The government-appointed Consultation Task Force (CTF), comprising civil society members and academics, this week released their comprehensive report; a roadmap for the government to proceed with its plans for reconciliation and accountability.
The CTF appointed by Prime Minister Ranil Wickremesinghe in January 2016, held public consultations across the country to seek the view of the citizenry and those affected on future measures towards reconciliation.
The appointed Secretary of the CTF was Dr. Paikiasothy Saravanamuttu - a well-known civil society activist, who came under severe criticism during the previous government for his views on minority issues.
Saravanamuttu was often referred to as a ‘traitor’ and a ‘LTTE supporter’ by the previous government and its propaganda machinery.
The new government, however, has invited these civil society members, who were sidelined by the previous government, to contribute to its comprehensive initiatives for accountability and reconciliation.
The appointment of the CTF is one such measure and the move widely hailed by many international partners working with the government on this matter.
At the outset, the most important recommendation by the CTF is its proposal on setting ‘hybrid court’, with local and foreign judge participants to prosecute war crimes.
The committee recommends the participation of both international and national personnel on the four mechanism; ranging from the provision of advice and expertise to active membership including as judges and prosecutors, as spelt out in the UN Human Rights Council Resolution of October 2015, co-sponsored by the Government of Sri Lanka.
The report further elucidates: ‘The Court shall ensure that there will be a majority of national judges and at least one international judge on every bench.
Every effort should be made to ensure gender representation and that of all ethnic communities in respect of judges and prosecutors on both the Court and the Office of the Special Counsel, respectively.
The Special Court must be equipped in terms of procedure, staff and composition to address the specific needs of affected persons and witnesses, particularly women and children.
It is imperative that affected persons are not re-traumatised during the Court process and that the Court procedure is fair by both affected persons and the accused.
Key international standards pertaining to courts hearing war crimes cases should be included by explicit reference in the setting up the proposed hybrid Court, including the Bangalore Principles and ICJ’s Practitioners Guide on Judicial Accountability.
The treatment of evidence and the procedure of the Court should conform to international best practice and should be incorporated into domestic law.
The Special Court should be mandated to try international crimes, including war crimes and crimes against humanity and pay particular attention to crimes of sexual violence and crimes against children. Bearing in mind the mandate of the court in terms of transitional justice and addressing impunity, the CTF recommends that there be no temporal limitations to the jurisdiction of the Special Court.’
Similar recommendations were presented by the United Nations Human Rights Council (UNHRC), which adopted a resolution on Sri Lanka after the new government came to power, at the Parliamentary election, in 2017.
The CTF recommendation for a hybrid court bolsters arguments presented by various international parties that Sri Lanka should get the involvement of foreign judges to inquire into alleged war crimes and human rights abuses during the final phase of war.
From a political standpoint, however, this recommendation plunges the government into a difficult situation.
One major concern of President Maithripala Sirisena, at the moment, is the re-emergence of Sinhala Buddhist ultra-nationalist elements - fueled by pro-Rajapaksa groups propaganda campaigns at the grassroots level no doubt - in the country’s political sphere.
The government fears that the involvement of the foreign judges will affect its popularity at the village level – especially among members of the traditional Sinhala-Buddhist electorate – and give ammunition to the Rajapaksa camp.
That is why key members of the government have on many occasions continued to stress that foreign judges would not be involved in the accountability process.
What the government has proposed, instead, is a credible domestic process, with the technical assistance from international partners and experts who have vast experience in the areas of transitional justice and post-war accountability.
It is in this context that the CTF recommendation for a ‘hybrid court’ has shaken the resolve of some sections of the unity government.
This was evident at the last week’s cabinet briefing hosted by Cabinet Spokesman Rajitha Senaratne, Media Minister Gayantha Karunathilaka and his deputy Karunarathne Paranawithana.
Commenting on the matter, Senaratne reiterated no foreign judge would be involved in the judicial process relating war crimes allegations:
“Any institution or organization can suggest anything. But, the government’s clear policy is not to include any foreign judge in the judicial process,” he said.
“No one can say the members of these committees have some ‘special intelligence’. They are not globally accepted experts,” Senaratne added further, indicating his reluctance to be swayed by the key recommendations of the committee.
“Although the committee was appointed by the government, it is up to the government to make final decisions on such matters. The government has decided not to allow foreign judges to hear cases relating to war crimes allegations. Any foreign party can come and offer us technical assistance. That’s the only foreign involvement,” he added.
A day after Senaratne’s remarks, the United Nations Human Rights Commission (UNHRC) issued a brief statement on social media, stating that the UN Human Rights Commissioner’s viewpoint on a ‘hybrid’ judicial process in Sri Lanka remained unchanged.
‘Zeid had always urged the creation of a hybrid court in Sri Lanka,’ the statement said in brief of the events transpired.
Apart from the recommendations on a hybrid court, the report suggests other important measures:
‘The Government must ensure that the Police, security forces and intelligence agencies follow the Presidential Directives on Arrest and Detention reissued in June 2016,’ the report says.
‘The necessary legislative measures should be taken without delay to criminalise enforced disappearances in line with the definition of the crime under the International Convention for the Protection of All Persons from Enforced Disappearance.
International crimes such as war crimes and crimes against humanity must be criminalized and incorporated into Sri Lankan law immediately through legislation, without temporal prescriptions and in a manner that allows for the prosecution of these crimes committed in the past, in line with Article 13(6) of the Constitution and Article 13(2) of the International Covenant on Civil and Political Rights (ICCPR).
