The report of the Working Group on Arbitrary Detention (hereinafter referred to as the ‘Working Group’) on its visit to Sri Lanka from the 4th to the 15th of December 2017 was presented at the 39th Session of the UN Human Rights Council (UNHRC) on the 12th of September 2018. Sri Lanka’s permanent representative to the UN also responded to the Working Group’s report at the time of its presentation. Of particular relevance to the Transitional Justice process in Sri Lanka are the findings, conclusions and recommendations made by the Working Group with respect to the Prevention of Terrorism Act (PTA). These recommendations are timely given that Sri Lanka in September gazetted its proposed new counterterrorism legislation (CTA).

The Working Group observes that the admissibility of confessions under the PTA regime is especially problematic as suspects face an uphill battle at the trial to prove that a confession has been obtained under duress. At the ‘voir dire’ inquiry (an inquiry to determine whether a confession has been made voluntarily or not) the prosecution is initially required to prove − on a balance of probabilities − that a confession has been obtained freely. If the prosecution is successful, the burden thereafter shifts to the suspect to prove – beyond reasonable doubt − that the confession had been extracted under duress. The Working Group notes that the excessively long period of pre-trial detention coupled with the lack of medical intervention during detention makes it nearly impossible for a suspect at a trial to prove that a confession was given under duress. Section 80 of the Counter Terrorism Bill addresses some of these concerns by only admitting confessions to a Magistrate under strict conditions including that the person was examined by a government forensic medical specialist immediately prior to or soon after the recording of confessions, and that the report is produced before the prosecution at the ‘voir dire’ inquiry. The burden of proving that the confession was voluntarily made was also shifted under the CTA and lie with the prosecuting authority. These changes must be welcomed and proposals to retain admissibility of confessions obtained during administrative detention must be resisted.

The CTA Bill includes other changes doing away with the more draconian provisions of the PTA including the reduction of detention without judicial supervision from 72 to 48 hours. It also provides for increased monitoring and supervision by the Human Rights Commission of Sri Lanka. The Magistrate is also mandated to play a more active role in supervising the conditions of detention and is required to visit the suspect in detention without prior notice and to direct a medical examination in case of suspicion or allegation of torture. However, there remains important concerns with the Bill.

In particular the Deputy Inspector General of Police is given unilateral power to issue Detention Orders and Magistrates shall give effect to such orders. A possibility of appeal is only provided before a Board of Review effectively removing detention orders from judicial review for an initial period of two weeks after which the Magistrate’ authorization is required for an extension of the detention order. Further, the Bill allows for the security forces and coastguards to arrest suspects without warrants. This effectively prevents access to a lawyer in the initial 24 hours after which the suspect must be handed over to the Police. This initial period may be much longer if the arrest is made aboard an aircraft/ vessel or outside Sri Lankan territory. This creates an increased risk of torture. While the CTA Bill seems to have addressed some of the concerns made by the Working Group, the concerns expressed above are of significance.

The Supreme Court this month delivered its determination on the constitutionality of the Office for Reparations Bill which was challenged last month. The Bill was challenged on a number of grounds. The petitioner argued that the appointment process of the Office’ members infringes on the President’s executive powers; that the scheme of the Bill erodes Parliament’s control over public finance; that the Bill deprives the people of their fundamental right to information; and finally that the power given to the Office to determine who ‘aggrieved persons’ are (for the purpose of awarding reparations) is an unconstitutional vesting of judicial power in the Office.

The Supreme Court ultimately found the fourth argument to be the most persuasive. ‘Aggrieved persons’ in terms of the Bill was defined as 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) in four different contexts (namely in the course of, consequent to, or in the connection with the conflict which took place in the Northern and Eastern Provinces or its aftermaths, in connection with political unrest of civil disturbances, in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or due to an enforced disappearance) . ‘Human Rights’ was defined in the Bill 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. The Supreme Court reasoned that the Office – in identifying an aggrieved person − would not only have to make a factual inquiry but also interpret and define the scope and ambit of (a) fundamental rights in the Constitution, (b) other human rights in treaties that have been incorporated into Sri Lankan law and (c) violations under international humanitarian law. The crux of the Supreme Court’s reasoning was that the parallel task of interpreting a complex body of law, in the present circumstances, amounts to a judicial function. In light of this, the Supreme Court recommends removing references to rights violations altogether and adopting the following definition of aggrieved persons: persons who have suffered damage as a result of loss of life or damage to their property or persons in the four contexts listed above.

