24 January 2017

A Gendered Approach to Transitional Justice in Sri Lanka: Women's Perspectives and International Best Practices

Written by Raquel Saavedra and Shreen Saroor

II. Executive Summary

The current report seeks to provide guidance for practitioners and policy makers on how to best structure transitional justice mechanisms to effectively address the gendered aspects of Sri Lanka’s armed conflict, as well as to effectively promote gender equality and women’s empowerment as Sri Lanka moves forward towards lasting peace. The author argues that a gender-responsive approach in all aspects of the transitional justice agenda is essential for the successful functioning of transitional justice mechanisms in Sri Lanka. To this end, each of the proposed transitional justice mechanisms should approach its mandate in a manner that is empathetic towards women’s experience of conflict, accessible to the women most affected by the armed conflict, as well as gender-responsive by taking into account the different impact of human rights violations on men and women. Finally, it is important that women are not only the beneficiaries of transitional justice mechanisms. They must also be equal participants in these mechanisms as staff members, commissioners, judges, and lawyers, and be represented at all levels of the hierarchy of each mechanism.

The first part of the report proceeds by analysing the effect gender has had on women’s experience of the armed conflict in the North and the East, before analysing women’s experience in the post-conflict stage. It then draws a number of overarching conclusions regarding a gendered approach to transitional justice in Sri Lanka. The report then analyses the international legal framework, international best practices, and overarching principles applicable to each of the proposed transitional justice mechanisms. In the second part, the report presents recommendations for each of the four proposed transitional justice mechanisms. All recommendations presented in the report are based on international law and best practices as well as recommendations gathered from consultations with local women’s rights advocates and the victims themselves in the North and East. An aggregation of all recommendations gathered from local consultations can be found in Annexure 1.

III. Introduction

A. Transitional Justice Framework

On 1 October 2015, the United Nations Human Rights Council (UNHRC) passed Resolution 30/1, “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka,” which established a transitional justice framework for Sri Lanka to come to terms with the violence of its past and heal community divisions over the long term. The resolution swiftly followed on the heels of the 2014 UN Office of the High Commissioner for Human Rights Commission of Investigation on Sri Lanka (OISL), which uncovered patterns of violence, such as unlawful killings, arbitrary deprivations of liberty, enforced disappearances, torture, sexual and gender-based violence, and forced recruitment in the context of Sri Lanka’s armed conflict and the post-conflict phase.1 These patterns of violence if proven in a criminal court, could amount to war crimes and crimes against humanity. By co-sponsoring this resolution, the Sri Lankan government committed to developing an Office on Missing Persons, a Commission for Truth, Justice and Reconciliation, a Judicial Mechanism with Special Counsel, and an Office on Reparations, in addition to various other legislative and security reforms.2 This historic resolution’s far ranging recommendations are applauded by many in the international community as a step of critical importance for Sri Lanka to achieve lasting peace and to remedy the significant pain borne by communities affected by the violence. However, in order to succeed in its transitional justice objectives, the government must take an inclusive approach that is informed and designed by those most affected by the violence and which meets international standards and best practices.

One aspect of armed conflict that is often overlooked by transitional justice mechanisms is the effect gender has on an individual’s experience of war and how gender relations contribute to patterns of violence during armed conflict. In Sri Lanka, women are victims of some of the worst human rights abuses stemming from the war on account of societal patterns of discrimination that both pre-date the war and continue into the post-war period. However, they have responded to violence in different ways and, in some instances, have created spaces of empowerment. As a result, their post-conflict grievances and needs are diverse. Hearing their complex experiences as both survivors and actors is essential for Sri Lanka to come to terms with what happened during the armed conflict, as well as to advance women’s equality as society strives to move forward towards lasting peace.

Sri Lanka will need to incorporate a gender-sensitive approach into the mandate of each mechanism in order to make the promise of HRC Resolution 30/1 a reality. To this end, Sri Lanka’s transitional justice mechanisms should both listen to women’s stories and must also be designed and implemented by them. This was consistently expressed in written submissions to the Consultation Task Force by various women’s rights organisations and groups in regards to each transitional justice mechanism.3 As was further expressed, gender-sensitivity will require recognising the multiple roles women play as primary caregivers and breadwinners, the differences in experiences between men and women in access to services, and that women are not merely victims of sexual violence.4

As transitional justice mechanisms in other contexts have traditionally failed to capture or partially captured the complex gendered experiences of armed conflict, the government will need to learn from these experiences in order to design mechanisms that are responsive to the gendered aspects of its own armed conflict.

