can take into account the cost of living
adjustments overtime.
41
In Argentina’s Law 24.043 of 1992, the amount of the reparations was linked to the roster of
civil servants pay.143 In the case of a missing or deceased person, the family received an
allowance worth five years of civil service pay as reparations. Following this method, if the
lowest step in the Sri Lanka civil service salary roster, the primary unskilled, were taken as the
basis for reparations, a five-year payment at the 2016 revised monthly scale of Rs. 24,250
would amount to a little under Rs.1.5 million per household. This amount is not inconsistent
with compensation for the loss of lives provided in some cases in Sri Lanka. For example, an
average of close to Rs 1 million was paid to relatives of three persons who lost their lives and
12 who were injured in the Aluthgama riots in 2014 (total of 12 million). Linking reparations to the
civil service roster ensures that the amount remains reasonable over the years by keeping
pace with the cost of living adjustments.

v. Distribution of compensation among relatives.

This report previously touched upon which relatives should be included in a reparations
policy. Once the Office for Reparations has determined the qualifying profiles, it will also need
to design a system to allocate compensation amongst them.

One option is to channel the compensation in full to one family member of each victim and
leave the relatives to decide on an appropriate system of distribution. While this policy would
be the easiest to administer, it is unlikely that it will be in the best interests of all beneficiaries.
It can lead to conflict within families, and the most vulnerable in families – especially women
and children – being sidelined. For instance, in South Africa, women, the elderly and the
disabled sometimes face the predicament of having their grant money being taken away
from them forcibly.144

Alternatively, distribution through the inheritance system, where compensation is received by

only one family member, offers the advantage of not having to define a different mechanism.
However, given the inequality ingrained in the different inheritance structures, it is again likely
that women will be sidelined. Inheritance structures also include relatives whose profiles may
not be included in the reparations policy, such as children of siblings. These are likely to raise
complications when compensation is administered.

A third possible system follows an assessment of which relatives are most impacted by the
death or disappearance of the victim. For example, it could be argued that parents and
spouses will be more affected than siblings, both emotionally and financially. Adopting such
an ad hoc approach would, however, increase administrative hassle and the possibility of
corruption. The Office for Reparations will need to define a system that balances considering
and protecting those most vulnerable in larger family structures, with one which is most
administratively viable.

143      Maria José Guembe, ‘Economic Reparations for Grave Human Rights Violations: the Argentinean Experience’, in De Greiff, Pablo (ed.), The Handbook of
Reparations (International Center for Transitional Justice – Oxford University Press, New York, 2006).
144      Christopher Colvin, ‘Overview of the Reparations Program in South Africa’ in De Greiff (ed.), The Handbook of Reparations, (International Center for
Transitional Justice – Oxford University Press, New York, 2006)189.
 a. Non-Monetary Compensation in Sri Lanka
The Act on the Office for Reparations leaves it to the Office to consider the appropriateness
42 of non-monetary forms of reparations. Such measures are vital because, in actuality, harms
suffered have an impact far beyond financial considerations. They have psychosocial
implications, where the aggrieved person’s physical and/or mental health have been seriously
compromised, often with limited access to care and medication. They have implications for
civil and political rights, such as the lack of proper documentation and registration, and arrest
records resulting from politically motivated or discriminatory cases. They also have socio-
economic implications, where the aggrieved person has been stigmatized, lost access to
stable education and housing, etc.

Comparative reparations processes in Chile145, Peru146 and Colombia147 have included the
following measures: 1) medical care and specialized psychosocial support; 2) scholarships,
to survivors and for children; 3) housing; 4) elimination of criminal records or restitution of
civil rights deriving from politically motivated convictions or arbitrary sanctions; 5) exemption
of compulsory military service for children of victims; and 6) symbolic reparations through
individual letters of acknowledgment or a copy of the truth commission report in different
variants in the three countries; etc.

Defining these measures requires a careful examination of the existing capacities in the
country. This would include mapping the institutions that would have the technical capacity,
geographic coverage, and sensitivity to implement such measures. It would also require
identifying and designing processes to guarantee the accessibility and quality of these
measures.

i. Health care services

In Chile148, Peru149 and Colombia150, public institutions and services have been used for
implementing medical care and psychosocial support.

Implementation has been more effective in Chile151, where the public health care system has
broader coverage and capacity. There, the Comprehensive Reparations and Human Rights
Program operated within the public health care system, with specialized teams located in
every general hospital. Those teams comprised of social workers, psychologists and physicians,
supported by a psychiatrist when needed. Members of these teams were specifically selected
to work with survivors of human rights violations, with the required sensitivity and expertise.

145      Ruben Carranza, ‘The Series of Reparation Programmes in Chile’ ICTJ <http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/110331ictj.pdf>
accessed 17 January 2020.
146      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 7-8.
147      ‘Reparations in Colombia: Where To? Mapping the Colombian Landscape for Reparations for Victims of the Internal Armed Conflict’ (Reparations,
Responsibility and Victimhood in Transitional Societies, 2019) 25-45 <https://reparations.qub.ac.uk/assets/uploads/ColombiaReparationsPolicyReportFORAP-
PROVAL-SP-HR-NoCrops.pdf Exec. Summary> accessed 30 December 2019.
148      Ruben Carranza, ‘The Series of Reparation Programmes in Chile’ ICTJ <http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/110331ictj.pdf>
accessed 17 January 2020.
149      UN OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programmes’ (2009) 24 <https://www.ohchr.org/Documents/Publications/Repara-
tionsProgrammes.pdf> accessed 17 January 2020.
150      ‘Reparations in Colombia: Where To? Mapping the Colombian Landscape for Reparations for Victims of the Internal Armed Conflict’ (Reparations, Re-
sponsibility and Victimhood in Transitional Societies, 2019) 41 <https://reparations.qub.ac.uk/assets/uploads/ColombiaReparationsPolicyReportFORAPPROV-
AL-SP-HR-NoCrops.pdf Exec. Summary> accessed 30 December 2019.
151      Ruben Carranza, ‘The Series of Reparation Programmes in Chile’ ICTJ <http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/110331ictj.pdf>
accessed 17 January 2020.
These teams have a separate managerial structure within the public health care system and
are supported and monitored by organizations of users, allowing to broad participation.
43
vi. Educational Programmes
Educational programs can also rely on existing services for providing scholarships and
educational support. These require systems that are accessible, language-sensitive, and take
into account the educational level and regions of residence. Scholarship systems for victims
may require adaptation, as many of them may not have the necessary documentation and
certificates to fit bureaucratic requirements. Educational reparations policies need to prioritize
those in most need of scholarships, educational support, skill training and other measures.

Implementation of educational measures could take different forms, depending on the

educational needs and aspirations of those entitled to them. In Peru, those receiving
scholarships receive also additional support to guarantee their performance, completion and
educational attainment. This requires the policy not to be limited to granting scholarships, but
to have a network of providers, perhaps by subcontracting with private entities, that could
deliver this support.

vii. Letters of acknowledgement and apology

In Colombia, victims received personalized letters of apology from the State, signed by the
Head of the Victims Unit.152 Each letter was handed directly to the victim during their meeting
with the Victims Unit to discuss a personalized reparations plan.153 Each letter also contains
an offer to pay compensation for their suffering. 154 Such personal gestures acknowledging
victims’ suffering were often much appreciated by those affected.155

viii. Special pensions

In South Africa, special pensions were granted to a limited number of individuals, specifically,
former police and army personnel who were compelled to forgo their pensions due to their
activities to bring about a democratic South Africa. 156 To qualify for a pension, the individual
had to have served a minimum of five years in prison, been exiled or banned for a minimum
of five years, detained for a cumulative period of five years, or injured as a result of their
participation in the struggle for democracy.157 Family members of those who died in the
struggle could also benefit from the pension.158 In addition, there were certain age limits to
qualify and pensions average R40,000 per year.159

152      Cristián Correa, ‘From Principles to Practice: Challenges of Implementing Reparations for Massive Violations in Colombia’ ICTJ (October 2015).
153      ibid.
154     ibid.
155     ibid.
156      Warren Buford and Hugo van der Merwe, ‘Reparations in Southern Africa’ (2004) 44 (1-2) Cahiers d’etudes africaines.
157      ibid.
158      ibid.
159      ibid.
 ix. Amnesties
In Tunisia, amnesties were provided to political prisoners. 160 However, it is reported that
44 although these individuals were released and some were reintegrated, the lack of other
accompanying reparations including psychosocial support, led to discontent and protests.161

In Sri Lanka, a significant number of individuals remain incarcerated under the Prevention
of Terrorism Act, in connection with the conflict. There has been little to no progress in their
cases. The Office for Reparations could address this by recommending their release, or that
their cases be promptly heard and decided on.

x. Formal recognition of the harm

In Peru, some individuals were granted declarations of absence to recognize that a family
member had been disappeared.162 This not only provides symbolic recognition but also has
practical benefits, enabling family members to claim their civil and inheritance rights.163 The
introduction of a similar certificate of absence164 in Sri Lanka is commendable.

xi. Job quotas and cancellation of loans

The Consultation Task Force in Sri Lanka highlighted that job quotas in certain sectors, such as
the public service for victims could be beneficial, as well as the cancellation of loans taken by
those killed, missing or disappeared.165

It is apparent from the experiences of other jurisdictions that while monetary compensation
may provide temporary support for many victims, that alone will be insufficient as it cannot
effectively repair all harms suffered. The policy designed by the Office for Reparations will
need to provide a range of individual reparatory measures to holistically address harms
suffered. It must again be highlighted that victims need to be consulted and included in the
designing of such a policy.

3. Guarantees For Long Term Implementation

The legal requirement that policies formulated by the Office for Reparations need to be
approved by Cabinet is a significant risk to their sustainability.166 Even if proposed policies are
approved, there is no guarantee that they will not subsequently be rolled back by the same
body. This challenge is not endemic to Sri Lanka. For example, reparations policies defined in
Guatemala through government resolutions, have often changed due to political changes in
government.

160      UN HRC, Report by the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non- recurrence, Pablo de Greiff, Mission
to Tunisia (11-16 November 2012), UN Doc. A/HRC/24/42/Add.1.
161      ibid.
162      ‘The Rabat report; The Concept and Challenges of Collective Reparations’, (2009) ICTJ <https://www.ictj.org/publication/rabat-report-concept-and-chal-
lenges-collective-reparations> accessed 24 November 2019 at 30.
163      ibid.
164      The Registration of Deaths (Temporary Provision) (Amendment) Act No.16 of 2016
165      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 63.
166      See Chapter 2 Part I
Reparations mechanisms must be able to guarantee certainty and continuity of reparations
processes, else they become a mockery of victims. This is especially true about long-term
measures such as pensions, health care provisions, educational provisions, and other
45
support measures. To this end, the State must also ensure that the mechanism can carry out
its policies with the necessary independence and funding.

INTRODUCTION TO
REPARATIONS
WHAT?
Measures taken by the State, to compensate for and repair grave harms which
were committed by the State, or not prevented by the State.

WHY? HOW?
1960-2020
SYMBOLIC Restitution
To publicly acknowledge the
extent of the harms suffered by Compensation
victims & victim communities
Rehabilitation

MATERIAL Satisfaction
As far as possible, to return
victims & victim communities
Guarantees of
to their original position by Non-Recurrence
restoring what they have lost

Reparations must be accompanied by accountability, truth-telling and reform. By

itself, they belittle the experiences of victims, and hinder restoration.

Reparation does not require establishment of the violations committed, only that
the beneficiary suffered a resulting harm.
 III. Implementation Of Individual Reparations
46
The Act on the Office for Reparations gives the Office an executive role in implementing
reparations policies that are approved by Cabinet.167 This section discusses procedural best
practices for implementing such policies on individual reparations.

1. Consultations and Outreach

Consultations and outreach must both be essential components of the work of the Office
for Reparations. Both these measures are the greatest contributors to a transitional justice
mechanism that is primarily centred around and caters to victims. They are also essential
tools to building stakeholders’ trust and confidence in the institution, which is vital if the Office
is to claim legitimacy. Beyond these broader contributions, consultations and outreach
programmes can also be useful in identifying and registering potential beneficiaries and
building more lines of communication to broader victim communities.