However, delinking reparations from rights violations would be problematic from a transitional justice perspective. The 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 insist that any reparation program should be implemented on the basis that victims are owed reparations as rights holders whose rights have been violated. Awarding reparations on this premise also offers an avenue for the State to acknowledge that rights were violated in the first place. Dispensing with this acknowledgment takes away from one of the essential functions of reparations and is problematic as such. While an official acknowledgement of rights violations need not come from the Office of Reparations, it must nonetheless take place to ensure that reparations are meaningful.

The undersigned civil society activists and groups in Sri Lanka express our deep concern with aspects of the draft Bill titled ‘Office for Reparations’ (the Bill) gazetted on 25th June 2018. While the undersigned have several concerns with the process and content of the draft Bill, two issues regarding the powers and functions of the proposed Office stand out as the most pressing concerns. If these are not addressed forthwith, further engagement with the process will be moot. Therefore, we request amendments to the draft Bill to address these issues. We also urge any future action to be preceded by meaningful consultations on the content of the draft Bill allowing civil society and other stakeholders to make further submissions regarding other outstanding concerns.

Paramount concerns regarding the draft Bill are as follows:

1) The proposed Office has no decisional power with respect to policies and guidelines on reparations. In fact, policies and guidelines formulated by the proposed Office will only be adopted upon approval by the Cabinet of Ministers (clause 11(1)(g)). This unnecessary requirement of designating the Cabinet of Ministers as the key decision-maker on the adoption of reparations policies and guidelines is hugely problematic as the latter may delay or even refuse approving the recommended policies on reparations. It can also lead to cabinet approving policies and guidelines in an ad hoc manner, as done in the past, potentially undermining the coherence of the scheme proposed by the Office.

2)  Furthermore, according to the draft Bill, policies and guidelines approved by the Cabinet of Ministers and authorizing the disbursement of funds must be placed before Parliament for its approval (clause 22(4)). This procedural requirement is unnecessary and redundant given that the proposed Office has its own Fund for the carrying out of its mandate. Therefore, this adds another unnecessary layer of Parliamentary oversight and thereby further dilutes the Office’s input on reparations policies and guidelines.

These two clauses are cause for grave concern as they take away any decision-making power from the proposed Office regarding the adoption of reparations policies and guidelines. In essence, the inclusion of such problematic clauses reduces the proposed Office to a another bureaucratic layer in the adoption of policies, a far cry from what the proposed Office was meant to be in terms of defining and implementing reparations policies and programmes.

Reparations are a critical component to rebuild the lives of those whose rights have been violated. As such, if properly implemented, reparations will have a significant impact across Sri Lanka. However, for reparations to be transformative, they must be prompt, effective, and inclusive and the process must be transparent. Thus, an independent Office, free from political interference and vested with powers to define and implement reparations is essential. It is in this context that we call on the government to use this opportunity to fulfil their commitments made in 2015, taking note of the findings of the Consultations Task Force (CTF) and enact legislation establishing a mechanism that can fully address the needs of victims across Sri Lanka.

Three years ago, the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka. By doing so, the government committed to setting up a judicial mechanism, amongst other things, to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. This mechanism would include involvement of international experts. The government’s commitment has been met with outright resistance by some in Sri Lanka, and the government itself has backtracked on its promise to have international participation in a judicial mechanism. President Sirisena and prominent members of the government have indicated that there will be no international participation in prosecutions because international actors should not interfere with Sri Lanka’s internal matters. Government ministers have also expressed their rejection of international involvement on the basis that Sri Lanka’s judiciary and legal system have the capacity to investigate and prosecute international crimes on their own.

Many of the mainstream arguments in Sri Lanka seem to pit domestic and international justice against one another and conclude that the latter is unnecessary and intrusive. However, is this kind of thinking actually necessary? A number of compelling arguments, discussed below, suggest that it is disingenuous to consider the domestic and international as always being antithetical to one another. This is because, contrary to popular belief, the domestic and the international can often work in partnership to promote the common goal of accountability, whilst also strengthening local justice. Therefore, it may be time for all Sri Lankans and political leaders to introspect and reconsider the possibility of a middle ground between localised and international forms of accountability for international crimes.

In Sri Lanka it is undoubtedly important that local actors drive a justice mechanism to try perpetrators on all sides for international crimes committed during the war. This would ensure that victims’ voices are heard and that Sri Lankans themselves own the process. Having said that, it is important not to underestimate the benefits that international involvement can bring to the accountability mechanism proposed under Resolution 30/1.

