Delaying Justice
Future of transitional justice in Sri Lanka may not be easy. Even President himself claimed few times, he would not betray any “war heroes”.
“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.”
―Archbishop Desmond Tutu (One of the pioneers of South African Transitional Justice Process.)
―Archbishop Desmond Tutu (One of the pioneers of South African Transitional Justice Process.)
( November 8, 2017, Colombo, Sri Lanka Guardian) Transitional justice(TJ) refers to the ways countries emerging from periods of conflict and repression address large scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. (ICTJ)
Transitional Justice is based on accountability and redress of mass human rights violations in the past. Ignoring and neglecting the bitter past is easy without addressing the grievances. But, if some society neglect the past grievances of people, specially of the people who belong to ethnic and religious minorities, it can pave the way for future massive instabilities of particular society and a civilized society will not be created. Most difficult questions which are related with politics, human rights and law is handled by TJ mechanisms. From giving priority to victims and their dignity, the mechanism itself is assuring the accountability of state towards human rights and international humanitarian law.
The aims of transitional justice will vary depending on the context but these features are constant: the recognition of the dignity of individuals; the redress and acknowledgment of violations; and the aim to prevent them happening again. (ICTJ)
There are four major pillars of the overall process: Truth, Prosecution, Reparations and Constitutional reforms. Truth should be revealed to understand the real nature of the scene. Generally, that procedure should be done via Truth Commissions even if it is not compulsory. In countries like South Africa, Truth Commission did a great role in revealing the truth. Revealing the truth may be painful. But after revealing the truth, it’s really easy to treat the past scars and it`s psychologically more comfortable to victims and also to the perpetrators rather than hiding the truth behind the scene. Prosecutions can be done via specially established local courts, so called hybrid courts or international criminal tribunals like Yugoslavia or Rwanda. Basically, there are three type of violations of international law which are considered as grave breaching of the principles of humanity: war crimes, genocides and crimes against humanity. Reparations are about sending a message of care to the victims who have suffered as a result of conflict. Reparations do not have to mean only cash payments. Reparations can be designed around what is affordable and effective. Some examples of reparations have been giving free education and healthcare to victims and the children of victims. It can be symbolic—monuments, days of remembrance. It can be by providing pensions, free medical or school. It can also be by giving victims opportunity to tell their stories to an official body. Institutional reform is an element of TJ which hopes to avoid the conflict from ever happening again. One institutional reform discussing currently is the possibility of creating some new legislative frameworks, division of power and etc. This is forward looking unlike truth seeking, accountability and reparations. All of them are past-oriented.
Why it is suitable for Sri Lanka?
In Sri Lanka, the topic, “Transitional Justice” has become famous because of Mr. Pablo de Grieff`s,(The special rapporteur of UN over promotion of truth, justice, reparations and guarantees of non-recurrences) recent visit to Sri Lanka .Many Sri Lankan newspapers reported that as really a terrible incident and public got terrified from reading those misguiding headlines. According to the Office of the High Commissioner’s (OHCHR) website, Mr. Pablo de Greiff’s visit was “to examine the progress made in redressing the legacies of massive past violations and abuses, including those that resulted from a conflict that spanned more than 25 years.” Many Sinhala newspapers who is aiming to awake the racism and emotions of people because of hidden political agenda`s reported that in a way, “War Crime Chief Comes to Sri Lanka’. But in contrast, the process of transitional justice is not a revenge and it`s really a positive step towards true reconciliation and long lasting sustainable peace. Within this context, it’s really worthy to take a look why the transitional justice mechanisms should be implemented in this country?
Basically, there should be a prevalence of few factors to implement a TJ mechanism in particular society.
The First factor should be an exit of old government or a happening of a decisive change in political or social background. Symbolized end of a military conflict in 2009 is a first opportunity and 2015 government change is the second opportunity.
The Second factor is a freedom from fear. Even after the war, there had been a prevalence of continuous fear in past government`s season because of white van abductions, lack of media freedom and etc. Relatively, under the current government there is a freedom to citizens and media rather than past.
Third factor is an establishment of rule of law. In the past governments era, there were many killings of detainees who were under police arrest and there were critical allegations over the unnecessary interference towards judiciary by executive and legislative bodies. The way appointing the judges and function of judicial system was questioned. But, currently situation is not such worst in current government and rule of law has been relatively strength since 2015 January with a beginning of new president`s tenure.