These elements are seen in other reparations mechanisms. For example, in Peru, prior to
registration, the Reparations Council organized public gatherings convening all different
local actors and authorities to consult how to reach the community.168 The Transitional
Justice Commission in Morocco held publicized and televised seminars in multiple regions,
culminating in a national forum on reparations involving local and international NGOs and
subject-area experts. The forum was very popular and resulted in a major consensus on
priority-setting policies. The Commission maintained this momentum through consultation
with relevant stakeholders throughout its work.169 This exemplifies a transparent, participatory,
and consensus-building approach to reparations policy-making.170

The first stage of an outreach programme for the Office for Reparations should focus on
meeting with victim communities across the country, and earning their trust. To the end,
the Office should set up focus group discussions and community meetings, and coordinate
and publicize different dates, times, and locations to encourage participation and feedback.
It would be ideal if members of the Office were present at this first meeting with potential
beneficiaries, signifying the Offices commitment to a credible and victim-centered process
at the highest levels of the Office. Such outreach efforts should ensure that they are accessible
to all participants, prioritizing language sensitivity, active listening and the participation of
groups and communities which are vulnerable and marginalized.

Most importantly, outreach programmes must ensure that the line of communication is
bilateral, and that victim voices and concerns are heard and honestly responded to. The Office
for Reparations in Sri Lanka is likely to encounter mistrust, overt antagonism and dismissal,

167      The Office for Reparations Act, No. 34 of 2018, s.11 (1) g and h.
168      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Pro-
cesses for Victims of Human Rights Violations’ ICTJ (2017) 47.
169      Eric Wiebelhaus-Brahm, ‘EarlyTransitional Justice in the Arab World: Lessons Learned’ (2016) 23(3) Middle East Policy.
170      Cristián Correa, Julie Guillerot, Lisa Magarrell, ‘Reparations and Victim Participation’ in Carla Ferstman, Mariana Goetz, Alan Stephens (eds) Reparations
for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff Publishers, 2009) 404-
405.
based on the failures of past commissions and governments. The Office must ensure that
it does not respond with defence and dismissal, but rather acknowledge the failures of past
bodies and consistently communicate their commitment to and plans for the process. It is
47
also important that the Office is honest about potential challenges, and that it manages
expectations.

One way to strengthen outreach is to work with individuals or organizations which are trusted
by the communities. Sri Lanka’s own consultations process was largely conducted by or with
local civil society actors who had worked with communities on a personal basis. Given that
in 2016, Sri Lanka was just emerging from State-sponsored repression, the involvement of
trusted and recognized individuals played an important role in drawing victims to participate.

Outreach initiatives cannot be limited to meetings and dialogue. During outreach gatherings,
victims might share their poverty or state their immediate needs. Here, the Office must provide
interim assistance. Not only is this a part of the Office’s mandate, but it can also be a way for
the Office to display its commitment to the needs and welfare of victims, thereby building
trust.

While outreach should be one of the first steps taken by the Office for Reparations, it should
not be limited to that stage. The Office should maintain a direct line of communication with
affected communities for two reasons. First, to ensure that their feedback is heard and
incorporated. Second, so that those communities remain updated on the work of the Office,
including challenges and successes. The Act also mandates the Office to advice victims on
rights and procedures of other transitional justice mechanisms, such as the Office for Missing
Persons.171 An established line of communication through outreach efforts will allow for this
exchange of information to take place more smoothly.

2. Designing The Reparations Process

The Office for Reparations should develop its policies along the same timeframe as initial
consultations. This will allow for information received at those meetings to also inform policy,
especially when considering who should be eligible and prioritized for reparations. As explored
in previous sections, the Office should map the different categories of victims and the impact
of different harms on different individuals and communities. During the process, the Office
should inform and consult victim groups, civil society and experts, to formulate a credible
process that addressed the needs in Sri Lanka. It should also inform other State institutions
that will need to be involved in the reparations process in the provision of services, housing,
education, or social security administration.

For budgeting purposes, the final comprehensive policy should include an estimation of
costs, based on the number of victims that are expected to be registered, and the envisioned
reparatory and administrative measures.

171      The Office for Reparations Act, No. 34 of 2018, s.11 (1) l.
 A serious policy based on broad consultation and technical expertise will be more credible
and legitimate. This may influence Cabinet to approve the policy sooner, and allow less room
for the policy to be delayed or the object of partisan debate.
48

Once the policy has been approved by Cabinet the Office must then initiate implementation,
beginning with the registration of victims.

3. The Information Needed For Registration

If the policy establishes a process of individual assessment, the Office for Reparations should
have information on individual harms suffered, as well as indicators on factors such as
vulnerability. Where possible, the Office should also obtain existing evidence. This can include
previous police complaints and letters of acknowledgement from other State institutions.

If the socio-economic condition of victims is relevant for determining the types of reparations,
or the compensation amount will be individually determined based on loss of income,
registration needs to include relevant questions on the current socio-economic situation of
the individual and the income the person received.

In this context, the Office must be cautious that the questions asked and the process do
not retraumatize victims. It must also ensure that the process is not so cumbersome as to
discourage victims from approaching the Office. Given the detailed information needed, this
process will also require greater cost and time.

On the other hand, if the reparations policy is based on standardized measures applicable
to all victims of the same categories, the only information needed relating to the existence
of the violation and the identity of the victim. In the case of relatives of victims of killing or
disappearance, the relatives should also state their relationship with the victim.

These two approaches are very different for registration purposes. The first one leads to
complex forms and the requirement for extensive documentation, which victims often lack
access to. The complexity of this process will likely require registration and verification in
offices, instead of allowing for mobile units to go to distant localities for registering victims.

The advantages of standardized reparation measures for registration purposes are self-
evident. If the Office does not need to assess harms or obtain detailed proof of those harms,
registration can be more accessible. Such a process would also encourage the participation
of those with less formal education, fear of stigma or reprisals, those who lack documentation,
and those intimidated by complex bureaucratic processes. These are usually vulnerable
profiles, including the poor, women, the disabled and the elderly. A standardized process will
also reduce the administrative costs of the registration and verification process, as fewer
staff is required. The whole process will also be faster, allowing a greater number of victims to
be registered in a period of a year.
 4. Designing The Registration Form
This form will be the documentary representation of an extraordinary, direct and personal
experience for victims. The process of formulating a registration form is therefore extremely 49
important.172 The design of the form should be informed by consultations with victims and civil
society, to ensure that the document is clear and easy to fill. The form should include all the
information needed to determine if a person is entitled to reparations, and how to locate him/
her for later implementation.

Importantly, the entire registration process must be free of charge. Additionally, the Office must
be wary of third parties would take advantage of individuals and promise representation and
advice for a fee. Several programs, like the ones in Chile, limited third party representation of
victims to cases of proven incapacity. Accordingly, it did not generally allow lawyers to act on
behalf of victims.

5. Receiving Applications For Reparations

The Act refers to the Office for Reparations receiving ‘applications from aggrieved persons
or representatives of such aggrieved persons’ 173. The Office could interpret this in such a way
that victims and representatives must always travel to the Office to present applications.
However, considering the victim-centered mandate of the Office and the need to reach all
victims, the Office must be proactive about establishing primary contact with victims.

In Peru and Sierra Leone, registration was not limited to offices spread throughout the country,
but also to mobile units, which travelled to remote localities. This was preceded by outreach
efforts and consultation with local organizations. Such efforts included employing registrars
of different ethnic backgrounds and gender and training them to guarantee their capacity
to communicate trust.

The Office for Reparations should establish regional units and sub-units to ensure that
victims need not travel to the capital to lodge applications. Further, it should regularly deploy
staff from those regional units, to reach victims in remote areas that may have difficulty
in travelling to the Office. Reparations cannot be seen as an adversarial process, where
applicant are expected to overcome bureaucratic hurdles and prove themselves. To this end,
the application process cannot be a burden on victims. Rather than requesting the victim
to provide extensive documentation and other evidence, the Office must be proactively
involved in making the process simple and easy for victims. Although the Act makes provisions
for administrative support, travel reimbursement, psychosocial support, and protection to
victims,174 as mentioned earlier, it lacks a clearer mandate to be more involved in the process
of registering victims. Hence, it falls to the Office to adopt an interpretation that is proactive
and victim-centered.

172      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Process-
es for Victims of Human Rights Violations’ ICTJ (2017) 2.
173      Office for Reparations Act, No. 34 of 2018, s.11(1)(b).
174      Office for Reparations Act, No. 34 of 2018, s. 11(1).
 Accessibility of the registration process is critical, given the deficit of trust that already exists
between the State and victims. This is compounded by challenges such as misinformation
and obstacles in submitting applications. By being proactive and involved in the registration
50
and application process, the Office can strengthen its relationship with victim communities.

REGISTERING
AFFECTED
1.
PERSONS
The Registration Process should not be too Complex,
Time Consuming, and Invasive.

2. Establishing Regional Offices in Areas with High Concentrations

of Victims who face inconveniences in Accessing Justice.

3. A Clear, Well Publicized Time Period should be given for

registration.

4. Transparency of Procedure & Communications with Victims

at different stages of the process is essential.

6. Victims’ Representation And Intermediaries

The Act refers to applications being brought by representatives of aggrieved persons.175
Even if representation in some cases can facilitate accessibility, it runs the risk of formalizing
the process as well as fuelling an industry of intermediaries that may benefit from the
misinformation and vulnerability of victims.176 Representation is important in accessing courts,
in making sure that applications are adequately completed, and all documents are attached.
In the case of the Office for Reparations however, such expertise is not required. Nevertheless,
intermediaries such as lawyers can exploit victims’ ignorance and charge significant portions
of the compensation amounts, manipulating victims’ stories to create false claims.177

In countries like Chile, Peru, and Colombia, registration had to be done in person, unless it
was certified that the disability or health condition of the victim made it impossible for her
or him to go to the registration office or to be reached by a mobile unit. In the case of Chile,
the representative in these cases then had to be a next of kin. This limited the intermediaries
from accumulating a pool of victims. A simple process of registration, that does not involve
assessing complex questions about harms, in addition to a proactive process of reaching

175      Office for Reparations Act, No. 34 of 2018, s. 11 (1) b.

176      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Pro-
cesses for Victims of Human Rights Violations’ ICTJ (2017) 56.
177      ibid.
victims to register are better strategies to counter the risks of representation. The Office
for Reparations, in its by-laws, could establish regulations to interpret the reference to
representation made in section 11(1)(b). It could also train its staff to provide the same advice
51
and expertise free of charge, where such assistance is needed.

7. Registration period
Victims should be given a clear period of time for registration. This information must be
communicated well, through all possible avenues such as the media, civil societies and
other groups associated with victims. The Office for Reparations must also issue reminders
when the time for registration is coming to an end. If certain victims have not been able to
lodge their claims before the close of the registration period, provisions should be made to
accommodate this. Due to the information gap that often exists around these policies, it is
important to consider the disadvantageous position of victims where there are strict time
frames involved. Thus, the definition of the registration period is not an easy one.

The period should be defined based on the capacity to perform outreach, the general
conditions of trust about the reparation effort including the absence of fear of retaliation.
Along with this, victims must trust that registration will lead to effective forms of reparation
and trust the capacity and integrity of the Office. If it is not trusted by some segments of the
victims’ community, registration may require a longer period, during that trust can be built.
Additionally, in many cases registration had to be reopened, sometime several times, such as
in Argentina and Chile. Colombia allowed registration throughout the process. In Peru, while it
was closed for the compensation program, it remained open for other programs on housing,
education, and rehabilitation.

Closing registration at a certain time offers some advantages for the definition of the policy.
it gives certainty about the numbers and categories of victims and beneficiaries, making it
easier to budget. It also reduces the risks for encouraging false claims that could be stimulated
once the first payments appear. However, closing is not essential for budgeting. After a period
of registration, once a critical mass has been registered, it is possible to design the policy and
formulate a budget based on the extrapolation of the results and estimates.