In this regard, the author identifies four positive contributions that international involvement and influence can have on promoting meaningful accountability in Sri Lanka.

First, prosecuting international crimes requires experienced and well-trained personnel who understand the significant differences between international and domestic crimes. Investigators, prosecutors, lawyers and judges must be able to investigate, prosecute and hand down judgments concerning crimes that are complex and large scale in nature, and which require the examination of a vast amount of evidence. To illustrate, investigators must be capable of investigating murder not as murder but murder as a crime against humanity. Legal commentators have highlighted that there is minimal experience and expertise in international criminal law in Sri Lanka. Thus, while Sri Lanka has a strong legal culture and a vast body of criminal justice jurisprudence, international involvement in the proposed judicial mechanism is absolutely necessary to fill the existing gaps in institutional knowledge, experience and expertise.

It should be noted that the Sri Lanka Judges Institute already negotiates with foreign institutions to provide local judges appropriate international law expertise and periodically sends local judicial officers on foreign trainings. (See Amended Corporate Plan of the Sri Lanka Judges Institute 2013 – 2017). This is a striking example of how the international is already acting in partnership with the local to further justice in Sri Lanka. Nevertheless, given the serious lack of institutional knowledge and experience in international criminal law in Sri Lanka, international involvement must go beyond capacity building trainings and take the form of foreign participation in the proposed judicial mechanism. Only this would ensure that there is a systematic sharing and cross fertilization of knowledge/experience between the local and foreign. It is of interest to note that Sri Lankan judges too have served as foreign judges in the Fijian judicial system in order to provide expertise in specialist areas of the law where there was inadequate knowledge and experience in Fiji. Therefore, taking a similar approach in order to bridge Sri Lanka’s own capacity deficits in international criminal law is a sensible course of action.

Second, international involvement can be useful because prosecuting international crimes committed by both sides requires a significant amount of resources. For instance, states need modern and secure documentation storage facilities, forensic and financial experts, effective witness protection programs, and outreach capacities so that victims and the public at large understand the work of a judicial mechanism. Expecting the Sri Lankan judicial system to have the resources to effectively deliver all these, without any international assistance, will place significant pressure on the country’s already burdened court structure. A judicial mechanism that has an international character will have a better chance of accessing adequate resources in order to effectively deliver justice.

Third, in addition to human capacity post conflict states often do not have the legal tools to prosecute international crimes. This is the case in Sri Lanka where egregious crimes of an international nature are not criminalized in the domestic legal framework, creating a vacuum. This vacuum can be filled if states look to international law for guidance. For example, India used the Rome Statute (an international legal document which criminalizes international crimes such as crimes against humanity and war crimes) for guidance when drafting its Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill of 2005. This Bill sought to address violent communal attacks that had taken place throughout India’s history. Thus, international law provided the language in which to understand and address impunity in India. In the same way, Sri Lanka could seek inspiration from international law when incorporating international crimes such as crimes against humanity and war crimes into its domestic law. Sri Lanka has already relied on the language of international law when drafting legislation like the ICCPR Act, the Convention against Torture Act and the Enforced Disappearances Act.

Finally, having an international presence when prosecuting international crimes may ensure that the judicial mechanism is not subject to political pressure and interference. In the past, members of Sri Lanka’s executive branch have sought to influence the decision making of local judges, in violation of Sri Lanka’s Constitution. Therefore, having international involvement will help alleviate this risk by insulating judges, prosecutors and investigators, including Sri Lankan ones, who will be part of the judicial mechanism.

In sum, the Sri Lankan government should not be weary of international involvement in the judicial mechanism that was promised to be set up under UN Human Rights Council Resolution 30/1. By having international involvement, the Sri Lankan government will be able to ensure that the judicial mechanism has the necessary expertise, resources and legal tools to deliver justice to victims of the war. In short, the judicial mechanism should be as domestic as possible and international as necessary.

In 2015 the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 and committed to setting up a judicial mechanism, amongst other things, to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. Over the course of the last two years, President Sirisena and other senior Ministers of the government have strongly expressed their opposition to the idea of criminal accountability for international crimes allegedly committed in the context of the armed conflict. The government’s stance on this matter seems to have been tacitly endorsed by the larger Sri Lankan public. The idea that criminal trials are inherently ‘foreign concepts’ that are sought to be imposed on Sri Lanka by Western countries has gained strong traction within the mainstream public discourse. However this article seeks to briefly demonstrate that criminal justice and accountability are in fact deeply rooted in the Sri Lankan legal, social and religious tradition; perhaps far more than notions of forgiveness and reconciliation.