The Government must draw up a roadmap laying out the establishment and functioning of the mechanisms for transitional justice and reconciliation. The roadmap should address the existence of a multiplicity of State bodies, including ministries, with overlapping mandates for reconciliation. It should streamline the number of Government entities involved as well as their mandates, clarify their powers and functions, relationships to each other as well as to the mechanisms to be established for transitional justice and reconciliation.
The President and Prime Minister, engaging all stakeholders in an island-wide outreach programme must champion the roadmap on transitional justice and take overall responsibility for it. Continuing dialogue and consultation between Government and all stakeholders beyond the CTF consultations, in the preparation of legislation on mechanisms and thereafter, also remains of fundamental and critical importance in bridging the prevailing deficit of trust and confidence with the general public and the armed forces. Public outreach with a clear media strategy is important for its success.
To ensure the overall coherence of the mechanisms and reconciliation process, especially the prevailing confusion over the relationships between the respective mechanisms, and to counter public cynicism as to whether all four mechanisms would be established, the policy and operational frameworks for all the mechanisms should be prioritised at the outset, swiftly made public and operational.
The State must take the responsibility to ensure adequate funding of the mechanisms in a timely manner and as such, appropriate budgetary allocations must be made.
In order to avoid distortion, inappropriate and harmful terminology such as the Tamil term currently in use for the Certificates of Absence (CoA), due attention must be paid to the use of appropriate language in the naming and operation of the mechanisms and other measures for reconciliation and transitional justice. Experts in the field, who are knowledgeable in local language usage, should be consulted.
The State must ensure a more transparent and inclusive law making process, particularly with regard to public security and counter-terrorism legislation. It is imperative that Sri Lanka’s legal and policy framework conforms to the fundamental rights guaranteed in the Constitution and international human rights obligations.’
Other key recommendations of the report include:
- The Government taking steps to ensure demilitarisation and security sector reforms
- Psychosocial rehabilitation, re-education and necessary vocational training for ex-military personnel
- Comprehensive mapping process for civilians’ lands held by the military, with public involvement and a detailed plan for release of land.
- Increasing cadre in the Attorney General’s Department, the Police (including forensics) and Judicial Medical Officers (JMOs) to address existing gaps, delays and backlog of cases and complaints.
- Bifurcation of the Attorney General’s Department and reverting to a Director of Public Prosecutions as a separate and independent entity is recommended to avoid conflict of interest in prosecuting crimes alleged against State officers
- Effective public complaints and monitoring system of all structures involved in justice delivery.
- The practice of transferring officers found guilty of torture/custodial violence without further steps to ensure non-recurrence erodes public confidence in the system and perpetuates a culture of impunity.
- Mobile units to provide missing documents, and the establishment of district level mechanisms bringing together community leaders, district level officials and politicians to address complex inter and intra-ethnic land disputes as well as those between civilians and state agencies.
- Clear instructions by the Ministry of Defence and the Ministry of Law and Order to avoid incidents of harassment and intimidation.
- The establishment of a Special Victim and Witness Protection Unit that will include Police personnel and which will be overseen by a board that includes representation from the Human Rights Commission and the mechanisms.
- Reconstitution of the current Witness and Victim Protection Authority as an independent body.
- International technical involvement in the OMP including foreign personnel, specifically with regard to forensics.
- An amendment to the Registration of Deaths (Temporary Provisions) Act
What at the immediate outset is important to examine is whether the government is in any position to completely ignore the CTF recommendations – unpopular as some of them may be.
The biggest obstacle in the government’s way is the fact that that the CTF is state-appointed, meaning the government cannot fall back on political rhetoric to dismiss the recommendations by it’s own committee.
The government will be hard-pressed to implement the recommendations made by the CTF by the international community – previous instances of this took place when the government showed its reluctance to implement some of the proposals made by the Lessons Learned and Reconciliation Commission (LLRC) - a body appointed by former President Mahinda Rajapaksa. This reluctance boomeranged on the Sri Lankan government as UNHRC member nations went on to pass resolutions to exert pressure on Sri Lanka to implement the LLRC recommendations.
Therefore, at this juncture, the government will have to take the CTF report seriously and resorting to political rhetoric. If it does not intend to allow international judges to hear cases in Sri Lanka, it has to give a valid reason to international partners working with Sri Lanka on the matter.
However, it is also important to take into account is how the dynamics of global politics have changed since the UNHRC passed a resolution on Sri Lanka, in 2015.
The United Kingdom has chosen to distance itself from the European Union and the United States elected Republican Party candidate Donald Trump as their new President.
At this point, there are assumptions that the US and the UK – two powerful countries that strongly pushed for an accountability mechanism in Sri Lanka – will be less inclined to proceed with their previous demands, in the light of Brexit and Trump’s rise to power.
However, it is still too early to say whether they will make foreign policy U-turns to withdraw their previous claims at the UNHRC and other international platforms.
But, there is space for Sri Lanka to engage with them and renegotiate certain contentious issues – especially the level of involvement of foreign judges and prosecutors in the judicial process.
Although going forward will not be a cakewalk, one must not forget that the changing dynamics of the global politics offer the window of opportunity for Sri Lanka to strike a balance between the local political interests and the expectations of the international community.