MAY 2018

 

TJ INSIGHT

This month, the OMP has started its early outreach activities. The OMP Commissioners met with families of missing persons in Mannar and Matara to share the OMP’s proposed plan of action and obtain feedback. Common among the families was scepticism about the OMP’s capacity to offer them speedy solutions. Families of missing persons in Mannar had reportedly raised doubts about the OMP being any different from previous Commissions of Inquiry on Missing Persons, whilst families in Matara had criticized the inability of successive governments to provide them economic support. As anticipated, managing expectations of families is going to be a complex exercise for the OMP given the varying expectations about the Office across regions. However the OMP’s proposal to establish 12 regional offices covering the entire country and its use of District Secretariats to hold the early outreach meetings is a positive development. It shows a willingness on the part of the Commissioners to harness local/grassroots institutions to further its mandate and early outreach.

Also this month, the Human Rights Commission of Sri Lanka (HRCSL) initiated a public inquiry on the anti-Muslim violence that took place in Kandy two months ago. The purpose of this inquiry – according to the HRCSL – was to discover ‘if any individual's human rights have been violated during the incident’. This is undoubtedly a step in the right direction but should also be the starting point of a process to hold perpetrators connected to the incident criminally accountable. However, as SACLS pointed out in March, holding perpetrators of the anti-Muslim violence accountable under Sri Lankan criminal law may still be an insufficient response since the violence could potentially amount to the crime against humanity of persecution.     

In the backdrop of all these developments, the Commander of the Sri Lanka army revealed that one of the objectives of the army’s new ‘Directorate of Overseas Operations’ was to ‘prepare material to defend itself against war crimes charges made in the international arena’. This statement is extremely worrying, particularly in light of the government’s unequivocal communication at 37th Session of the UN Human Rights Council that it is only contemplating a purely domestic accountability mechanism. It may therefore be an opportune time for stakeholders to engage directly with the government to insist on the full implementation of UNHRC 30/1, address deep rooted misconceptions about foreign participation in Sri Lanka’s transitional justice process.

 

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Preliminary Observations on the Draft Office for Reparations Bill

The Prime Minister’s Office released the draft Office for Reparations Bill this month pursuant to an information request filed by Mannar based human rights activist Shreen Saroor. The Cabinet memorandum pertaining to the Office for Reparations Bill characterizes the Office as an ‘independent institution’ set up to provide reparations for serious human rights and humanitarian law violations. The draft Bill states that the said violations should have occurred (a) in connection with the civil war in the North-East, (b) a civil disturbance/political unrest, (c) in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or (d) due to an enforced disappearance (clause 19).

According to the draft, the Office for Reparations will play a central role in the formulation and implementation of reparation policies. First, it will have a role in the design of reparation policies and as such will formulate and forward reparation policies to the Cabinet of Ministers for approval (clause 7(1)(e)). Second, it will be tasked with implementing the reparations policies approved by the Cabinet of Ministers (clause 7(1)(f)). The draft specifies that with respect to the formulation of recommendations, the Office shall draw on available expertise (clause 7(2)(b)) as well as the views of victims (clause 7(2)(a)). A good starting point in this respect would be for the Office to take account of victims’ views on reparations as noted in the CTF report.

According to the draft, the Office is empowered to receive reparation claims (clause 7(1)(b)). As specified in the draft itself, this would require the Office to verify the authenticity of the reparations claims i.e. 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. It is noteworthy in this respect that although the Office of Reparations may gather information (clause 7(1)(p)) or request assistance (clause 7(1)(s)) 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. While guidance in this respect 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 7(1)(c)).

Additionally, while the draft specifies that a victim is “a person who has suffered from a serious violation of human rights or humanitarian law” (section 19), this definition does not provide sufficient guidance as to the type of suffering that will be considered when assessing whether a person is regarded as a victim under the Bill. In this respect, the comprehensive definition 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 should be adopted in the legislation. It is important to note that under the Basic Principles and Guidelines, the term victim also includes persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (para. 8).

The draft also fails to define what constitutes a serious violation of human rights and humanitarian law. This is a problematic omission since the concept is central to the definition of victim adopted in the draft Bill. It is also important to recall that while reparations for less serious violations may fall outside the purview of the Office for Reparations, the State obligation to provide reparations for violations of human rights is not limited to gross or serious violations. (ICCPR, Article 2)

Finally, although the draft does not comprehensively specify the criteria on 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 draft Bill constitutes a necessary but not a sufficient condition to benefit from reparations (section 7(1)(b)).  In fact the draft specifies that the Office should formulate recommendations with regard to the criteria for eligibility for victims to obtain reparations (section 7(1)(e)a). It is unclear whether these criteria would clarify the definition of a victim adopted in the draft Bill or would constitute additional criteria for eligibility. The draft Bill also provides indications 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 (section 7(2)).

 

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