8. Verification And Standards Of Evidence

The Act on the Office for Reparations acknowledges that the Office will need to assess the
veracity of applications. To this end, the Office for Reparations will need to develop some
objective criteria which can be easily followed.

In formulating a verifications process, the Office must remember that reparations processes
need not uphold judicial standards of proof despite occasionally using the language of
‘violations’ and ‘crimes’. While a judicial proceeding is centered on accountability and liability,
the reparation process’ primary goal is to benefit all persons who have suffered harm.
Accordingly, its verification process should be inclusive and victim-centered.
 This approach differs from previous policies implemented in Sri Lanka. For example, the
REPPIA treated each registration as a claim and required extensive documentation. However,
at a later stage, the REPPIA also relaxed this in practice and stopped rejecting applications
52
based on insufficient documentation. If an applicant could establish that the loss or harm
was caused by violence, the REPPIA accepted it. However, according to the LLRC, this practice
was not uniformly applied by other State institutions which were also involved in identifying
victims and assisting with reparations. For example, some Grama Niladaris decided that they
couldn’t proceed with applications if the victims couldn’t certify that they were not involved
with the LTTE.178

In Chile, the National Commission on Political Imprisonment and Torture adopted flexible
criteria to verify the existence of a violation.179 It evaluated the context surrounding the alleged
incident and based its assessment on a balance of probabilities. In doing this, it collaborated
with civil society and key trusted informants among the victim community who were familiar
with the history of the harms suffered by different communities.

Morocco’s Equity and Reconciliation Commission, was tasked with establishing the truth about
violations and providing reparations. It accepted at face value the testimonies it received
and assumed the burden of proof.180 Limited access to written records from State ministries
and police files made reliance on oral testimonies necessary.181 Rather than employing
subpoena or search and seizure powers, the Commission collected evidence from other
State institutions.182

9. Documentation
Generally, a process of verification would begin with an examination of existing documentation.
The Office must, however, remember that many victims will not possess all documentation
relating to the harms suffered, and even as to their own identity. Many of these records would
have been lost accidentally, while others would have been lost in the chaos of war and
displacement.

Missing documents could include personal records and documents proving relationships,
such as birth, marriage and death certificates. They could also include documents relating to
the harm suffered. For example, this could include medical records or State acknowledgement
of a disappearance. Victims may also not have medical records, particularly if they were
injured in the heat of the war. While some injuries can still be established years after they
were inflicted, others such as those resulting from rape and sexual violence would since have
healed.

178      Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011) 247.
179      Informe de la Comisión Nacional Sobre Prisión Política y Tortura (2005) <https://bibliotecadigital.indh.cl/handle/123456789/455> accessed 20 January
2020.
180      UN OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: National Consultations, n (41) 17.
181      Susan Slyomovics, ‘The Moroccan Equity and Reconciliation Commission: The Promises of a Human Rights Archive’ Arab Studies Journal (2016) 24 (1) at
15
182      Veerle Opgenhaffen, Mark Freeman, ‘Transitional Justice in Morocco: A Progress Report’ ICTJ (2005) 15.
Although significant time has passed since the conflict and some of the lost documentation
can be traced, victims are often hesitant to approach Government institutions for fear of
discrimination, bureaucracy, sexual violence and bribery.183
53

The Office for Reparations must also take into consideration harms that are not apparent
on the surface, especially relating to mental trauma and disability. Given how mental health
issues are stigmatized in Sri Lanka, and the lack of qualified psychiatrists, most victims of such
harms will never have had a medical assessment of their mental health. The Office must
ensure avenues for the Office to provide appropriate assessments. Where the Office identifies
victims who have mentally delipidating conditions, it may refer them for further medical care
and psychosocial support. These in themselves may constitute interim reparations.

In dealing with these challenges, the Office for Reparations will need to ensure that this lack
of documentation does not bar victims from obtaining reparations. The Office may develop
measures and units to assist victims to trace government-issues certificates and registrations.
Where this is not possible, the Office must develop alternate tracks to verification. These
may include interviews with victims who lack documentation, as well as inviting witnesses
to testify to the truth of such applications. The Office may also choose to accept non-
official documentation to verify the application. In Peru, the difficulties involving obtaining
identification documents to prove to be a relative of a victim was overcome by accepting no
official documents, like certificates of baptism, or even the statement of local leaders.184

More broadly, the Office for Reparations must inform itself on existing information on patterns
of violations and harm recorded in Sri Lanka, as recorded in credible sources. These credible
sources must include international reports including those commissioned by the UN, and
not be limited to domestic commissions which are accused of bias. This broader contextual
evidence will enable the Office to assess applications on the balance of probabilities and to
identify irregular violations and harms.

10. Ethics And Due Process

To ensure that the verification process is free of corruption, bias and political interference,
the Office for Reparations must ensure that its staff is also pluralistic, reflecting the diversity
of Sri Lankan society. Given that many of those approaching the Office will be vulnerable to
corruption and abuse, the Office must also ensure that its staff is vetted for both integrity and
capacity.185

To ensure confidentiality, all applications and related documentation received must be

examined sensitively and discreetly. As far as possible, the Office should work to avoid re-
traumatization, via cross-examination or medical tests. Where these are necessary, the Office
must ensure that victims are treated with respect and sensitivity. Concerning medical checks,

183      Shrouded in Secrecy’: Sexual Bribery of Muslim Women in Post- war Districts’ Centre for Equality and Justice (2018) <http://cejsrilanka.org/wp-content/
uploads/Shrouded-In-Secrecy.pdf> accessed 25 December 2019.
184      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 9.
185      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Process-
es for Victims of Human Rights Violations’ ICTJ (2017) 56-57.
 the Office must ensure that there is informed consent and that the needs and preferences of
victims are considered.
54
Where further corroborative information is necessary, the Office should avoid retraumatizing
victims by initially approaching other State institutions. This would include access to judicial
and police records, and records from the prison system. It may also refer to press and
journalistic reporting and reports by civil society organizations, although these would need to
be vetted for their credibility.

Although the above discussion on verification has been premised on the language of the Act,
the Office for Reparations is not bound to include such a process in its policy. While reparations
aim to repair and restore harms suffered by victims, a verification process could easily re-
traumatize and belittle them. An alternative to this approach is to presume applicants’ good
faith, accept applications as being true, and to issue reparations to all who apply, as was
done in Morocco.

This suggestion would not, however, factor in the limitations on resources that will be
available to the Office for Reparations. Instead, the Office could proactively assume the role of
independently researching and verifying applications. A similar structure was adopted in Chile,
where the commission that registered victims of torture did not request documentation from
applicants but did its research. It found documentation in only 60% of the cases it recognized
and was able to reach positive conclusions on the remaining based on the coherence of the
applicant’s testimony and the corroboration of such harm by pre-documented cases186.

Such a process need not be laborious. In contexts where mass violations have occurred, it
is safe to assume that certain consistently reported harms did occur in a widespread and/
or systematic way. Corresponding testimonies and credible documentation efforts can be
used to establish patterns of violence.187 Based on a study of these patterns, the Office for
Reparations could establish a standardized procedure and standard to verify applications.

11. Transparency And Communication With Applicants

Throughout the reparations process, the Office should ensure transparent communication
with applicants. Section 11(1)(v) states an obligation of the Office to periodically inform
aggrieved persons about the status of their applications and respond to queries promptly.
This gives the Office for Reparations the duty to proactively communicate with and update
applicants, regardless of their continued interaction.

The CTF report recommends that the Office develop and publicize clear and transparent
“mapping of past and ongoing efforts at compensation and reparation and of criteria for
beneficiary selection”.188 With that in mind, the Office should be transparent, with meaningful,

186      Interview with Cristian Correa, 20th January 2020

187      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Process-
es for Victims of Human Rights Violations’ ICTJ (2017) 54-56.
188      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 440.
accessible, and frequent communications to stakeholders. All procedures and standards
should be publicized in all three languages, across the various forms of media. In particular,
CTF respondents highlighted the need for accurate translations into local languages.189 The
55
Office must ensure that all information is shared in all three languages.190

The Office should also provide a secure and central database that contains important
information and updates, and which is accessible by all of the regional offices. The Reparations
Council of Peru, for example, offers an online search mechanism to look at the progress
of applications.191 If needed the Office could consult with international donors or NGOs for
assistance on developing such a system.

12. Decision On The Application

The internal regulations of the Office must lay out how decisions on applications should be
made. One possibility is that the decision is made by all the members, who decide based on
a recommendation sent by the verification unit. This decision will need to explain the reasons
for inclusion.

Registration processes dealing with large numbers of applications have standardized their
decision-making procedures, to enable them to easily streamline most cases, while more
attention is focused on contentious cases.192 In these cases, the verification team sorts
out the applications, into three categories. First, applications that contain little/ no doubt,
either because they have been included in previous policies or on official reports, or have
sufficient evidence. Second, applications which contain substantial contradictions, where the
recommendation is to reject. Third, applications which require careful examination by the
members, as there may be no clear verdict. Such cases may also raise new issues that can be
thought through, then added to the standardized policy on decision making. The verification
team should also flag cases of political sensitivity for careful examination by the members.
Politically sensitive cases must be handled with greater care due to the attention those cases
may get and their implications for victims.

Organizing cases under these categories may allow the Office to process a large number of
applications easily. These, combined with clear guidelines on decision making and evidentiary
standards, would also build an effective and speedy implementation of reparations.

The result of the application should be communicated to applicants. In some cases of massive
registration, the complete list of those registered is published along with the decision, and
followed by individual communication to the applicants.193 This individual communique also
guides them on how to exercise in the reparations process. These can include directions on

189      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol I (November 2016) 5.
190      Jeremy Webber, ‘Forms of Transitional Justice’ in Melissa S. Williams et al. (eds) NOMOS LI: Transitional Justice (New York University Press 2012)
191      Consejo de Reparaciones, Registro Unico De Victimas <http://www.ruv.gob.pe/RUV/ConsultasLinea/Libro01/listado_busquedaweb.aspx>accessed on 30
January 2020.
192      Ruben Carranza, ‘The Series of Reparation Programmes in Chile’ ICTJ <http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/110331ictj.pdf>
accessed 17 January 2020.
193      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Process-
es for Victims of Human Rights Violations’ ICTJ (2017) 42.
 how to obtain compensation amounts or the steps required to start receiving pensions, or
where to obtain psychosocial support, medical support, etc.
56

13. Rejection Of Application

If the Office for Reparations is not satisfied that the aggrieved person or victim suffered the
violation mentioned, or that the person does not have the necessary family link to a direct
victim, the applicant must also be informed, explaining the reasons for the rejection.

Some policies have included a revision procedure, where the applicant can provide additional
information to appeal the decision.194 Revision can be done by the same Office or by an
external body, like a court or tribunal. There are significant advantages when revision is done
by the same Office – either by the same members of the Office who decided the case or by
adding some external actors to provide additional input. An internal process helps maintain
consistency of the decisions, considering the standards and criteria defined by the Office
during the whole decision process. However, if the integrity and independence of the Office
have been compromised, a wholly internal process will prevent applicants from obtaining an
objective review.

The possibility of having an external body reviewing rejected applications can pose some risks
as they may be assessed based on different standards. Revision by a political body, like the
Cabinet or a body from the Executive branch of government, will likely politicize the process
and affect its credibility. It may also jeopardize the need for confidentiality on the identity of
victims and the details of the violations they suffered. Revision by Courts also poses a risk,
as Courts have different standards for making decisions. Additionally, it would necessarily
involve legal representation, which could result in obstacles for those who cannot access a
lawyer or meet the expenses of representation.

To address concerns on both sides, a separate appeals tribunal could be set up, with the sole
mandate of reviewing decisions of the Office for Reparations. This should consist of individuals
who have shown integrity and a vested interest in the wellbeing of the affected communities,
ensuring that decisions are made impartially, and with the best interest of victims in mind.

