Peace for the World

Peace for the World
First democratic leader of Justice the Godfather of the Sri Lankan Tamil Struggle: Honourable Samuel James Veluppillai Chelvanayakam

Wednesday, May 3, 2017

Implementing Transitional Justice measures- A reality check

Transitional Justice refers to the set of judicial and non-judicial measures that are implemented in countries which are coming out of a period of armed conflict, or state repression, and are in transition to a state of peace and good governance. Transitional justice is the process through which It is sought to redress the wrongs done, to make reparations and bring about reconciliation and non recurrence. This process includes institutional reform of those institutions which have been involved in or unable to prevent abuses, truth commissions, criminal prosecutions and reparation programs.   
It is eight long years after the war and the question arises as to how far these processes if any have been implemented in our country. Every time a Geneva session of the UNHRC takes place attention is focused on the UNHRC Resolutions 30/1 of 2015/ & 2017, and particularly on the accountability process. The Tamil political lobby concentrates on this aspect and expects the international community to be their fairy godmothers, the Government looks on the Geneva sessions as an occasion for crisis management with sweet talk, and once a period of deferment is obtained it goes into a state of lethargy till the next sessions of the Council. Neither side (appears to) see the need to engage with and communicate the larger picture to the citizens of the country and enlist their commitment towards doing away with a culture of impunity and reasserting our cultural values of compassion and right conduct. Thus far the only subject which has been hotly debated/contested is the question of whether or not foreign judges should sit alongside local judges on the domestic tribunals/special courts, which would be constituted. But there is no information available in the public domain on preparation or discussion on the setting up of these courts and how they will function, nor the other aspects of Transitional justice namely reparation, truth seeking and ensuring non recurrence.   
To commence on the Accountability process, we will need legislative measures and the incorporation into national law of the Geneva Conventions, as well as crimes under international law. For example use of civilian populations as a human shield or intentionally directing attacks on civilian objects including hospitals which are not per se offences under Sri Lankan law. In the case of offences such as extra judicial killings or enforced disappearances, the prosecutor would have to rely on ordinary penal offences such as murder or kidnapping, which do not reflect the gravity of such crimes. Moreover, when such crimes are not incorporated into national law, establishing command responsibility or joint criminal enterprise is not possible.   
An example from another small Asian country is of some relevance. In East Timor, (now known as Timor Leste) after the armed struggle for independence between the Timorese insurgents and the Indonesian Army, special criminal tribunals were established both in East Timor and Indonesia. As a consequence, the new Penal Code of East Timor includes a detailed section on war crimes and crimes against humanity. In 2009, the Timorese Parliament passed a resolution emphasizing the need to ensure reparations to victims. These are examples we can follow.   The matter of reparations has not been adequately dealt with in the Sri Lankan context. Those civilians whose properties have been damaged, destroyed, sequestered as well as those civilians who have been disabled or suffered injuries and there are a large number of them, have not received compensation/reparations. The family members of the disappeared would also have to receive compensation, at least in those cases where it was proved through evidence collected by the Disappearances Commission (also called the Paranagama Commission) and the LLRC which are already available which can be complimented where needed by the long awaited OMP when it is finally established, that the disappearances were caused by state and non state actors as a consequence of the conflict. So while the setting up of the Office of Missing Persons (yet to be made operational) is a step in the right direction it will also involve setting up alongside it an Office of Reparations. Reparations though primarily monetary must also take the form of guaranteeing of employment and livelihood opportunities, educational support mechanisms for children inclusive of transport for schooling. In lands which are returned where the homes have been destroyed and wells filled up, help to rebuild these abodes and facilities. These measures would make reparation more meaningful to the affected communities.   
The UNHRC Resolution 30/1 also refers to the need for institutional reform. These too have to be undertaken not just in the context of Transitional justice but also in the interests of good governance in the country. The International Commission of Jurists which conducted a workshop with lawyers in Colombo recently (November 2016) has submitted a synopsis of its findings which gave recommendations for legal reforms and identified the strategies for making such reforms. They have pinpointed the Attorney General’s Department, Police Department and the Judiciary.   
The findings stress the need to increase the independence and impartiality of the judiciary and provide support and resources for legal research and specialized courts for specialized areas, so that the judges sitting in those courts are specialized in those areas of the law. Also provision of better language and translation facilities in the courts so that suspects and defendants can have proceedings communicated to them in their own language. They also advocate strengthening the criminal justice system by allowing greater public oversight of legislative initiatives and greater inclusion of civil society in the drafting process. An example is the Witness Protection Act which would have improved with such oversight.   
These are all matters which the reconciliation bodies within the government and the Tamil Political lobby, could address themselves to, and help towards the implementation of the Transitional justice process, namely truth, justice, reparations and non recurrence. Politicians too can help to build positive public opinion keeping in mind the larger interests of good governance in the country which requires that the culture of impunity be eradicated.   
Transitional justice, if correctly implemented, would make citizens of the country of all communities have confidence in the criminal justice system and the impartiality of the governing authorities. Hence making the legal and institutional changes required, remedying the abuses and wrongs suffered and enforcing the rule of law will make for non-recurrence and peaceful resolution of the country’s issues without the need for external interference.