NOVEMBER|DECEMBER 2016

TJ INSIGHT

The long awaited Report of the Consultation Task Force on Reconciliation Mechanisms (CTF) was finally released on January 4, 2017, close to a year after it was mandated. The absence of the President and the Prime Minister at the Launch—held ostensibly to hand over the report to the heads of government who mandated the report—was a telling reminder of how significant the loss of momentum on Transitional Justice has been over the last year.
On the one hand, the President has directly contradicted his own government’s commitments in Geneva on the participation of international judges in trials, and repeatedly emphasized that ‘war heroes’ will not be punished. At a more technical level the government has, on the advice of Pablo de Greiff UN Special Rapporteur on Transitional Justice, set itself on a trajectory to delay trials and lead with a truth-telling commission instead. Even the delay in the gazetting of the OMP Act—once held out as ‘low hanging fruit’—evidences the rapid deterioration of momentum and space.
None of these developments are surprising. We have warned—including in these Bulletins—that the narrow window for Transitional Justice opened by the regime change of 2015 would swiftly close unless the moment was seized. The wisdom of spending considerable ‘politically sensitive’ time on consultations—another idea advanced by Mr. de Greiff—must be evaluated in this context.
What is clear now is that unless a ‘game changing’ event shakes up the process in Sri Lanka, the government’s commitments will eventually become unachievable. What such a game changer would look like is still unclear. But those committed to Transitional Justice in Sri Lanka must strategize and act soon, before it is too late. In this, the excellent report of the CTF deserves attention and praise, and is an invaluable tool to pressure government, remind it that the demand for justice is local and real, and establish a benchmark for what any reconciliation process—present or future—must look like.

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GOVERNMENT MANDATED REPORTS

OPERATIONALIZING THE OFFICE ON MISSING PERSONS: MANUAL OF BEST PRACTICES

On 23rd August 2016, the Sri Lankan Parliament adopted the Act to establish an Office on Missing Persons (OMP). The OMP was created as part of a four-tier transitional justice proposal that comprises, alongside the OMP, a truth commission, a special court and a special prosecutor’s unit, and an office on reparations.
The establishment of the OMP as a discrete transitional justice mechanism dedicated to “the search for and tracing of missing persons and the clarification of the circumstances in which they went missing” responds to the humanitarian imperative of resolving over 16,000 reported cases of missing persons in Sri Lanka. Despite the appointment by successive Sri Lankan Presidents of several Commissions of Inquiry (CoIs) to look into the issue and investigate these cases, thousands of families are still unaware of the fate of their loved ones. Past CoIs were marred with allegations of unprofessional and unethical behavior on the part of their staff. These Commissions were also criticized for their lack of independence and efficiency. In this context, the creation of the OMP was received with high expectations in some corners and disillusionment in others. For many, the first few months of the Office’s tenure and the first steps that it will undertake in the fulfillment of its mandate will be crucial in determining whether it will break away with the poor record of previous CoIs.
The Office’s mandate encompasses the search for and tracing of missing persons and the clarification of the circumstances of their disappearance. The Act defines a missing person as a person who went missing in certain specific contexts but irrespective of the date of the disappearance. Thus, for the purpose of the Act, missing persons are persons who went missing in the context of “the conflict which took place in the Northern or Eastern Provinces or its aftermath, or if the person is a member of the armed forces or police who is identified as “missing in action” as well as persons who went missing “in the context of political unrest or civil disturbances.” In addition, the Office’s mandate also covers enforced disappearances as defined in the International Convention on Protection of All Persons from Enforced Disappearances. Besides its investigative mandate, the Office is also tasked with centralizing all available data on missing persons, making recommendations to relevant authorities towards addressing the incidence of missing persons, protecting the rights and interests of missing persons and their relatives, and identifying avenues for redress.
In order to fulfil its mandate, the OMP will have to define its internal structure and processes and recruit and train specialized staff. It will also have to devise internal rules and guidelines for its day-to-day functioning and to ensure the respect of best practices in tracing investigations. Finally, the Office will have to make strategic choices including which database to use, which method to adopt for the identification of human remains and which cases to investigate in priority.
This Manual surveys best practices on tracing investigations in various countries including Argentina, Chile, Peru, Colombia, Guatemala, Bosnia and Herzegovina, Kosovo, Iraq, South Africa, and Nepal in order to guide the Office as it operationalizes its mandate. To this end, the Manual examines the successive steps that the Office will have to undertake to perform its functions and fulfil its mandate, including: defining its internal structure and oversight mechanisms; staffing; designing a witness protection program; planning and opening an investigation; receiving and procuring information; carrying out on-site investigations; identifying human remains; securing and storing data; and carrying out outreach activities. For each of these steps, the Manual makes recommendations based on best practices, taking into account the powers of the Office under the Act and the specific context in Sri Lanka.
 

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