Sri Lanka’s historical chronicles often note (with pride) that the country had an ancient and sophisticated system to administer justice in the island. Admittedly, since the system functioned under a monarchy it did not fully reflect the principle of separation of powers. Often the monarch himself or senior administrative officials (Vidanes, Mohottalas, Adigars and Disawas) exercised judicial power. However, even this ancient system privileged the promotion of criminal justice and accountability as a means of achieving social cohesion and peaceful relations. At the lowest levels, the Gamsabhava (village tribunals) adopted flexible and community friendly processes to swiftly deal with minor offences in a village. The flexibility and simplicity of the processes were aimed at achieving swift criminal justice/accountability in order to ensure that disputes did not give rise to further animosity. At the highest level, an institution known as the Rajya Sabhava (King’s Court) is said to have conducted proceedings roughly equivalent to modern day criminal trials. During the time of the Kandyan Kingdom, this institution which was known as the Maha Naduwa is said to have conducted criminal trials, with the Chief within whose jurisdiction the offence had initially been committed acting as the prosecutor.

The policy underlying the aforementioned system was undoubtedly the maintenance of social order through the rule of law. Dr A.R.B Amarasinghe (one time judge of the Supreme Court of Sri Lanka) in his work ‘The Legal Heritage of Sri Lanka’ (at page 33) states that some of the earliest kings in Sri Lanka’s recorded history were guided by the Dharmashastra; an ancient Indian body of jurisprudence which included rules of conduct for monarchs. The Dharmashastra prescribed a duty on the monarch to carry out danda (punishments) to maintain social order and also stated that the failure of a ruler to punish an offender transferred part of the offender’s guilt to the ruler. Subsequently, even as the Sri Lankan rulers embraced Buddhism and the country crafted its indigenous system for the administration of justice, this monarchical responsibility does not seem to have diminished. Prominent Buddhist ecclesiastical works during the Anuradhapura period (Majjhima Nikaya) and literary compilations during the Polonnaruwa period (Amavatura) have characterized punishment as being mandatory for the general welfare of the kingdom and its people. (Dr A.R.B Amarasinghe ‘The Legal Heritage of Sri Lanka’ at page 35)  This was presumably on the basis that there could not be effective socio-economic activities in the country if there was no law and order. The maintenance of the rule of law through punishment seems to have been held in such esteem that court of law have been referred to as dharma sabha (righteous council) and judges as dharma vinicchakara (righteous judge) in another prominent ancient work called Samanthapasadika. (Dr A.R.B Amarasinghe ‘The Legal Heritage of Sri Lanka’ at page 35) Moreover, the principle of equality before the law had been strictly imposed by the rulers at that time. Dr Amarasinghe’s book gives numerous examples of even members of the Buddhist clergy being sentenced to harsh punishments for offences ranging from treason to murder. 

Therefore Sri Lanka always seems to have embraced criminal justice as one of the surest means of sustaining peaceful relations in the community and nation at large. The value of punishment, with its concomitant benefit of deterring and disciplining individuals has for long guided the personal and community lives of Sri Lankans. The historical importance given to criminal justice in the country is also deeply rooted in the Buddhist religious tradition. Although Buddhism required one to eschew violence and embrace the path of compassion towards fellow living beings, punishment was not necessarily considered as being contrary to this philosophy. Dr Amarasinghe in his work cites a portion of the Polonnaruwa Galpotha Slab Inscription of King Vijayabahu the 1st in this regard. The said inscription characterizes punishment as an act of compassion towards the offender since it leads the offender away from evil and presumably reopens a pathway to gain merit. In a sense, the suffering an individual underwent due to punishment was perceived as a form of expiation that was essential before the person could be re-accepted by society. The ancient court system also seems to have accepted this idea by specifically ordering the community not to vilify or ostracise a person who had already been punished by reference to his previous offence.