B. Purpose of the Report

The purpose of the present report is threefold:

1. To provide the perspective of women who are particularly affected by the conflict on the design of transitional justice mechanisms. Governments have often failed to specifically consult women in the design of new government policies or programs, even when the outcome of these programs have a direct effect on women’s lives. Even when women are consulted, social, political, or religious discourse sometimes causes women’s concerns to be lost or deemed to be of lesser importance than other concerns. However, as women are equal stakeholders in the outcome of transitional justice processes, it is important to give their opinions due consideration, not just on women’s issues, but also on each of the broader issues on the agenda.

2. To provide women’s perspectives on the gender aspects of transitional justice mechanisms applicable to women. Although feminism and transitional justice has been analysed extensively on the theoretical level, reflecting on its practical implications for Sri Lanka is essential to optimize the design of transitional justice mechanisms. As a result, the present report seeks to provide guidance for practitioners and policy makers on how to best structure transitional justice mechanisms to effectively address the gendered aspects of Sri Lanka’s armed conflict and related human rights abuses, as well as to effectively promote gender equality and women’s empowerment as Sri Lanka moves forward.

3. To build on the recommendations made in the Final Report of the Consultation Task Force on Reconciliation Mechanisms by further elaborating on the steps to be taken to operationalize gender-sensitivity in the transitional justice mechanisms.

At the outset, it must be stated that the analysis and accompanying recommendations contained in the present report in no way replace the invaluable input of survivors, civil society representatives, and gender specialists throughout the design and implementation process of these mechanisms. As such, the present report serves as a starting point for greater engagement amongst all parties on the issue of gender-responsive transitional justice mechanisms in Sri Lanka.

C. Report Roadmap and Methodology

This report surveys best practices, lessons learnt, and international law and principles in order to provide context specific recommendations for achieving gender-sensitivity in the proposed transitional justice mechanisms. In addition to presenting recommendations from local consultations, the report uses relevant international instruments, such as treaties, resolutions, and guiding principles, as well as guides and reports developed in other contexts to inform its broader analysis.

In Part I, the present report explores overarching themes of gender and violence in Sri Lanka and how these themes point towards the need for a gender-sensitive approach in transitional justice mechanisms. This is accomplished by analysing the effect of gender on patterns of violence against women during and after the armed conflict. The report then presents relevant international law, best practices, and guiding principles applicable in the formulation of gender-sensitive transitional justice mechanisms.

In Part II, the present report analyses the appropriate guiding principles and best practices applicable to each mechanism envisaged by the government, respectively. In each section, international law, standards, and best practices relevant to each body are reviewed and recommendations specific to the proposed Sri Lankan transitional justice mechanisms are presented.

“Gender” is used throughout the report to refer to the “socially constructed differences between men and women and the unequal power relationships that result.” Thus, inherent in the term “gender” is the idea that “the differences between men and women are not essential or inevitable products of biological sex differences.”6 By contrast, a person’s “sex” is the “physical and biological characteristics that distinguish males and females.”7 Whereas “sexual orientation,” refers to each person’s “capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different sex/gender or the same sex/gender or more than one sex/gender.”8 Colloquially, these terms are often conflated. An individual’s given sex at birth does not pre-determine either the gender with which he/she identify nor his/her sexual orientation. However, an individual’s sex does influence the gender role and sexual orientation that society subconsciously assigns to that individual, and incidentally determines the way that individual is treated by society.

A proper gender analysis ought to explore the differences in the impact of human rights violations on men and women, in order to identify reparation and reform programs that can meet the diverse needs of men and women.9 While this particular report focuses on women’s experience of the armed conflict in the North and East of Sri Lanka, a gender-sensitive approach must also capture the gendered aspects of male experience of armed conflict, as well as the experience of individuals that identify as gender nonconforming. As little research has been dedicated to each of these gendered aspects of experience in Sri Lanka, additional studies would be required to provide a complete picture of the gendered aspects of Sri Lanka’s armed conflict.

D. Consultation Methodology

Consultations with affected persons and society at large are crucial during the design process of transitional justice mechanisms. Beginning in early 2016, SACLS and the Women’s Action Network (WAN), jointly with other women’s groups and collectives, conducted trainings, interviews and focus group discussions with survivors and women’s rights activists in the North and the East to hear their views on the four proposed transitional justice mechanisms: the Office on Missing Persons, the Commission for Truth, Justice, Reconciliation and Non-recurrence, the Judicial Mechanism with Special Counsel, and the Office on Reparations. This was at a time when women’s groups throughout Sri Lanka were appearing before the Public Representations Committee (PRC) to express concerns regarding existing structures of discrimination, inequality and marginalization enshrined in the Constitution, and prior to the Consultation Task Force (CTF), commencing its own consultations on the design and implementation of proposed transitional justice mechanisms.