194      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Process-
es for Victims of Human Rights Violations’ ICTJ (2017) 42.
STEPS TO DEVISE A
REPARATIONS 57

POLICY

1. Public consultation with

stakeholders (victims, civil 2. Assessment of victims’ needs:
identifying violations, assessing
society actors, international harms suffered, assessing
experts) economic needs

3. Defining types and forms of

reparation based on 4. Calculation of costs,
identification of
assessment implementing agency

Guaranteeing the availability

5. of the resources needed for 6. Submission of policy to
Cabinet for approval
implementation, and for
operation and maintenance
of the projects

7. Submission of approved cabinet

policy to Parliament
58

Chapter Three

Policy on Collective
Reparations
Collective reparations aim to provide redress to groups of citizens that have suffered due to
their group identity or geographical location. The ambiguity of the term “collective reparations”
leads to some complexities in defining relevant policies, considering that “collective refers to
both the nature of the reparation (i.e. the types of goods distributed or the mode of distributing
them) and the kind of recipient of such reparation (i.e. collectives and communities).”195

59
This chapter discusses the mandate of the Office with regards to collective reparations and
the types of collective reparations that may be included, concerning best practices informed
by comparative cases.

The Act defines collective reparations as

“measures […] intended to recognize the right to an effective remedy and benefits to the
communities or groups of aggrieved persons and shall include –
(a) means of remembrance of deceased persons, including memorials;
(b) development of infrastructure;
(c) educational programmes, training, and skills development programmes;
(d) community development programmes or services; and
(e) other appropriate programmes as identified by the Office of Reparations in
consultation with affected communities;”196

This definition gives the Office broad discretion in designing a policy to address collectively
suffered violations. As the Office devises this policy, it must be mindful of the guiding principles
in the preamble of the Act, Accordingly, as with individual reparations, policy for collective
reparations should be based on the acknowledgment of reparations as remedies to violations
and harms suffered.197

Such acknowledgement is vital to distinguish collective reparations from more general

assistance and development programmes. Also, collective reparations cannot be morphed
into the State’s preexisting efforts to guarantee socio-economic and cultural rights, such as
universal education, health care, poverty alleviation, and other basic services.

The boundaries between collective reparations and broader national development

programmes can be tenuous since they often overlap in impact. Collective reparations must,
therefore, be accompanied by a clear acknowledgement that they aim to remedy the harms
suffered by specific communities.

195      Report by the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non- recurrence, Pablo de Greiff, presented to the
United Nations General Assembly on 14 October 2014, UN Doc A/69/518.
196      Office for Reparations Act, No. 34 of 2018, s. 27.
197      ibid s. 2 (a). See also, the preamble of the Act.
 I. Types Of Collective Reparations

1. Memorialization
60 Memorialization, as an integral part of the transitional justice process, is a means of honoring
those who died or suffered in a past conflict or other contexts. Some argue that memorialization
efforts are rooted in all four pillars of transitional justice – “archives and history relate to truth-
seeking, demanding accountability relates to justice, memorials and public apologies relate
to reparations, and contributing to law and policy-making relates to non-recurrence”.198

Memorialization can take many forms, including oral history, written works, religious rituals,
ceremonies of commemoration, observations of special days, and the building of memorials
and museums.199 Renaming of streets and public spaces is another important form of
memorialization.

In Morocco, efforts to preserve national memory included converting detention facilities into
memorial sites. There were also specific awareness-raising campaigns on women’s suffering
during the conflict. Victims’ testimonies were collected and compiled into publications and
documentaries. In Tunisia, the Decree-Law No. 97 made provisions to include the narrative of
the revolution into educational curricula.

The narrative on the Cambodian genocide, like Sri Lanka, also highlighted ‘the binary between
hero and perpetrator’. The attempts at memorialization in Cambodia were successful
because they combated this binary, included the participation of both groups and ensured
that both sides of the story were heard and reflected.200

In Colombia, Law 1448 establishes certain measures to be implemented as forms of

satisfaction and guarantees of non-repetition.201 Following this, several measures have been
implemented including the establishment of the Center for Historical Memory which collects
and preserves testimony from victims. It also conducts investigations and research regarding
gross human rights violations that may require reparations.

However, memorialization can be a divisive force as well. In Sri Lanka, the State has raised
multiple memorials to the military, displaying a triumphalist message. These are largely
built in the North and the East, which are populated by minority communities who were
seriously harmed by the military. Meanwhile, the State has also suppressed communities
from any memorializing or remembrance of LTTE combatants and has desecrated their
graveyards. Such an approach to memorialization can often further divide, exclude and
suppress communities. Similarly, the recent play ‘Lest We Forget’ came under some criticism

198      ‘Memorialization and Reparation- A Report of Four Dialogues’, International Centre for Ethnic Studies (2016).
199      ibid.
200      ibid.
201     R.Marín, Claudia Paz y Paz Bailey and Julie Guillerot, ‘Indigenous Peoples and Reparations Claims: Tentative  Steps in Peru and Guatemala’, ICTJ
(June 2009)18 <http://www.ictj.org/sites/default/files/ICTJ‐Identities‐Reparations‐ResearchBrief‐2009‐English.pdf> accessed 24 November 2019 (See also,
Cristián Correa, ‘From Principles to Practice: Challenges of Implementing Reparations for Massive Violations in Colombia’ ICTJ (October 2015) 20..
from Sinhalese audiences since they felt that their pain and loss were not given the same
prominence as that of the Tamil and Muslim community.202 The Office for Reparations must
consider the impact of memorials on different communities, and seek to find common ground
when possible, as was done in Cambodia.

61
2. Development of Infrastructure
Development has a vital role to play in transitional justice efforts. Development, however,
should not be a substitute for reparations. It is instead a right for all, while reparation, as
explained earlier (cf supra Chapter 1) is a right only for a specific subset of people.203 Ideally, all
citizens should be able to enjoy equal standards of living and developmental projects should
be aimed at addressing that.

In reality, a result of conflict or violence is that areas where victim communities live, are grossly
underdeveloped with limited infrastructure and access to basic services. In some cases, these
are remote areas that have remained undeveloped. In others, formerly well-developed areas
have been destroyed by heavy fighting. The economy in these areas often lags behind the
rest of the country. While the State must carry out focused development work in these areas,
this alone cannot be subsumed into or substituted for reparations.

If development and infrastructure projects are included in the reparations process, the Office
for Reparations must acknowledge that they are part of a broader remedy for harms suffered
by affected communities. It must also be mindful that governments may seek to avoid
other transitional justice measures by arguing that they only have resources to advance
development. The Office must oppose this and strongly advocate for accountability, tracing,
truth-telling and individual reparations measures alongside collective development.

Development and infrastructure-related reparations must also seek to directly impact

affected communities. In the North and East of Sri Lanka, affected communities have
criticized large development projects which tend to bring in and employ people outside the
impacted communities, and fail to contribute to the local economy.204 In fact, after nearly
a decade of post-conflict large economic development projects, the unemployment rate
in Jaffna remained the highest in the country at 10.7 percent in comparison to the national
rate of 4.2 percent (Labor Force Survey 2017205). It is therefore essential that communities are
consulted not only on the type of development infrastructure but also on how they should be
implemented. 206

202      ibid.
203      ‘Reparations, Development and Gender’ Report of the Kampala Workshop 2010 (UN Women and UNDP).
204      Dhammika Herath, ‘Post-War Reconstruction in Sri Lanka: Prospects and Challenges’ (International Centre for Ethnic Studies 2010).
205     Sri Lanka Labor Force Survey- Annual Report, Department of Census and Statistics (2017) <http://www.statistics.gov.lk/samplesurvey/LFS_Annual%20
Report_2017_version2.pdf> accessed 20 January 2020.
206      (cf infra section 3.4 devising community reparation plans).
 3. Educational, Training and Skills Development Programmes
In recent years, there has been an increased focus on the relationship between education
and conflict. The importance of education as a tool in educating young minds, and sensitizing
them to various issues cannot be ignored.207 In the aftermath of a conflict, values necessary
for peace and understanding must be inculcated, and misinterpretations must be dispelled.
62
During consultations, victims tend to give significant importance to education, since many
victims saw their life plans affected by violence, and lost education certificates or the
opportunity to study. In other cases, after some time, victims may believe that their situation
cannot be fundamentally improved, but they want their children’s chances to be bettered
through education.

Education, vocational training or other skills development programmes could be a means

of empowering children and the youth who would benefit from these in the long-term.
Discontent among youth - especially in the face of unemployment and lack of opportunities
- creates a breeding ground for a return to conflict. Education scholarships and vocational
training would be a long-term investment as it could make individuals skilled in labor and
consequently, financially stable, breaking a vicious cycle of economic deprivation.

In Peru, the law seeks to provide access to education and literacy programs to those whose
education was disrupted by the hostilities. Educational programs include access to primary
education and vocational training. The program also provides scholarships covering books,
tuition, meals and transportation for students. The most severely affected areas were intended
to be treated as a priority for this program.

On the other hand, it must be considered if social services and training programmes can act
as reparations. Importantly, do they provide a reparatory effect? While these programmes
may be much needed in these communities, it must be discerned whether they are suitable
and sufficient to acknowledge the human rights violation that has taken place.

This reiterates the need for victim participation in policymaking, allowing victims themselves
to identify types of collective reparations they would deem appropriate and beneficial for the
violations which have taken place.

207      Clara Ramírez-Barat and Roger Duthie, ‘Education and Transitional Justice: Opportunities and Challenges for Peacebuilding’ (2015).
II. Comparative Experiences
Countries facing similar situations have adopted diverse approaches in designing collective
reparations policies, proving how undefined this concept is. Even if there have been discussions
and recommendations on collective reparations in several post-conflict or post-authoritarian
63
scenarios, the most interesting ones to examine are the ones who have implemented them
or are at an advanced stage of implementation. These cases are Peru, Morocco, Aceh, and
Colombia. Collective reparations processes in South Africa, Kenya, Liberia, Timor-Leste, and
Tunisia, even if interesting, have not reached any significant degree of implementation. The
diversity of the approaches used in the four countries mentioned offer ideas on how to define
such a broad notion, while their implementation strategies evidence the advantages and
shortcomings of those approaches.

1. Peru Collective Reparation Program For 1980-2000 Internal

Armed Conflict
In Peru, collective reparations have been implemented based on a selection of
the communities most seriously affected by the armed conflict. Most of them refer
to small rural communities of the highlands or indigenous communities of the
Amazon basin, all of which are communities with strong social and cultural links and
interdependency. On a smaller scale, the program also includes organized groups
of displaced people who had permanently resettled, to strengthen their condition
of resettlement. The factors considered include a high concentration of individual
violations, communities razed to the ground, massive displacement, killings of
community leaders or destruction of institutional infrastructure, destruction of family
infrastructure, and destruction of communal infrastructure.

In ten years, the Reparations Council has identified 5,712 communities as the most
severely affected. Based on that list, the Government has implemented projects in
1,852 of those communities.208 These are single investment projects per community,
for an amount equivalent to USD 37,000, which totals approximately USD 70 million.
The project is selected by the community, and its implementation is controlled by
a committee of five community leaders which must include at least two women.
Reparative measures include memorialization and symbolic activities. These include
memory recovery activities to identify the history of the community, the harm they
suffered and celebrates community resilience.

The wide implementation of this policy ensured that it benefitted isolated and
marginalized communities. Another positive aspect was the strong community
participation in its implementation. However, since the policy was limited to a single
project per community, it did not have much impact in improving the long-term living
conditions of the community members, or in addressing the serious consequences
of the violence they suffered.209

208      Consejo de Reparaciones, Informe Todos los Nombres (2018) 9.

209      Cristián Correa, ‘Reparations in Peru: From Recommendations to Implementation’, ICTJ (2013) 12.
 2. Morocco Collective Reparations For The 1956-1999 “Years
Of Lead”
Morocco adopted a different approach to collective reparations to address the consequences
of political repression. In addition to individual reparations, the Equity and Reconciliation
Commission of Morocco identified 13 regions severely affected by State repression,
64 socioeconomic marginalization, and discrimination on the provision of basic services and
public investment. To address those consequences, it created a fund of approximately USD 21
million, for organizations located in those regions to present investment projects.