The above analysis indicates that punishment and criminal justice are concepts deeply rooted in Sri Lanka’s socio-legal and religious tradition. In spite of this, whenever criminal justice and accountability is spoken of in the context of mass atrocity crimes, the perennial political response has been to dismiss criminal trials as being ‘foreign impositions’ and adopt the language of reconciliation and forgiveness. Very often a criminal justice response has been rejected in relation to state sponsored violence for political reasons. The purported ‘alienness’ of criminal trials has been used as a smokescreen to justify inaction in this context. Further, it has sometimes been argued that a Truth and Reconciliation Commission (TRC) is a more culturally appropriate response to deal with mass atrocity crimes i.e. by forgiving, reconciling and moving forward. Nevertheless, legal commentators in Sri Lanka have argued that a South African styled TRC is likely to have limited success in Sri Lanka since the Christian theological concepts of repentance and forgiveness – which underpinned the South African TRC – have limited resonance among the majority of Sinhalese, Tamils and Muslims. Such a conclusion is buttressed by the historical experience of Sri Lanka as well.

In sum – contrary to the mainstream public discourse today − Sri Lanka’s historical experience paints criminal justice and accountability as autochthonous principles that have for centuries been used as tools to build and sustain social cohesion within the nation. Therefore, the negativity attached to criminal accountability when it comes to Sri Lanka’s transitional justice process is both unwarranted and a blatant distortion of our historical experience which privileged punishment as a tool of social engineering.

A few days ago, the Office for Reparations Bill was gazetted. According to the Bill, the Office is expected to play a role in the formulation and implementation of reparations policies for violations of human rights and humanitarian law that have occurred in a specific context. However, the role of the Office is limited to making recommendations to the Cabinet of Ministers and implementing decisions of the latter with respect to reparations. As such, the Office has essentially no decisional power with respect to the design and implementation of reparations policies.The following highlights fundamental shortcomings and other issues in the Bill.

 

Office's Mandate

According to the Bill, the Office is competent to provide reparations (or make recommendations for reparations) for violations of human rights and humanitarian law that have occurred (i) in the course of, consequent to, or in the connection with the conflict which took place in the Northern and Eastern Provinces or its aftermaths, (ii) in connection with political unrest of civil disturbances,(iii) in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or (iv) due to an enforced disappearance (clause 27).

Aggrieved Persons

The Bill specifies that an aggrieved person is “a person who has suffered a violation of human rights or humanitarian law (as contained in the First, Second, Third, or Fourth Geneva Conventions of 1949)” (clause 27). The limitation of the relevant humanitarian law to the provisions of the Geneva Conventions is problematic. Indeed, the Conventions’ provisions, with the exception of common article 3, are only applicable to international armed conflicts and as such will not be relevant to Sri Lanka. Instead, the Bill should also have recognized violations of customary international humanitarian law applicable to non-international armed conflicts.


Furthermore, it is essential that the Bill’s definition of an aggrieved person mirrors—or is interpreted in light of—the comprehensive definition of a victim provided in the 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. It is important to note in this respect that under the Basic Principles and Guidelines, the term victim also includes the immediate family or dependants of the direct victims as well as persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

 

Formulation of Reparation Policies

Criteria for the design of reparations policies

Although the Bill does not comprehensively specify the criteria according to which recommendations for specific types of reparation should be made, it nonetheless provides some indication in this respect. Notably, it appears that being the victim of a serious violation of human rights or humanitarian law in the context specified by the Bill constitutes a necessary but not a sufficient condition to benefit from reparations (clause 11(1)(c)). In fact, the Bill specifies that the Office should formulate recommendations with regard to the criteria for eligibility for aggrieved persons to obtain reparations (clause 11(1)(g)(i)). It is unclear whether these criteria would clarify the definition of an “aggrieved person” adopted in the Bill or would constitute additional criteria for eligibility.

The Bill also provides limited indication regarding the factors to be taken into account when making recommendations for acceding to and prioritizing reparation claims and deciding on the collective or individual nature of reparations (clause 12(1)). Relevant criteria include the seriousness and impact of the violation and the indigence of the victim in particular when deciding on the appropriateness of monetary compensations. However, the mention of these criteria as well as principles such as non-discrimination, facilitating reconciliation, and ensuring sensitivity to the experience of all aggrieved parties are purely perfunctory and do not offer actual guidance on the design of reparation policies.

