OCTOBER 2017

TJ INSIGHT

Sri Lanka’s TJ discourse in October has understandably been dominated by the country visit and preliminary observations/recommendations of the UN special rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence, Mr Pablo de Greiff. In his statement issued at the end of his visit, the Special Rapporteur regrets that the TJ process is nowhere close to where it should have been more than 2 years after first visit. He made important recommendations regarding ongoing rights violations and trust building measures. In particular, he reemphasizes the need to repeal and replace the PTA, terminate military involvement in commercial activities, address land issues, and put an end to ongoing surveillance and harassment of human rights defenders and other social actors by security forces. He also reminds of the importance to strengthen the Victim and Witness Protection scheme. A longer discussion of his statement follows at page 3.


The Constitutional Council has also called for nominations and applications to the Office on Missing Persons (OMP). Given President Sirisena and his supporters’ near complete disavowal of the government’s TJ commitments, the jury is out on whether the OMP will be allowed to function effectively. In this regard, the credibility of those appointed will be an important test. The OMP Act requires that that the composition of the OMP reflects the pluralistic nature of the Sri Lankan society; and that the members of the OMP should have previous experience in fact finding or investigation, human rights law, international humanitarian law, humanitarian response, or possess other relevant qualifications. Finally, the government’s vacillation and broken promises has also led to widespread discontent within the Tamil community. The transfer of a criminal trial of three Tamil speaking persons − indicted under the PTA − from the Vavuniya High Court to the Sinhala speaking Anuradhapura High Court led protests and widespread discontent in the North and East. The combination of diminishing political will; diminishing pressure from international actors; and diminishing political time means that the government will almost certainly fail to fulfill its TJ commitments meaningfully during its term. The question now is how far the government will go with respect to the modest reform initiatives it has already undertaken, or whether these too will fall prey to what is fast becoming an inhospitable environment for TJ.

 

WHAT'S NEW 

ARTICLES 

• ‘Observations by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr. Pablo de Greiff, on the conclusion of his recent visit to Sri Lanka’ by United Nations Human Rights Office of the High Commissioner on 10/23/2017

• ‘Beyond Box-Ticking: Unpacking Pablo de Greiff’s Statement on Sri Lanka’ by Raisa Wickremetunge, Gorundviews on 11/6/2017\

• ‘Tensions unravelling across the reform road-map’ by Kishali Pinto Jayawardena, The Sunday Times on 11/5/2017

• ‘Don’t Be Fooled by Sri Lanka’s UN Engagement: Colombo remains unserious about transitional justice.’ by Taylor Dibbert, The Diplomat on 10/27/2017

• ‘Women demand better access to truth, justice and reparations in Sri Lanka’ by Yolanda Foster, The London School of Economics and Political Science on 10/22/2017

• ‘The Military Perspective on Constitutional Reform and Human Rights’ by Daniel Alphonsus, Colombo Telegraph on 11/9/2017

• ‘Sri Lanka’s military aren’t ready to be peacekeepers’ by Gary Anandasangaree on 11/3/2017

• ‘ව්යවස්ථා ප්රතිසංස්කරණ සහ මානව හිමිකම් පිළිබඳ හමුදාමය පර්යාදර්ශය’ by Vikalpa on 11/8/2017

 

PUBLICATIONS 

• ‘Normalising the Abnormal: Militarisation of Mullaitivu’ by Adayaalam Centre for Policy Research in October 2017

• ‘Does Reconciliation Prevent Future Atrocities? Evaluating Practice In Sri Lanka’ by Kate Lonergan, United States Institute of Peace, in October 2017

 

THE STATEMENT BY THE SPECIAL RAPPORTEUR FOR THE PROMOTION OF TRUTH, REPARATION AND GURANTEES OF NON-RECURRENCE

 

The Special Rapporteur for the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, concluded a two week long visit to Sri Lanka this month. He is expected to report to the Human Rights Council on progress—or the lack thereof—in Sri Lanka later next year. However, as customary, he issued a statement on the conclusion of his visit indicating what form his Report to the Council is likely to take.


From SACLS’ point of view, the statement is very disappointing. Our sense of frustration has also been echoed elsewhere by human rights activists. In particular, we regret that the statement failed to clearly signal that pursuing accountability through the establishment of a special court and a special prosecutor’s office remains a priority. Mr. de Greiff’s statement fails to recall the need to establish the special court or special prosecutor’s office and to retroactively incorporate international crimes into domestic law, including enforced disappearances. This is particularly disappointing given that sections on accountability in UNHRC Resolution 30/1 in which the government’s undertakings were recorded were the most heavily negotiated. In particular, the Resolution “affirm(ed)....the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.” The Resolution also alluded to the need for the retroactive incorporation of international crimes into national law. Unfortunately, what the Council thought fit to affirm and re-affirm in 2015 and 2017, the Special Rapporteur either ignored in total or simply rejected. In fact, in his statement’s sole reference to the architecture of the special judicial mechanism envisaged by the Resolution, the Special Rapporteur bemoaned that the debate on the nationality of judges has “led to politicization of the transitional justice discussions”, as if the discussions on the other aspects of Transitional Justice had not been similarly politicized already.


Equally problematic was the statement’s underlying position on sequencing. Human rights defenders in Sri Lanka and elsewhere have warned the Special Rapporteur against a “truth first, justice later approach”. Such an approach would enable the government to conveniently delay having to deal with justice. A strategy that has been at play in the past two years. While the Special Rapporteur’s statement did not explicitly endorse it, it leaves no room for doubt of his support for the government’s strategy. After denouncing the government’s procrastination, the statement encourages the government to enact legislation on a truth commission “promptly”. In contrast, the recommendations on justice are limited to requesting progress on a few emblematic cases through the regular justice system and establishing “South to South” cooperation agreements. This unwillingness to reference the government’s specific commitments on accountability and a special court mechanism—let alone affirm it—is particularly disturbing in light of civil society’s unanimous call, during meetings with the Special Rapporteur, to put accountability back at the centre of the TJ agenda.


Given the government’s growing intransigence with respect to Transitional Justice, those tasked with advancing the TJ agenda cannot and must not betray the aspirations of victims who have fought a determined and unlikely struggle to vindicate their rights. Instead, the need of the hour is hard work and an honest pursuit of stated goals in the face of growing obstacles from within and without.

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