Through WAN and other women’s networks, 53 activists and 61 survivors of various forms of violence were consulted via individual interviews, focus group discussions and workshops in the North, East and border villages. These consultations focused on each of the proposed transitional justice mechanisms and identified ways in which women’s ideas, concerns, and recommendations could inform the planning process of these mechanisms. Many expressed the view that the proposed transitional justice mechanisms could be used as a tool to challenge the structural causes of gender inequality, not only by making state and non-state actors publicly acknowledge abuses and violations, but also by offering gender-specific recommendations as to each transitional justice pillar. Finally, it should be noted that many of those who participated in local consultations, also made submissions before the CTF in 2016.

The consultations explored the following questions:

1. What does justice mean to women affected by the armed conflict and related violence?
2. What have affected women and women’s groups learnt from their efforts to demand justice through currently existing mechanisms? How can these lessons learnt be captured into any special mechanism(s) that would be established as part of the transitional justice process?
3. How do affected women and women’s groups perceive the justice processes suggested to date in terms of their capacity to deliver gender justice?
4. How can transitional justice structures and laws be designed (both procedurally and substantively) to account for and remedy existing gender inequities?
5. What demands do affected women have for social justice, in addition to formal justice/accountability?
6. How can transitional justice create social transformation, beyond political and constitutional reforms?
7. What is the gendered impact of various violations experienced by affected women?
8. For what kind of violations do women seek redress and through which mechanism(s)?
9. How do women see the debate on the composition transitional justice mechanisms (local, hybrid and international)?
10. What best practices can be drawn from women’s groups in other countries engaging with transitional justice structures?

In order to facilitate discussion, best practices in comparative jurisdictions were shared with participants. For example, with respect to approaches to be taken by the Office on Missing Persons, the following examples were shared:

• The Argentinean government created a special legal status, “absence by reason of enforced disappearance,” with Peru, Bosnia and Herzegovina, and Chile following suit.
• The Guatemalan government provided psychosocial support and housing for victims and families of disappeared persons, while the Peruvian government provided them with educational and healthcare benefits. Guatemala and Peru both classified relatives of the disappeared persons as direct victims, which made them eligible for reparations; and
• South Africa helped female relatives of disappeared persons gain access to required documents and open bank accounts in order to receive reparations.

With respect to ideas for the Commission for Truth, Justice, Reconciliation and Non-recurrence, the following examples were shared:

• The South African Truth and Reconciliation Commission (South African TRC) held special hearings for women.
• The Peruvian Comisión de la Verdad y Reconciliación (CVR) mainstreamed gender into its proceedings and had a separate gender unit. The mandate of the Liberian TRC required that no one with a record of human rights violations be employed by the TRC, that women be fully represented and staffed at all levels, and that special mechanisms be created to handle women and children victims and perpetrators. It also required the TRC to create a space for testimony, giving special attention to sexual and gender-based violence and special measures for witness protection. The Peruvian CVR noted the gender dimensions of the economic causes and consequences of human rights violations.
• The Liberian Truth and Reconciliation Commission (Liberian TRC) had a gender committee, which provided preparation and pre-hearing support for female witnesses. In Liberia, at least four of the nine Commissioners on the TRC had to be women.
• The Timor-Leste Commission for Reception, Truth and Reconciliation’s (CAVR) gender unit commissioned 200 oral histories by women to supplement women’s testimony before the Commission. In Timor-Leste, at least thirty per cent of national and regional Commissioners had to be women. In Timor-Leste, CAVR hearings covered both sexual violence and women’s other experiences during conflict, including violations of economic and social rights. The Timor-Leste CAVR included a special report chapter on sexual violence. In Timor-Leste, the CAVR recommended prioritizing reparations for widows, single mothers, and sexual violence survivors. It recommended skills training and income-generating activities and recommended that 50 per cent of reparations funds should go to women. The Sierra Leone TRC represented a 50 per cent quota for women’s political representation.
• In Morocco, the TRC recommended that communal reparations incorporate a gender approach and target women specifically. 