Cabinet Approval

In terms of its functions, the Office will first have a limited role in the design of reparation policies. It is envisaged that the Office will formulate and forward reparation policies and guidelines to the Cabinet of Ministers for approval (clause 11(1)(g)). Accordingly, the adoption of policies and guidelines on reparations designed by the Office is contingent on approval being granted by the Cabinet of Ministers. This is an unnecessary procedure which can unduly hinder the expeditious fulfilment of the Office’s mandate. As per Article 42(1) of the Constitution, the Cabinet of Ministers is charged with the “control and direction of the Government of the Republic”. However, this does not necessarily imply that the Cabinet of Ministers is constitutionally required to approve all policies. This unnecessary requirement of designating the Cabinet of Ministers as the final decision-maker on the adoption of reparations policies and guidelines is very problematic as the latter may refuse and/or delay approving the recommended policies on reparations. Additionally, the Bill does not provide for any safeguards to ensure that the Cabinet of Ministers will duly consider the Office’s recommendations. The Bill is wholly silent on whether the Cabinet of Ministers has a legal obligation to consider the recommendations made by the Office, is bound to exclusively approve recommendations made by the Office, has full discretion to reject such recommendations or order alterations. Furthermore the Bill does not provide for any timeline for approval to ensure expeditious approval of policies and guidelines on reparations.

Parliament Approval

Even more problematic is the requirement that the policies and guidelines approved by the Cabinet of Ministers and authorizing the disbursement of funds must be placed before Parliament for its approval (clause 22(4)). It must be noted that the great majority of policies and guidelines on reparations are likely to entail the disbursement of funds. As such, the Bill adds another layer of Parliamentary oversight by specifically prohibiting any disbursement unless the reparations policies and guidelines authorizing these have been approved by Parliament. It must be noted that, despite the Cabinet of Ministers being collectively answerable to Parliament, not all policies/decisions of the Cabinet of Ministers require specific approval by Parliament. As such, this procedural requirement is unnecessary. It is also redundant given that the Office has its own Fund for the carrying out of its mandate (clause 16).

 

Implementation of Reparation Policies

Limited powers of implementation


The Office does have the power to implement the policies of reparation after they have been approved by the Cabinet of Ministers and grant individual and collective reparations (clause 11(1)(h)), however the Bill stops short of clarifying if the Office has the power to direct state entities to act in furtherance of the policies. In fact, it would have been extremely useful for the Office to have the power to direct state institutions to implement reparation policies. Such a power could have, for instance, been used to speed up the release of private land by the military or to implement important education reforms. Again, the Bill significantly limits the scope of the Office’s initiative with respect to the carrying out of reparations programmes.


Examination of reparations claims

In terms of the procedure for the examination of reparations claims, the Office is empowered to receive and verify the authenticity of such claims (clause 11(1)(b)). This would require the Office to verify that the person has been the victim of a serious human rights or humanitarian law violation, and that the said violation falls within the mandate of the Office. Although the Office for Reparations may gather information (clause 11(1)(q)) or request assistance (clause 11(1)(t)) from governmental authorities or any other source, unlike the Office on Missing Persons, it is not vested with extensive powers of investigation. It is therefore likely that the threshold for verification will be relatively low. It is important to recall in this respect that according to international standards, and in particular the Basic Principles and Guidelines, the fact that the perpetrator is not identified, apprehended, prosecuted, or convicted shall not prevent the recognition of the victim’s status. While guidance with respect to the examination of the reparation claims should ideally be provided in the legislation, absent any criteria in the legislation, the method for verification (including the type of information or evidence required to prove the claim, the threshold of certainty required and any appeal mechanism available to victims whose claims have been rejected) must be specified in the rules and regulations issued by the Office (clause 11(1)(e)).

 

Conclusion

The recently approved Office for Reparations Bill lays out the Office’s mandate, composition and functions. It also creates a number of offenses to ensure that the carrying out of the Office’s functions remain free from interferences. Although the Bill is generally quite detailed, it also leaves unresolved a number of questions. Among these are procedural issues regarding the discharge of the Office’s functions as well as substantial questions regarding reparations policies. While these questions may be left to the appreciation of the Office, questions regarding the Office’s mandate would benefit from further clarifications in the Bill itself.
More critically, the Bill does not grant any significant powers to the Office with respect to the design or implementation of reparations policies. This is extremely concerning given that the Office was envisaged precisely to play a leading role in this respect. Instead, the Office’s functions are limited to making recommendations to the Cabinet of Ministers and implementing the policies decided upon by the latter. The significant limitations of the Office’s decisional powers call into question the very need for a new legislation to create such a body in the first place. One must also question the usefulness of the guarantees of independence especially provided for in the Bill (including the appointment of the members on the recommendations of the Constitutional Council) when in fact the Office will merely make recommendations with respect to reparations policies that will ultimately have to be decided upon by Cabinet and Parliament.