The result was the implementation of 149 projects per region, including memorialization
initiatives, transforming a former secret jail into a community center, center for the provision
of basic services, skills training and community development, economic empowerment
activities, etc.210 Some of these projects were implemented by and for women.

However, the methodology of making local organizations compete among each other
to obtain resources limited the capacity of marginalized groups to obtain projects. The
patchwork of projects in each region weakened the ability of the policy to comprehensively
address the impact of exclusion and discrimination, that affected all those regions.211

3. Aceh: Community-Based Reintegration Assistance For

Conflict Victims Program
The programme in Aceh reintegrated ex-combatants and responded to the needs of
conflict-affected communities under a peacebuilding initiative. This was not done as
reparations for violations committed. The program attempted to consolidate peace after
30 years of separatist conflict between a separatist Aceh guerrilla and the Government of
Indonesia. The program was funded by the World Bank and implemented by Aceh’s devolved
government which resulted from the peace accord signed in Helsinki in 2005. The program
was implemented between 2006-2007 and targeted 1,724 villages, with a total investment of
USD 21.7 million.

Funds for different subdistricts were assigned based on the intensity of the conflict experienced,
and on the population size. It also considered previous results on how those communities had
spent resources from other projects, to measure their spending capacity. The villages had
several meetings together to decide on how to disburse the funds, including individual grants
to “conflict-affected villagers” or for public goods benefiting the community. Both individual
and collective grants needed to be presented as a project, specifying how the funds would
be used. A final meeting was held to report on how the funds were spent.

210      National Human Rights Council, Report of the National Human Rights Council to Parliament, Kingdom of Morocco (CNDH, 2015) 19; and The Rabat
report; The Concept and Challenges of Collective Reparations, (2009) ICTJ <https://www.ictj.org/publication/rabat-report-concept-and-challenges-collec-
tive-reparations> accessed 24 November 2019 at 26-28.
211      Julie Guillerot et al., ‘Morocco: Gender and the Transitional Justice Process’ ICTJ (2011) 33-35.
One of the difficulties in assessing the impact of the program was that by including both
individual and collective grants, most decisions for allocation went to individual grants. This
makes it difficult to assess the impact of the collective reparations programme. However, it is
an interesting example to explore in comparison with the Peruvian and Moroccan experience.
Both in Peru and Aceh, there were high levels of community participation 212 However, unlike
the Moroccan program, it encouraged the villages to design the projects in collaboration
rather than making them compete with each other. 65

4. Colombia: Collective Reparations For Armed Conflict

In Colombia, a comprehensive reparations policy was defined in 2011 to address the
consequences of political violence and an internal armed conflict that has affected the
country since the early 1960’s.213 The policy includes a vast humanitarian assistance program,
land restitution, individual reparations and collective reparations.214 Reparations programs
cover victims of the conflict since 1985 without a time limit, as the conflict persists.215 This policy
was defined by law before the peace agreements with the FARC guerilla and was mostly
confirmed or ratified in the agreement.216

The collective reparations program is based on a broad definition of collectivities and

measures. It includes collectively affected communities based on territory and with strong
common historical or cultural links. It also includes larger organizations, like the national
organization of indigenous peoples the labor movement and a political party whose members
were massively targeted and persecuted and a university affected by the paramilitary
intervention.217 This diversity is an interesting feature, but it has also proved difficult in terms of
defining and implementing reparations for these groups.

The law and the decrees that regulate this program do not define a particular set of
measures or allocate a particular fund for each community or group. Targeted groups define
the particular collective reparations plan, through a complex process of participation and
consultation. They do this with the assistance of the Victims’ Unit which is the government
entity responsible for implementing the program. These plans are to be submitted to local
councils which oversee all public services located in the area, including the respective units
of the police and armed forces, as well as representatives of victims. From 2013 to mid-2018,
640 communities or groups have been identified, some based on their request for inclusion
and others identified by the Victims’ Unit. 128 collective reparations plans defined by the
affected communities have been approved.218 The remaining communities are engaged in
different parts of the consultation process, including innovative dynamics for community
reconciliation and wellbeing, but no other tangible results in terms of material conditions.

212      World Bank, Community-Based Reintegration in Aceh: Assessing the Impacts of BRA-KDP (2009) <http://documents.worldbank.org/curated/
en/867071468040487535/pdf/537140NWP0ISDP10Box345623B01PUBLIC1.pdf> accessed on 31 January 2020.
213      ‘Reparations in Colombia: Where To? Mapping the Colombian Landscape for Reparations for Victims of the Internal Armed Conflict’ (Reparations,
Responsibility and Victimhood in Transitional Societies, 2019) 31-38 <https://reparations.qub.ac.uk/assets/uploads/ColombiaReparationsPolicyReportFORAP-
PROVAL-SP-HR-NoCrops.pdf Exec. Summary> accessed 30 December 2019.
214      ibid.
215      ibid.
216      ibid 9.
217      ibid 45-46.
218      Gobierno de Colombia, Política de atención y reparación a víctimas (2018) 239-240.
 Implementation of the approved plans has proven difficult, as they include broad ranges
of measures in terms of infrastructure, public services, community development projects,
and memorialization initiatives. At times, the municipalities lack the resources to respond to
reparations demands, as the collective reparations plans are not integrated into their local
development plans. Furthermore, their budgets are not increased by the central government
to cover those additional expenses. Frequently, several of the measures defined by the
66 plan respond to historical conditions of marginalization and poor quality of public services.
Resources for this do not entirely come from local government institutions but also involve
resources from national ministries. This results in lengthy processes for defining which entity is
responsible to implement the different measures. Even the initial pilot projects started in 2008,
which were the foundation for a participatory consultation process, have not been finalized,
giving a sense of unfulfilled promises.

Implementation of reparations for national groups, like the union movement, the national
organization of indigenous peoples, or the journalists, has also proven difficult. Most of the
demands of these groups involve political negotiations with the Government or Congress. This
renders the Victims’ Unit an interlocutor of little relevance. Progress in defining their respective
reparations plans have varied, depending on the types of demands, and implementation has
also depended on the political environment and the ability of these groups to mobilize and
negotiate.

This policy, even if defined broadly, has not been able to address another collective dimension
of the Colombian armed conflict and the conditions that led to it and facilitated it. This was the
high degree of historical marginalization and pockets of poverty and exclusion that are larger
than communities affected by conflict. These pockets of exclusion involve entire districts or
municipalities, most of them rural, and several of which are inhabited by indigenous groups
or ethnic minorities. In these areas, discontent led to the formation of guerrilla groups, self-
defense groups. It also led to drug cultivation and production. These were a response to the
absence of a State which could not provide services. Often State policy was focused on
combating guerrilla groups and its presence in those areas was only military.

In 2016, this situation led to the incorporation of an additional policy that has elements of
collective reparations known as Territorially Focused Developed Plans.219 This policy is being
implemented in 170 municipalities, starting with consultation processes at the sub-regional
level where several of the selected municipalities are located; continuing with consultations
at the Municipal levels and finalizing with consultations at the village level. It is too early to
evaluate the implementation of this policy and its ability to effectively address the forms of
discrimination and exclusion that it is trying to overcome.

219      Escobar Arango, ‘Territorially Focused Development Plans Can Transform the Countryside and Strengthen Peace in Colombia’ (2017) LSE Latin America
and Caribbean Blog <https://blogs.lse.ac.uk/latamcaribbean/2017/10/10/> accessed 30 January 2020.
III. The Case For Collective Reparations In Sri
Lanka

1. Understanding The Context

A policy for collective reparations in Sri Lanka must first consider the wide-ranging impact of 67
violations on different communities. For example, during the ethnic conflict, the expulsion of
Muslims from the North not only affected the collective Muslim community that was expelled
but also the communities that resided in places like Puttalam where they were resettled. The
Office must be proactive in drawing these links and not simply rely on applications. It must
also ensure the meaningful participation of victims throughout the entire process. Victims
and affected communities must be allowed to be part of the process from beginning to end.
It has been the case in Sri Lanka that victims are often called in for consultations.220 However,
their concerns and inputs are rarely reflected in policy.

One of the key recommendations that surfaced from the CTF report in regards to collective
reparations was the revision and restructuring of State programs and benefits that already
existed. For example, the CTF Report notes “Some groups say they have been actively denied
access to Government’s welfare schemes such as Samurdhi and have asked that this be
addressed. These include estate employees, those affected by the Prevention of Terrorism
Act (PTA), and former child soldiers recruited by paramilitary groups.”221 State mechanisms
such as Samurdhi cater to all communities and not just those affected by conflict or political
violence. However, the lack of access to state benefits to certain communities and groups
that have been affected by conflicts, such as child soldiers and those affected by the PTA
Act, could be addressed through a collective reparations policy. A Sri Lankan policy must
also assist in enhancing already existing mechanisms that victims would benefit from having
access to.

REPPIA assisted the rehabilitation and reconstruction of places of worship to r e p a i r /

reconstruct damaged places of worship due to “terrorist activities/ethnic violence etc”.
that occurred since July 1983. This was implemented through a circular created in 1996. The
amount payable for a fully damaged place of worship was 1,000,000 and a partly damaged
place of worship was 500,000.222 Rebuilding places of worship is a meaningful way of providing
collective reparations. However, this is an interesting example to consider the question of who
speaks for the community. The Office must be careful to integrate the input of all community
members. Some individuals, because of their social standing or leadership role, may attempt
to speak on behalf of the community. This can especially overshadow the voices of those who
are more vulnerable such as children, the differently-abled and victims of sexual violence. All
community members must be involved adequately and as equally as possible.

220      Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (2011)<http://slembassyusa.org/downloads/LLRC-REPORT.pdf> accessed 20
January 2020; Report on the Second Mandate of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances (Paranag-
ama Commission Report) <https://www.colombotelegraph.com/index.php/maxwell-paranagama-commission-report-full-text/> accessed 20 January
2020; Report of The Commission of Inquiry Appointed to Investigate and Inquire into Alleged Serious Violations of Human Rights Since First August 2005
(Udalagama Report) <https://847da763-17e4-489f-b78a-b09954fec199.filesusr.com/ugd/bd81c0_bc8695addf4e4a6688abb3e30a5a36e5.pdf> accessed 20
January 2020
221      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 76.
222      ‘Current Circular’ (Reppia.gov.lk, 2020) <http://www.reppia.gov.lk/web/index.php?option=com_contentandview=articleandid=24andItemid=139and-
lang=en> accessed 22 February 2020.
 2. Economic Considerations
Collective reparations should also ensure that impacted communities can meaningfully
participate in economic rebuilding efforts. In Sri Lanka, the economic case for collective
reparations is evident in the failure of ad hoc individual level entrepreneurship/livelihood
68 programs and the indebtedness generated by individual microenterprise and housing loan
programs. Several studies have noted that individual livelihood programs have suffered
from short-term support, lack of adequate capital, access to market linkages and market
saturation.223,224 Others have noted the ‘impossible expectation’ of individual entrepreneurship
and self-employment from women who are juggling war recovery and rebuilding from the
multiple traumas of war.225 Collective projects like cooperative based enterprises will be in
a better position to use the advantages of scale, including adequate capital and access to
market linkages and provide sustained and comprehensive support to survivors rebuilding
economic lives.

Similarly, community-based housing projects can overcome some of the indebtedness

issues of individual loan-based housing projects that have been the sole focus so far. This
has predominantly been the case for vulnerable groups such as women-headed households
and disabled survivors, who have been unable to generate the labor and resources required
to make proper use of the housing loans. Community-based housing projects can provide
access to resources and guidance that is currently missing.226

The long-term vulnerability to deprivations of basic living standards in the south revealed
in the multidimensional poverty statistics for Moneragala,227 also indicates the need for
community-based projects that can identify and target specific needs in services like
sanitation, electricity, nutrition and education.