With respect to the Judicial Mechanism with Special Counsel, the following examples were shared:

• The International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) statutes list rape as an underlying element of war crimes and crimes against humanity. All three courts have investigated sexual violence cases.
• The Special Court for Sierra Leone dedicated 20 per cent of its investigators to sexual and gender-based violence cases.
• The ICC’s Rules of Procedure and Evidence provide specific measures to protect witnesses of sexual violence, allows for in camera hearings, does not require corroboration for sexual violence cases, and requires its registrar to take gender-sensitive measures. The ICC’s Rome Statute also requires that the prosecutor appoints advisers with legal expertise on sexual and gender-based violence and establishes a victim’s unit staffed with experts in sex-crime related trauma.

Finally, with respect to the Office on Reparations, the following examples were given:

• A study of women in northern Uganda found that women prioritized individual reparations over community reparations. The study emphasized that women need equal representation in all post-conflict decision-making forums so that their views influence outcomes.
• The President of Sierra Leone publicly apologized to women for the government “[falling] short in [its] obligation to adequately protect women from the brutalities of armed conflict.” He asked for forgiveness on behalf of the armed forces, promised to protect women’s rights in the future, and recognized that traditional disparities in Sierra Leone also constituted violations of women’s human rights.
• Liberia included women in security-sector reforms by establishing quotas for recruiting women and creating special education initiatives.
• The Rwandan Defence Forces trained military officers to understand, prevent, and respond to sexual and gender-based violence. They also revised their conception of security to include human security, specifically identifying the threat posed by sexual and gender-based violence and taking responsibility for helping to prevent it.
• South Africa repealed all previous discriminatory legislation, established quotas for women’s representation in government, and adopted gender-responsive budgeting in key departments. South Africa also reviewed all customary law in order to make recommendations for its harmonization with the South African Constitution. In South Africa, traditional law is consistent with constitutional principles, including gender equalities.
• In Uganda, Local Council Courts must be composed of at least one-third women.
• In Burundi, the traditional conflict-resolution body, the Bashingantahe, amended its charter so that women could participate in judicial decisions. This led to an increase in the number of sexual violence cases heard and in increased trust among women reporting crimes.

General recommendations and gender-specific recommendations applicable to each transitional justice mechanism in Sri Lanka emerged from these discussions. These recommendations are presented and explained throughout this report and a summary of the complete outcome of consultations can be found in annexure 1.

IV. Gendered Approaches to Transitional Justice in Sri Lanka

A. Gendered Experiences during Conflict and Post-conflict in Sri Lanka
1. Introduction

Sri Lanka’s armed conflict between government forces and the Liberation Tigers of Tamil Eelam (LTTE) exacerbated the socio-economic and physical vulnerabilities of women, while simultaneously creating opportunities for their empowerment in the North and East. These vulnerabilities are due to embedded societal inequalities, which continue to contribute to women’s socio-economic and physical vulnerabilities in the post-war period.10 The present section proceeds by analysing the effect gender norms have on women’s experience of the conflict, followed by an analysis of the effect gender norms have on their experience of the post-conflict era. The section concludes by discussing a number of themes that emerge from analysing gender norms and armed conflict, which are relevant for approaches to transitional justice in Sri Lanka. As will be shown below, women are often both empowered and victimized and experience armed conflict in highly different ways. However, one constant remains: gender affects the challenges and patterns of violations to which women were subjected to during armed conflict and continue to be subjected to since the end of the armed conflict. Rectifying the harms that women have endured and allowing them to excel within society will necessarily require that transitional justice mechanisms, not only analyse the causes and effects of armed conflict, but the underlying societal assumptions about gender that create inequality and fuel violence.

2. Gendered Experiences of the Conflict

During armed conflicts, the very fabric of communities is often re-organized either in response to the basic needs of survival or military necessity. As a result, armed conflict often has a dramatic effect on traditional gender roles within a society, particularly the role of women. For example, women who were once confined to the home, often come to occupy non-traditional roles outside of the home or assume positions as heads of households during and after armed conflict. Thus, armed conflict is accompanied by a loosening of separate and distinct gender spheres that characterize patriarchal societies. For some women, this situation is forced on them because the men in their households are either killed or have disappeared and, therefore women must assume the role traditionally occupied by men for the sake of survival. Simultaneously, the loosening of gender roles provides an opportunity for some women to assert themselves in the public and political sphere. This phenomenon may result in a form of empowerment for women, who are able to enjoy greater freedom to assume positions of authority both inside and outside the home.

Even though Sri Lanka has had a relatively high level of modernization and educational equality when the armed conflict began, it was still marked by traditional patriarchal structures; in particular, male dominated socio-economic and political spheres.11 As a result, women have traditionally occupied a primarily domestic role and their identities within society have been defined by this role.