Final factor is an international pressure. Since the end of war, international community has been urging to implement the transitional justice mechanism until now. UN envoys, EU envoys and many international representatives have been continuously coming to the country and they have been in a close look towards the dynamic political situation in Sri Lanka. There is an enough international pressure to implement the TJ mechanism.
It`s obviously clear that in Sri Lanka, currently, there is a healthy political and social background to implement the justice mechanism.
History
Sri Lanka is a country which suffered from the brutal war for three decades from 1980`s to 2009 May. Some people explain this as an ethnic conflict, some others describe it as war again terrorism, while to the reaming others, it`s a civil war. No matter, from what name it is identified, war itself is a crime in any country. The application of transitional justice should be related with final phase of war in Sri Lanka.
LTTE pulled out of ceasefire in 2006 from closing the famous Mavil Aaru water resource. Government entered to war with the blessings of other countries and claimed the first mission as “Operation Watershed” to release the water for the basic agricultural and other consumption needs of the people. LTTE lost sympathy of Western world .32 countries have listed the LTTE as a terrorist organization. As of January 2009, these include: India (since 1992), US (since 1997), UK (since 2000), EU, Canada (since 2006) From getting the advantage Sri Lanka government tripled the size of military and continued the war and was able to marginalized LTTE to a very small landscape.
In 2009, at the end of the war, LTTE in its withdrawal corralled 300,000 people into “Safety Zones and used civilians as a human shield. In that moment, international community urged the government not to enter the LTTE controlled area further because of probability to having large number of civilian casualties. But unfortunately, the rulers at that time were not able to listen that and there were heavy civilian casualties, deaths. Number may differ according to various sources. Since that point, international community is urging the Sri Lankan government to go towards the transitional justice process from various UNSC resolutions and etc.
War Crimes
“They are not crimes that the army has to be collectively responsible for but they are isolated incidents committed by a few individuals. We need to reveal those incidents and punish those involved, if proper action is not taken within the country, the UN and the Security Council can do so according to international conventions.” ( Field Marshall Sarath Fonseka)
There have been serious allegations over war crimes of Sri Lanka army. According to field Marshall Sarath Fonseka, those allegations should be investigated and those who are responsible to those things should be punished according to prevailing law to clean the name of whole army.
And there were two documentaries which contributed lot to give a rise to war crime allegations against Sri Lankan army, named as No Fire Zone and Sri Lankan killing fields. There have been many criticisms over the genuineness of video footages which are depicting violations of International humanitarian law by government army soldiers. Despite heavy criticisms, there have been a wide recognition of video clips of these films as genuine by many international organizations and various influential diplomats.
Current Progression towards Transitional Justice
In a proposed mechanism, there were five components …
- Truth Commission (with Compassionate Council)
- Judicial Accountability Mechanism
- Office of Reparations
- Office of Missing Persons
- Constitutional Reforms/ New Constitution
From these steps, only the office of missing person has been established from a special gazette notification which was released on 15th of September 2017 amidst thousands of protests of racist extremists. But, the officers to OMP has not been appointed yet and hopefully, it will be done soon. And government is in a struggle to bring a new constitution while religious and racial extremists have been trying to blast the effort.
Office of reparations have not been established yet, but many good efforts in reparation process have been being implemented. Many lands which were in high security areas have been released to original owners. Infrastructure developments, new housing schemes should be appreciated. But, there is a question, whether if they have implemented enough effort for psychological development of war effected people. Meanwhile Truth Commission still prevails as a dream.
The Way forward…
Future of transitional justice in Sri Lanka may not be easy. Even President himself claimed few times, he would not betray any “war heroes”. So, prosecutions and its impartial nature in local system is a problematic. Establishing hybrid courts is really a costly and prior examples like in Cambodia proved that it’s not efficient, Constitutional reforms will be not easy due to heavy protests of extremists and racists. Elections are coming nearly; many elections are for to select members to the provincial councils where the majority of Sinhala people are living. Process like transitional justice is really a politically sensitive and we cannot expect that government will do significant contribution within these circumstances. But, what president Sirisena should remember that if a large majority of North and East province had not supported him in presidential elections, he would not have selected as a president of Sri Lanka. The reason why Tamil people supported him was there was a hope of “justice” within their mind. Indispensable responsibility of President Maithripla Sirisena is continuing the transitional justice process and assure the accountability of Sri Lanka government towards the victims of final phase of war without allowing any space to any type of revenge. And above the all what we should remember here in Sri Lankan process of transitional justice, the soldiers of Sri Lanka army fought with a militant group who are still considered as terrorists in many countries.