The example of Peru’s community reparations initiative can be a useful model for
community-based initiatives. Under Peru’s reparations policy, the government identified
1600 rural communities as having been disproportionately affected by violence. Each
community received a fixed amount to invest in the reconstruction of economic, productive
and commercial infrastructure or access to economic opportunities or the recovery and
expansion of basic services in education, health, sanitation, rural electrification, recovery of
community heritage, and other projects in which the collective has a stake.228

Such a collective reparation project would require a special dedicated fund to be established.
This, however, should be feasible. The Palmyra Fund for development in the North and East

223      Vasuki Jeyasankar and Savini Ganhewa, ‘Making Ends Meet: Women’s Livelihood in Post-War Sri Lanka’ (ICES 2018) <https://www.google.com/search?-
client=firefox-b-dandq=http%3A%2F%2Fices.lk%2Fwp-content%2Fuploads%2F2018%2F03%2FMaking-Ends-Meet-Women%25E2%2580%2599s-Liveli-
hoods-in-Post-War-Sri-Lanka.pdf> accessed 30 December 2019.
224      Mapping of Socio-Economic Support Services to Female-Headed Households in the Northern Province of Sri Lanka (United Nations, Sri Lanka 2015)
<https://srilanka.unfpa.org/sites/default/files/pub-pdf/FemaleHeadedHouseholds.pdf>accessed 30 December 2019.
225      Chulani Kodikara, ‘Doing This and That: Self-employment and economic survival of women heads of households in Mullaitivu’ (ICES 2018) < http://
ices.lk/wp-content/uploads/2018/03/Doing-This-and-That-Self-employment-and-Economic-Survival-of-Women-Heads-of-Households-in-Mullaitivu.pdf>
accessed 30 December 2019.
226      Mapping of Socio-Economic Support Services to Female-Headed Households in the Northern Province of Sri Lanka (United Nations, Sri Lanka 2015)
<https://srilanka.unfpa.org/sites/default/files/pub-pdf/FemaleHeadedHouseholds.pdf>accessed 30 December 2019.
227      See Chapter 2 pg. 27
228      Ruben Carranza, ‘Relief, Reparations and the Root Causes of Conflict in Nepal’ ICTJ (2012).
was established in the 2019 budget with an expected investment of Rs. 5 billion over 2 years.
However, there are few details on how specifically the funds will be used.229 There is an
opportunity to specifically target these funds for collective reparations through community-
initiated projects in the North and East and expand it to other conflict impacted regions in the
South as well.

69
The Palymra fund has a seed capital allocation of half the amount needed, and the remaining
is sought from philanthropists - particularly in the diaspora. However, as the ICTJ has noted
“government financing for reparations is most effective when it is an integral part of a nation’s
budget rather than a special fund relying on donations”.230 Since there has been no dedicated
fund set up for community administered projects in conflict-affected areas, fully funding this
initiative in the budget should be prioritized. Expanding the framework of the funds to include
conflict-affected communities in the South and a dedicated focus on projects related to
basic services in the multidimensional poverty framework such as sanitation, electrification
and health will also align such funding with the Sustainable Development Goal of poverty
eradication in all regions that the government has committed to. Given this alignment, a
limited-term commitment either from the revenues of the existing national building tax or an
additional small increase in the same with a finite horizon till the multidimensional deprivations
are addressed should be feasible.

ECONOMIC CONSIDERATIONS
OF INDIVIDUAL & COLLECTIVE REPARATIONS

High number of female-headed Low employment

households in affected regions opportunities in most
and communities affected regions

Over borrowing and dept cycles Multiple and long periods of

when primary bread winner is displacement led to
deceased, missing or disabled interrupted education

229     Mass Movement for Social Justice, ‘Reconciliation through Economic Development: Budget 2019’s hollow Prescription for North and East (Daily FT 27
March 2019) <http://www.ft.lk/opinion/-Reconciliation-through-Economic-Development---Budget-2019-s-hollow-prescription-for-north-and-east/14-675364>
accessed 30 December 2019.
230      Lisa Magarrell, ‘Reparations in Theory and Practice’ Reparative Justice Series ICTJ (2007) <https://www.ictj.org/sites/default/files/ICTJ-Global-Repara-
tions-Practice-2007-English.pdf> accessed 28 December 2019,
 PROBLEM?
Post-war economic rebuilding efforts in the North and East have
comprised of large-scale capital-intensive infrastructure projects to
address the economic concerns of affected communities.
70

WHAT CAN BE DONE?

Assessing the economic Providing special employment

impact of various quotas for victims in government
reparations measures or private enterprises

Using special funds like the Providing community-based

Palmyra Fund to initiate loans for housing projects
projects and invest in instead of individual loans.
improving economic standards

IV. Designing A Policy On Collective Reparations

The comparative experiences mentioned and the broad definition by the Act provide some
guidance on possible factors to consider in making recommendations for a collective
reparations policy. These factors should be analyzed by the Office for reparations in
consultation with victim groups and civil society.

1. Defining The Types Of Collectivities

As comparative experiences show, there can be many types of collectivities. They can be
geographically defined, ranging from small communities and villages to larger areas like
entire municipalities or even regions. They can also consist of groups that are not associated
with a specific territory, though in some cases it has proven more difficult to define and
implement collective reparations policies for such groups. Some policies have included both
smaller communities and larger regions. This depends on the situation and needs which the
policy is trying to address. If the main problems are related to historical marginalization or
exclusion, a broader regional approach may be appropriate. If what the policy is trying to
address is the consequences of massive violence exercised over certain communities, a
more targeted approach may be needed.

71
Conditions of displacement may also need to be considered, as in many cases, entire
communities or most of their members left precisely as a result of the violence, and the current
inhabitants of a region or village may not be those affected. Collective reparations should try
to address collective obstacles suffered by communities trying to return, or in some cases
to resettle. This poses delicate questions, as the policy should not impose incentives to either
return or resettle, but provide choices for both, allowing affected communities to decide.

Section 27 of the Act does not include a concrete definition of collectivities or communities.
However, the reference to “communities or groups of aggrieved persons” is broad enough to
cover any of the choices the comparative experiences use.

2. Selecting Collectivities
Several polices have defined a set of criteria for selecting communities, based on factors
that are individually assessed and ranked. The most specific example of this is Peru, partly
because of its focus on small communities, and the large scale of the devastation which left
several thousand communities seriously affected. The methodology used in Aceh (Indonesia),
between 2006 and 2007 through its Community-Based Assistance for Reintegration of
Conflict Victims program (BRA-KDP) is also interesting, as it also covered a large number
of communities. It was able to rank different areas based on the intensity of the conflict in
that area.231 Further to this it also determined each area’s consequent spending capacity.
Assessing these allowed for higher guarantees of implementation.232

The policies presented earlier in the chapter show diverse approaches. Peru had one
investment project per community with a cost ceiling which allowed it to cover many
communities without much impact. Morocco created a fund for which organizations from the
affected regions applied and competed for. However, the community devised the projects
they would implement. Aceh gave the option of individual measures along with collective
measures and the communities chose individual measures in most cases. Colombia
conducted broad consultation without budgetary limits leading to comprehensive plans but
difficulty in approving and implementation.

In Sri Lanka, the definitions of the measures in Section 27 of the Act give little guidance. The
terms used are very broad, giving room for different options, but point to a combination
of measures for the community to define, in what could be understood as community
reparations plans.

231      World Bank, Community‐Based Reintegration in Aceh: Assessing the Impacts of BRA‐KDP (2009) <http://documents.worldbank.org/curated/
en/867071468040487535/pdf/537140NWP0ISDP10Box345623B01PUBLIC1.pdf> accessed on 31 January 2020.
232      ibid.
 Depending on the definition of collectivities these plans should include not just community
plans, but sub-regional ones, as the approach followed by Aceh and by the Development Plans
with Territorial Approach (PDET) in Colombia. This could include a combination of sub-regional
collective reparations plan, where specific communities of that sub-region are also selected
and define additional measures. This approach could address difficulties experienced in both
the Peruvian and the Colombian programs, where the projects defined by the communities
72 were disconnected from broader regional development plans. That could be crucial for any
project to have an impact—particularly infrastructure projects, and for guaranteeing the
operation of projects that involve services or require maintenance.

3. Methodology
Section 27’s direct reference to consultation with the affected communities is consistent with
the lessons from different experiences. All of them include a high degree of participation and
consultation. These consultations must consist of a series of activities to earn trust and to
develop a participatory process. Regular lessons about consultations, in terms of gender
participation, language and lessons for guaranteeing ample participation are applicable
here. On occasions, separate consultations just for women have been the only way to define a
set of projects that reflect their interests. In Aceh (Indonesia) the most effective consultations
with women occurred at the river, where women usually met to talk while washing clothes.

Lessons from Colombia could offer important suggestions for methodology. One crucial
aspect is that this cannot be a rushed process, but that consultation takes time and requires
several meetings where consensus is built. However, another lesson is to include the local
governments, technicians and national services to make sure that the plan is feasible and
could be implemented. This may require feedback from technical experts advising how
to make something work, but in a way that is responsive to the needs expressed by the
community, or how to connect a set of measures demanded by a community with broader
policies.

The main challenge for doing this resides in the frequent attitude of bureaucrats who are
reluctant to directly engage with communities, especially with the poor, and are dismissive
or incapable of listening and responding to their needs. Civil servants participating in these
consultations need to be coached for developing the skills needed to listen and serve those
communities. The role of the Office is essential, as a sort of mediator between public services
and the community, helping them interact in a way that could serve the interests of the
community while reaching the definition of a plan that is feasible.

The plans need to have a clear indication of related costs, indicate which implementing agency
will be responsible and indicate the term from start to finish. The plans should be understood
as a contract between the community and the State of Sri Lanka, where the former commits
to certain obligations. As an obligation, it has to have a clear definition of which entity is the
debtor and has the obligation, what is the precise object of the obligations, and which are the
terms to be complied with. Implementation should be based on the plan, according to the
principles mentioned. At this stage, the role of the Office may be that of a facilitator, helping
solve obstacles or differences that could arise during implementation. It could assist in
negotiating with the Government assigning additional funds when certain measures ended
up having unexpected costs; mediating conflicts; and monitoring implementation.
 4. Submission Of The Policy To Cabinet And Assessment Of
The Approved Policy
The factors and considerations described above could be used by the Office to define a Policy
on Collective Reparations that is suitable to the needs and available resources of Sri Lanka. In
drafting the policy, it is recommended that the Office consults with victim groups, civil society
organizations, faith communities, policy experts and other stakeholders, so their proposal has 73
support from a wide variety of sectors in society. With that support, the Office should present
the Policy to Cabinet for its approval, encouraging public debate, not a closed-door one, to
increase the likelihood of approval.

If the Policy approved by Cabinet differs substantially with the proposal presented by the Office,
the Office should evaluate if what was approved still complies with reasonable standards
of impartiality. This should include assessing impartiality; non-discrimination; guarantees
against political manipulation of projects; conditions for effective participation, consultation
and decision making by affected communities; ability to respond to different gender issues
and for women’s participation and decision making; guarantees for effective implementation;
and conditions for the operation of services and the maintenance of infrastructure.

As in the case of the individual reparations policy, the policy approved by Cabinet should also
have guarantees for continuation and long-term implementation. This means finding legal
mechanisms for diminishing the possibilities of being affected by political changes, as well as
for guaranteeing the availability of the resources needed for implementation, and operation
and maintenance of the projects.

