12 April 2016

Transitional justice without justice? A way out

Written by

As Sri Lanka approaches two years of Yahapalanaya, those concerned with issues of accountability and redress for mass atrocity crimes face a new and diverse set of challenges as they navigate Sri Lanka’s politics. Despite the historic advances marked by Human Rights Council (HRC) Resolution 30/1, and Sri Lanka’s then unequivocal commitment to justice and accountability, momentum has diminished considerably. President Sirisena appears on the one hand to be pursuing a political solution with admirable sincerity, but has drawn bright red line around the participation of foreign judges in a special court, and if unchecked, could well extend those lines to cover other aspects the Transitional Justice (TJ) agenda.

But this political challenge—entirely expected for any observer of Sri Lankan politics—is not the only impediment. As dozens of activists have repeatedly warned, a rather more subtle but no less serious a threat to justice is also emerging, and if left unchecked, threatens to bury prospects for justice. The notion of sequencing Transitional Justice mechanisms, and in particular the adoption of a “truth first, justice later” approach has now reared its head in Sri Lanka. As Gehan Gunatilleke notes in a recent interview:

" Local civil society actors have been pressing for sequencing that does not place accountability on the back burner. But this has not been the consistent view of international actors and advisors. I’m afraid the lack of deference to local demands has cost this process important momentum in terms of establishing an accountability mechanism."

At the outset, it is of note that the constitutional reform process has now taken centre-stage, and properly so. While I supported decisive action to pass legislation on the OMP and a special court pending the release of the consultation task force’s report, now that there has been a delay in establishing a special court, there is little appetite and indeed little purpose in rushing through TJ legislation in the present, particularly since negotiations on a new constitution have reached a decisive stage. The question therefore is what steps the government must take once a referendum is over? In the event Yahapalanaya prevails at a referendum, buoyed by electoral success and a third consecutive defeat for the Rajapaksa brand, the government would inevitably obtain a second (or perhaps third?) wind of political capital. What then must be done in the immediate aftermath of a successful constitutional referendum? In a recent paper, Isabelle Lassee and Indumini Randeny argue that a “truth first, justice later” approach to sequencing is, contrary to some claims, not a universal best practice; is unsuited to Sri Lanka; would undermine prospects for justice; and would in fact undercut truth-seeking efforts that are not accompanied by anti-impunity measures. Similarly, human rights defenders have warned in unison that a truth and reconciliation commission (TRC) that is not accompanied by special court legislation “will not be acceptable or credible” and that it will instead “heighten a sense of impunity and alienate victims and civil society from the process.” Of note is that this civil society statement was issued in response to a document released by the Government’s Secretariat for Coordinating Reconciliation Mechanisms which states that a TRC would be established and running by end 2017, but that special court would be established “after that”.

Nevertheless, the government has not tied itself to a firm position on sequencing and has ample room to signal a change of position without a loss of face. In fact, there is considerable evidence to suggest that SCRM’s recent preference for “truth first, justice later” sequencing was adopted principally on international advice, including that of UN functionaries.

If unchecked, the “truth first, justice later” approach could have disastrous consequences for the TJ process in Sri Lanka. The government may well find itself championing a TRC that is opposed by Sinhala Buddhist nationalists and the military—who may view the TRC as a dishonest prelude to a special court—as well as human rights defenders, civil society and the government’s Tamil constituency who will oppose it for different reasons. The latter will inevitably view a TRC sans trials as an effort to divert attention from accountability, with a real possibility of some form of boycott. While external advisors may be wedded to a perceived global template, and may not sufficiently appreciate the likelihood or cost of the catastrophic eventuality of prioritizing yet another commission over justice in Sri Lanka, the government has a political responsibility to steer its own TJ process to a successful conclusion. At the very least, it has a political interest in preventing a signal implosion of the process that is certain to follow a misguided “truth commission first, delayed justice” approach. It is thus essential that the government heeds the voices of caution from within the country.

Similarly, the United Nations also has a responsibility to intervene to check the dangerous trajectory on which its engagement with TJ in Sri Lanka has been set. It is now essential that senior officials in the Office of the High Commissioner for Human Rights (OHCHR), including High Commissioner Zeid, act urgently to prevent increasing civil society skepticism of the UN’s engagement with TJ. The UN has a chequered history of engagement with human rights in Sri Lanka, acknowledged candidly in its own Petrie Report, with OHCHR a notable exception. In fact, it is inconceivable that senior officials at OHCHR endorse a “truth first, justice later” approach for Sri Lanka, given that their comprehensive OISL Report does not even recommend a TRC and that their primary recommendation was a special hybrid court. In this context, High Commissioner Zeid’s March 2017 report to the Human Rights Council provides a timely opportunity to keep the focus on accountability, address misconceived efforts to delay justice, and allay the concerns of victims and human rights defenders.

If Sri Lanka’s Transitional Justice mechanisms are to be made to work, they must serve the interests of those for whose ostensible benefit the mechanisms are devised. Reformists within government, senior OHCHR officers and civil society actors must now assert themselves to resist efforts to indefinitely postpone justice. It is up to them to now steer the process to success with much the same energy and patient willingness to negotiate they admirably demonstrated in Geneva last year. Transitional Justice without Justice is neither useful nor necessary. It can and must be resisted.

Niran Anketell

Niran is an Attorney-at-Law who has litigated human rights, constitutional law, and civil cases in Sri Lankan courts for over seven years. He graduated with an honours degree in law from the University of Colombo, where has was awarded the Gold Medal for Most Outstanding Student, before taking oaths in 2008. Niran was thereafter awarded two full scholarships—the Fulbright Scholarship and the prestigious Hauser Global Scholarship—to pursue an LL.M in International Legal Studies at New York University.

Niran has also worked at the International Co-Prosecutor’s Office at the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a Fellow of the Centre for Human Rights and Global Justice, New York. He has published widely on constitutional reform and Transitional Justice, and currently serves on the Sri Lankan Constitutional Assembly’s Panel of Experts and on the Expert Panel of the Task Force on Transitional Justice Consultations. Niran has taught undergraduate and postgraduate course on international law, criminal law, Transitional Justice and human rights at the University of Colombo.

Outside the law, Niran’s interests are in rugby and politics.