INDIVIDUAL VS COLLECTIVE
REPARATION REPARATION
Advantages Advantages
Essential for serious violations such Can benefit a wider group of
as sexual violence, enforced victim
disappearance, killings, torture Could be directed towards
Easier to manage and put into rebuilding the economy
immediate practice

Disadvantages Disadvantages
Necessarily limited in time Might not be adequate in
and coverage acknowledging serious violations
Resource heavy inflicted on individuals
74

Chapter Four

Provision of Support
Registering and implementing reparations for victims of human rights violations and violations
of international humanitarian law is a complex task. It involves obtaining information to
determine the status of victims and organizing consultations for defining a policy, as well as
considering and responding to the multiple needs of victims. These responses often cannot
wait for the policy to be defined, as some of those needs are urgent. The Act recognizes this
by including in the Office powers and functions:
“to provide support, including administrative support, travel reimbursements and
psychosocial support, where necessary, for the aggrieved persons who appear before
the Office for Reparations;”233
75

In other countries, institutions that have performed similar activities have also included
forms of immediate support, assistance, or interim reparations. Those experiences can offer
important lessons that could be adapted to the particular circumstances and mandate
of the Office. To understand these experiences, it is important to first consider the nature
of ‘support’ and how it is distinct from ‘reparations’. This distinction also helps define how
support can be provided. Following a discussion on this matter, this chapter describes several
experiences on how such support was implemented. Those experiences are the bases for the
recommendations included in the conclusion.

I. Nature Of Assistance And Welfare Services

An important consideration when defining support and assistance before a reparations
policy is devised is the difference in nature between these two policies and how they
complement each other. The provision of reparations responds to an obligation of a person
or entity responsible for causing harm, to those who had suffered that harm. The source of
the obligation derives from the existence of a harmful act that affected the victim, which is
the result of an act or omission by the responsible person. The notion of responsibility is at the
core of the obligation to provide reparations and is what distinguishes that obligation to the
duty to provide humanitarian assistance or relief. As such, victims are entitled to reparations,
as the natural correlative to this obligation.234 In the case of support, relief, social assistance,
or welfare services, the criteria for eligibility are related to a person’s vulnerability or need,
even if they also happen to be victims of a violation. Similarly, the assistance provided by
interim reparations does not necessarily respond to the harm caused by the violation, but to
the extreme need of certain victims who cannot wait for the definition and implementation
of reparations.

The distinction between reparations and needs-based assistance or support results in three
issues on providing support: 1) what is needed to identify recipients of assistance; 2) how
to determine the form and quantum of the assistance, and 3) the difference between the
universe of victims entitled to reparations and those who should receive urgent assistance.

233      Office for Reparations Act, No. 34 of 2018, s. 11 (1).

234      Kelli Muddell and Sibley Hawkins, ‘Gender and Transitional Justice’ ICTJ (2018) 11-12.
 II. Identifying Victims For Receiving Support Or
Assistance
Given the difference between needs-based assistance and reparations explained above, an
institution registering victims and defining a reparations policy may assist without having to
previously establish the existence of the violation or the status of the victim. The urgency to
respond to a compelling need is more important than the certainty or likelihood of the person
being a victim of a violation. The imperative to address an extreme need is what must be
76
prioritized, even at the risk of making a mistake and providing assistance to someone who is
not a victim. This explains why support measures can and should be implemented before a
full registration or validation process is finalized, and benefits are provided promptly without
extensive assessments. Making mistakes in a few cases should be considered acceptable if
that allows expedient support to be provided to a large number of people in serious need.235

III. Determining The Form And Quantum Of

Assistance
Unlike reparations, the goal of assistance is not to repair harm but to provide support to victims
who are in extreme and urgent need. Thus, the form and quantity of what is given are not
related to the violation, but the need, and it should be sufficient to help overcome the situation
of extreme vulnerability. This can take the form of interim financial aid and immediate health
care services, such as surgery, for those suffering from serious medical conditions. Receiving
these measures, though, should not be counted as reparations, nor should they postpone the
State’s obligation for providing prompt and adequate reparations.236

IV. Risk Of Confusing Assistance For Those In

Need And Reparations
The nature of assistance is limited to victims in situations of need. The provision of assistance
or services to this limited category of victims may create a problem with the larger universe
of victims, who may claim that they also deserve assistance and welfare. This poses a serious
political and legitimacy-related risk to the entity making those decisions, particularly since
the provision of assistance will be immediate, while the definition and implementation of
reparations may take longer. The experiences and ideas presented below offer strategies for
minimizing those risks.

V. Types Of Assistance And Institutional

Frameworks For Their Implementation
An entity responsible for defining a reparations policy and registering victims may provide
a variety of assistance and welfare. These services can be provided in different forms, and
they can complement each other to better address the needs of victims. These types of

235      ‘Guidance Note Of The Secretary General: Reparations For Conflict‐Related Sexual Violence’ (OHCHR 2014) 12
236      ibid 9.
assistance can be classified by how they are implemented: 1) general referral to existing
assistance or welfare programs; 2) direct or indirect provision of certain specialized care to
victims in extreme vulnerability, and 3) interim reparations or assistance provided in advance
of more comprehensive forms of reparations.

VI. General Referral 77

This is a common practice of truth-seeking or reparations institutions working with victims.
The goal is simply to help victims to connect with existing social services. For that purpose,
some commissions or entities working with victims simply integrate the ability to determine
referrals to existing social services, into the way they operate. This has frequently been done
by truth commissions and other bodies registering victims of large- scale human rights
violations, such as in Chile and Peru.237

An effective general referral requires adopting a social work strategy that includes (a)
inserting questions for assessing the degree of needs into the interview protocol of victims;
(b) training staff and having social workers as supervisors to make sure that the assessment
is done properly; (c) having previously identified services available including the location and
conditions for referral; (d) having contacted each of the services and defined agreements for
referral and follow up; and (e) the capacity to follow up on referrals made. It can also include
the provision of funds for travel costs, as the Act authorizes.

Making sure that referrals result in the provision of the desired forms of assistance and welfare
is essential, as the reputation and trustworthiness of the commission or entity working with
victims would be at stake. Effective referrals can have a positive impact on how the commission
or entity is perceived, as a body that cares for victims and is effective in delivering results.
This requires paying special attention to the identification of existing services in the different
locations, entering into agreements with those services, and maintaining a relationship with
the staff of those services to make sure victims referred to them are well treated. It can even
involve making a joint request to the Government for increasing the funding of those entities,
so they would have the resources to respond to the increased overload of cases that the
referrals of victims may involve.

Additionally, a special protocol for providing social assistance or welfare to victims could
be implemented, lowering certain requirements for victims to qualify for those services, or
providing additional services that could better respond to the special characteristics of victims.
These are issues that could be explored in consultation with victims, and by determining what
obstacles they currently encounter in accessing certain social services. If not done properly,
victims may encounter the same obstacles they usually face and will blame the Office for
creating false expectations about social services.

237      Ruben Carranza, Cristián Correa, and Elena Naughton, ‘Forms of Justice: A Guide to Designing Reparations Application Forms and Registration Pro-
cesses for Victims of Human Rights Violations’ ICTJ (2017) 13.
 VII. Provision Of Specialized Care
This is an additional form of assistance that the Office can use to immediately support victims.
This is a more formal task than mere referrals. In this type of service, victims are identified,
their urgent needs assessed in a similar way as in the previous system, but the provision of
specific services or goods is done or organized by the same body or office.

78 The Commission of Reception, Truth, and Reconciliation of Timor-Leste implemented forms

of urgent specialized care to certain victims, in addition to making recommendations for a
comprehensive reparation policy. This form of immediate support was implemented directly
by the Commission during its operations and funded through a community empowerment
project financed by the World Bank. The project was directed to provide support to survivors
in severe need deriving directly from a human rights violation, for example, those still suffering
from injuries who needed medical care, or widows in extreme condition of deprivation, and
in general “persons whose daily life continued to be stunted by the physical, psychological or
economic consequences of the human rights violations committed against them [..] suffered
physical disability or someone isolated within her or his community.”238

The Commission’s district teams identified the recipients of these measures among the victims
who participated in the statement taking and other truth-seeking efforts. People selected
received an emergency grant of USD 200, urgent medical or psychosocial care, equipment or
training for those disabled, and setting up survivor’ self-help groups. They also implemented
commemoration events, provision of tombstones or monuments to promote community
recognition of those who were subject to enforced disappearances, and contracts with local
organizations and churches or counseling groups to provide sustained support to survivors.
Some survivors participated in six healing workshops implemented by the Commission. A
total of 712 survivors received the emergency grant, and 417 received continuing support and
assistance by local NGOs and churches supported by the program, including medicines,
referral to district hospitals, basic counseling and other forms of support including home
visits. This was implemented expediently, while victims were interviewed for truth-seeking
purposes by the Commission, showing that it is possible for tracing or truth-seeking bodies to
incorporate the ability to detect and directly implement some forms of relief of urgent nature,
without having to rely on other bodies and be delayed. This was possible thanks to a trained,
motivated and sympathetic staff, and the availability of a reasonable amount of funds that
could be directed to immediate support.

The Commission also recommended a comprehensive reparations policy focused on

the most vulnerable victims, such as victims of torture, those suffering mental or physical
disabilities, victims of sexual violence, widows and single mothers, children, and communities
that suffered large scale gross human rights violations. However, these recommendations
have not been implemented even after 14 years since they were made, as the government
has chosen to focus its attention on providing pensions and supporting veterans of the armed
groups that fought the Indonesian Army.239

238     Chega! Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (2005) 35.
239      Lia Kent, Naomi Kinsella et al., ‘Chega! Ten Years On A Neglected National Resource- The Fate of the CAVR Final Report in Timor-Leste’ (2016) 9.
The interim reparations effort implemented in Sierra Leone with funding from the UN Peace
Building Fund registered 30,000 victims and provided them with a lump sum. In addition to
the interim payment, 235 victims of sexual violence were examined to determine if they
needed health care, either to address HIV/AIDS or sexually transmitted conditions. A small
number also required reconstructive surgery, which was provided. Also, some survivors of
other forms of violence required reconstructive surgery, which was also provided by Mercy
Ships International.240

79
The Equity and Reconciliation Commission of Morocco had a medical unit, composed of
physicians and psychologists, which provided services to more than 1,000 victims during its
existence. They also provided diagnosis and urgent treatment in anticipation and during
the hearing sessions in different provinces. The Commission also reached a partnership
agreement with the Ministry of Health for the provision of further rehabilitation services.241
These services were in addition to the assessment of the health condition of victims that the
Commission did, and which was the base for its recommendations on reparations.

The 2004 Law on Missing Persons of Bosnia and Herzegovina provides for financial support to
the relatives of those missing who were supported by the missing person and are in need.242
This form of support is not provided by the entity responsible for registering victims but is
claimed at the respective municipality, by relatives of victims who had made a tracing
request or a registration of a missing person to the Missing Persons Institute.243 The payment
of financial support ends when children finish education, spouses re-marry, or beneficiaries
find employment or access other more favorable forms of welfare assistance.244 Other forms
of assistance, including psychosocial support, are provided by municipal services or NGOs
but not as a result of a systematic and general policy that guarantees coverage to all victims
that need those services.

In the case of Peru, Law 30,470 of 2016 of Search for Persons Disappeared During the 1980-
2000 Period of Violence established a humanitarian approach for the search of disappeared
persons.245 In terms of assistance to victims, the National Plan for the Search of Disappeared
Persons of December 2016 includes the provision of psychosocial support during the process
of search, exhumation, identification, and return, and the provision of logistical support for
relatives to participate in the different stages of the search process, including their return,
reburial, and funeral ceremonies to be determined by the family members. This includes
providing coffins, building niches in coordination with local governments, transportation,
meals, and accommodation, for the relatives guaranteeing the respect and dignity of the
disappeared person and the family, and assisting the families in performing funerary rites
according to their tradition and preferences.246

240      Mohamad Suma and Cristián Correa, ‘Report and Proposals for the Implementation of Reparations in Sierra Leone’ ICTJ (2009)10.
241      Equity and Reconciliation Commission of Morocco, Final Report, vol. 3 (2005) 47.
242      Law on Missing Persons 2004 (Bosnia and Herzegovina), Article 11 (Right to Financial Support).
243      Law on Missing Persons 2004 (Bosnia and Herzegovina), Article 16 (Procedure for Regulating the Right to Financial Support).
244      Law on Missing Persons 2004 (Bosnia and Herzegovina), Article 14 (Termination of the Right to Financial Support).
245      Law No. 30470 on the Search for Missing Persons during the 1980-2000 Period of Violence, 2016. See further, ‘National implementation of IHL’ (ICRC)
<https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.xsp?documentId=23C5E44C4007B58FC1258009002E5B08andaction=openDocu-
mentandxp_countrySelected=PEandxp_topicSelected=GVAL-992BUFandfrom=state> accessed 20 January 2020.
246      Ministerial Resolution approving the National Plan on the Search for Persons Disappeared during the 1980 – 2000 period of violence (ICRC)<https://
ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.xsp?documentId=BE737620C23B2F8CC1258183003F34B2andaction=openDocumentand-
xp_countrySelected=PEandxp_topicSelected=GVAL-992BUFandfrom=state> accessed 22 January 2020.
 Psychosocial support to victims is provided through a strategy that involves the Ministry of
Health, other public services with experience in the area, and NGOs with experience, forming a
network of services available to victims. This has required working on improving the capacity
of the Ministry of Health, as well as on developing protocols for how the different services work
together, either through the direct provision of services to victims or by identifying situations
where specialized services are required and coordinating the intervention of those experts.
Most of the effort is geared to address the psychosocial needs of the relatives during the
process of search, identification, and return, but it also includes support to the professionals
80 working in these cases, as well as collective memory projects in affected communities.247

The examples show the importance of strong and clear leadership for these services to be
provided in the quantity and quality required, with clear co-ordination that could guarantee
that the approach is responsive and sensitive to the needs of victims. One aspect particularly
stressed by the Peruvian regulations is the need for services in their language and adapted
to the culture of victims.

VIII. Interim Reparations

On occasions, truth commissions, search bodies, or government bodies have implemented
interim reparations. They respond to a need to act promptly, avoiding what is perceived
as more complex and time- consuming aspects of defining a reparations policy. However,
often these interim reparations also take time and effort, as they require similar processes of
registering victims and delivering services and payments. Moreover, often interim reparations
are the only form of reparations ever implemented, as is the case of Sierra Leone, Timor-Leste,
Nepal, and so far, in Côte d’Ivoire.

The South African Truth and Reconciliation Commission established an urgent interim
reparations program. The criteria for selecting victims for urgent interim reparations was
based on their “urgent need of medical, emotional, educational, symbolic, social, legal or
administrative assistance or intervention; and [having] suffered hardship as a result of the
gross violation of his or her human rights”248. The Committee on Reparation and Rehabilitation
of the Truth and Reconciliation Commission made recommendations for payments, defined
based on a scale, to be paid by the President’s Fund established by the TRC Act. The payments
– with amounts ranging between USD 250 to USD 651 of the time, defined according to the
number of dependents of the victim, were supposed to address the urgent need, as no direct
provision of services was included. More than 14,000 victims received these urgent interim
reparations, out of 16,837 victims that the Commission identified, and were later entitled to
broader reparations recommended also by the Committee on Reparation and Rehabilitation.
These figures put in question the nature of the urgency and the specificity of the measures.
The Commission recognized as most victims as eligible for these interim payments and
services, and it took a long period to determine their eligibility for it.249 The effort can be hardly
understood as an urgent support program for those in extreme need. Rather, it functioned
more like a first installment on the reparation policy implemented directly by the Commission
instead of having the policy defined by the government or by law.

247      ibid.
248      Regulations 545 on Measures to Provide Urgent Interim Reparations to Victims, Ministry of Justice (3 April 1998), s. 3(1)(c) and (d).
249      Christopher Colvin, ‘Overview of the Reparations Program in South Africa’ in De Greiff (ed.), The Handbook of Reparations, (International Center for
Transitional Justice – Oxford University Press, New York, 2006).
The remaining experiences are similar. Interim reparations are not appropriate mechanisms
for responding to urgent needs or for those in extreme need but consist more of a simplified
reparations policy. Definition of beneficiaries are not based on assessing urgent needs, but on
establishing the status of the victim, and usually takes the same amount of time registration
of victims for the overall reparations policy takes. As such, it is not a recommended path for
complying with the support mandate of the Office.

The experiences described above offer avenues that could help the Office define how to 81
implement assistance and welfare services that respond adequately to its mandate and to
the general human rights obligations that govern its operation. One conclusion could be that
the interim reparations model is less adequate to the nature of the Office and the provisions
of section 11 (1) (j) of the Act. The experiences described in this report show that those programs
are stand-alone initiatives, that involve a full policy of registration and implementation.
Moreover, they do not respond to the nature of assistance or support but are shortcuts for
reparations policies. It would be more appropriate that victims coming in contact with the
Office receive the type of urgent care implemented by CAVR in Timor-Leste or by Mercy Corps
in Sierra Leone.
 Conclusion
The Act on the Office for Reparations gives the Office for Reparations significant functions
and powers towards designing and implementing a credible reparations process. However,
the provision for political oversight and approval by the Executive arm endangers the
independent work of the Office. This is even more significant given that the President and
Cabinet of Ministers have clearly stated their opposition to the transitional justice process. It is
therefore imperative that the Office for Reparations uses existing space to finalize its policies,
82
rules and guidelines in line with international standards and victims’ demands.

Given the limited resources which will likely be available to the Office for Reparations, its
policies must not only define those eligible for reparations, but also design a process to
prioritize cases. This process must base prioritization on needs, vulnerability, and severity of
harm and impact. In formulating policies, the Office will also need to decide on its approach
to individual and collective reparations, and which measures to include in such reparations.
This will require some comparative analysis between the benefits and challenges of individual
and collective reparations.

I. Individual vs Collective Reparations

Individual reparations are often essential to the most vulnerable victims and families, especially
those who have lost their primary breadwinner. For instance, women headed households
who have lost their primary income earner due to disappearance, death or disability need
financial support for basic survival needs. As discussed in the report, many of these women
must then face the additional challenges of having insufficient education and/or skills to be
fully independent. When they do find employment, they must then often relinquish their roles
as care givers, leaving dependents such as children and aging parents more vulnerable.
It is vital that such cases are covered by individual reparations policies, to maintain basic
sustenance and allow recovery and transition. Such support can also prevent long-term
cycle of poverty by combating debt and promoting advanced education for children. The
persistently high poverty rate and indebtedness in the conflict districts particularly support
the need for direct individual support.

Individual monetary reparations are also easier to manage and implement, since they are
in the form of direct financial transfers needing minimum administrative oversight. Such
reparations are also useful in reaching the most vulnerable populations, who may often be
marginalized in the design and implementation of collective reparations.

Individual reparations however, are necessarily limited in time and coverage. Particularly in
the case of widespread damage to communities, addressing all harm to all individual victims
will not be financially feasible. Individual reparations alone, are therefore not sufficient since
most vulnerable victims will need broader communal support and healing to rebuild their lives.
Lack of collective reparations can also cause resentment towards those who are singled out
for individual reparations. For example, in Nepal, the perception of widow-headed household
being the sole focus of all economic reparations programs led to backlash and withdrawal of
support from the community and extended family.250 Moreover, temporally limited individual
reparations without sustained rebuilding of marginalized communities will have limited
impact on reviving long term economic and civic life. In Peru. the truth and reconciliation
commission recognized that there was a significant relationship between poverty and social
exclusion and the possibility of becoming a victim of violence. Rebuilding at the community
level was therefore considered essential to break the cycle of poverty and exclusion and to
build trust and make communities feel part of the process of reconstruction.251

83

II. Individual reparations policy

When designing an individual reparations policy there are two factors that need to be
considered. Firstly, the manner in which compensation amounts will be decided and
administered, and secondly, the provision of reparations outside of financial compensation.
In designing how compensation will be designed and administered, there are a few reasons
to reject individual assessments in favour of standardized compensation policies. The nature
of violations that were suffered by victims cannot be adequately compensated based on
individual assessment, since it would place different monetary values on similar harms.
Furthermore, this model makes distinctions between victims of the same harm, which could
result in division and resentment within victim communities. Secondly, a practical reason for
avoiding individual assessments are that they are costly, require staff and additional controls
due to increased risk of corruption, and can result in significant delay.

The Office for Reparations must also include in its proposed policies types of non-monetary
individual reparations. Given the limitations in resources, monetary compensation can be
reserved for violations which are the most serious in impact. These could include, killings,
enforced disappearances, torture and sexual violence. However, other individual reparations
measures such as educational scholarships, health care and employment quotas may be
offered to victims of other harms and violations. The Consultation Task Force in Sri Lanka
highlighted that job quotas in certain sectors, such as the public service for victims could be
beneficial, as well as the cancellation of loans taken by those killed, missing or disappeared.252
Multiple and long periods of displacement have left families with interrupted education and
missing basic skills training. This has led to diminished employment prospects for survivors
in large scale economic projects that do not formally commit to training. In addition to this,
in the absence of formal reparations, ad-hoc livelihood projects have focused on short-
lived individual entrepreneurial activities such as poultry and cattle rearing, sewing, food
preparation and have not had any sustainable impact on victims

III. Collective Reparations Policy

Concurrently, the Office for Reparations must formulate and implement a collective
reparations policy in Sri Lanka. This must be done in consultation with affected communities,
to determine measures which are useful and sustainable. Collective reparations must be

250      Smita Ramnarain, ‘Universalized Categories, Dissonant Realities: Gendering Postconflict Reconstruction In Nepal’ (2014) 22 Gender, Place and Culture.

251      Ruben Carranza, ‘Relief, Reparations and the Root Causes of Conflict in Nepal’ ICTJ (2012).
252      Final Report of the Consultation Task Force on Reconciliation Mechanisms: Vol. I (November 2016) 63
 accompanied by clear acknowledgement that the recipient communities suffered specific
harms, and that the reparative measures are part of a remedy to those harms. Given that
these reparations benefit entire communities, the Office for Reparations must ensure that
the measures implemented - such as memorialization – do not promote or suppress the
experiences of any victim group, and that they promote understanding across communities.
To this end, the Office must ensure a strong outreach and communications programme.

84 Collective reparations that are economic in nature often tend to be mixed with large-scale
infrastructure projects. The Office for Reparations must ensure that development related
reparation measures are acknowledged as a remedy for harms suffered. It must also ensure
that such programmes specifically target affected communities.

IV. Interim measures

Sri Lanka’s political climate, waning support for Transitional Justice and a lack of public support
may make the process of devising a reparations policy a long drawn out one. Furthermore,
provisions to submit policies for approval by the cabinet and parliament could result in
further delays. In the midst of this it is important that the Office for Reparations issues interim
reparations to address immediate needs of victims who apply for reparations. For reasons
of administrative ease and maximum benefit, it is best that these measures constitute
standardized amounts of financial aid and general referrals. Where necessary, the Office
may choose to also independently employ experts to assess medical and psycho-social
problems.

V. Reparations In Sri Lanka And Other

Transitional Justice Mechanisms
Although Sri Lanka committed to set up four transitional justice mechanisms, only two
have been established, one of which is the Office for Reparations. The other established
mechanism is the Office on Missing Persons. The Act on the Office for Reparations mandates
the Office to receive recommendations from the Office on Missing Persons, which could cover
recommendations on eligible persons and necessary measures. This is commendable, since
victims who approach the latter institution may not necessarily also apply for reparations.
This relationship between the two Offices will also limit the bureaucracy which victims
must face. There is already evidence of this relationship, with the Office for Missing Persons
recommending an interim reparation of Rs. 6000 for relatives of the disappeared who have
obtained a certificate of absence.

Any future transitional justice mechanism on truth-seeking or accountability must also allow
those institutions to make direct recommendations to the Office for Reparations. Meanwhile,
given the comprehensive interpretation of reparations, which includes satisfaction and
guarantees of non-recurrence, the Office for Reparations must strongly advocate for
the establishment of other transitional justice institutions and measures. Without the
accompanying measures of truth-seeking, accountability and tracing investigations, the
work of the Office for Reparations will remain incomplete.