In many other contexts, the idea that male members of the house should occupy the public space and that female members of the house should occupy the domestic space, has forced women to depend on the male members to materially provide for the family. Additionally, the status of the head of the household that is automatically assigned to male family members in society enables them to exercise control over female family members and view this status as their right. Women are assigned a lesser status and therefore face unequal treatment and discrimination outside and sometimes inside the home. This unequal power relationship along with societal discrimination often leads to violence against women. This pattern can be seen within Sri Lankan society.

During the war and particularly in detention and internment camps, women were subjected to the same patterns of ill treatment as their male counterparts on the basis of their ethnicity, such as torture, extrajudicial killings, and sexual violence.12 However, discriminatory attitudes towards women were exhibited in the crimes allegedly committed and subsequently uncovered in various reports, including the OISL report.13 In particular, activists report that women faced a higher risk than their male counterparts to be subjected to sexual and gender-based violence.14 For example, various reports provide evidence that women were subjected to sexual torture on a widespread and systematic basis, alongside their male counterparts.15 However, outside of detention, in internment camps and heavily militarized zones, women were targeted for sexual and gender-based violence more than their male peers. In particular, women were being forced to provide sexual favours in exchange for government services or information. Their safety or the safety of their loved ones was also under threat.16 This pattern in Sri Lankan society is likely to exist because, “nationalistic and ethnic conflicts, which are often based on presumptions regarding ‘natural’ hierarchies, tend to view women as the ‘weaker sex’ in addition to the producers and guardians of ethnic or national heritage.”17 Thus, women are often subject to a higher risk of sexual and gender-based violence in armed conflict, not only because they are members of a particular ethnic group, but also because society views them as the weaker sex and violence against them represents an insult to the ethnicity they represent.18 Accordingly, women in the North and East not only faced vulnerabilities associated with being present during the armed conflict and being from a specific ethnic group, they also faced vulnerabilities on account of their gender.

However, discrimination and victimization is not the only aspect of women’s experience of conflict. For example, as the North and East became increasingly militarized, women took positions throughout the ranks of the Liberation Tigers of Tamil Eelam (LTTE) up to the senior organizational level.19 It is estimated that, “groups such as the Women’s Military Wing and Birds of Paradise accounted for 30 percent of the militants in the LTTE.” 20 Many note that the ability to join the ranks of the LTTE “opene[ed] up spaces of agency for women to cross private/public barriers and to assume new roles.”21 Thus, some have observed that for the women who joined the LTTE, "their role as fighters in the LTTE has provided them with the means of survival, strength, and self-empowerment, while at the same time allowing them to fight for a cause they believed in.22 As noted by G. Shanthini, “women traversed various forms of gender discrimination to join the ‘struggle’ as men did.”23 In addition to the LTTE, they joined the Eelam Revolutionary Organization of Students (EROS), Eelam National Liberation Front (EPRLF) and the Peoples Liberation Organization of Tamil Eelam (PLOTE).24

Just as striking, women additionally found spaces of empowerment in women’s collectives and grassroots organizations, which advocated on behalf of the rights of women as well as on behalf of the good of the community. These organisations chose to avoid engaging in war politics at a time when people were forced to pick sides.25 As involvement of grassroots women’s organizations in various protests and advocacy efforts posed a huge challenge to these political actors, each side to the conflict either tried to silence or co-opt their messages in order to suit their own political aims.26 Despite numerous challenges stemming from the war, these women capitalized on any space available to advance their mission which itself contributed to shifting gender roles in society.

 3. Gendered Experiences in Post-conflict Era

Yet, shifting gender roles and women’s empowerment stemming from the armed conflict has not completely erased traditional views regarding the appropriate roles of men and women in post conflict society. For example, the Women and Media Collective has observed:

"The war created a climate of insecurity, which was attributable in part to decades of militarization and the resulting breakdown of democratic norms and the rule of law. Militarization creates and boosts very stark models of masculinity and femininity and forces people into adopting extreme binary gender conforming roles. This is particularly limiting for people who do not conform to such gender roles." 27

The Women and Media Collective concluded that to the extent that men and women in Sri Lanka are not perceived as conforming to these roles, they currently face discrimination and harassment.28

This is particularly highlighted by the situation confronting 40,000-60,000 women-headed households in the former conflict zones.29 Women-headed households are reported to face a range of specific economic, physical, and psychosocial vulnerabilities. Their economic vulnerabilities are due primarily to: 1) the loss of assets during the conflict and the inability to regain assets due to discriminatory administrative laws, 2) the lack of steady, decently paid employment opportunities in a male-dominated formal economy, 3) the rising cost of living, 4) the high cost of educating children, 5) the lack of direct compensation or assistance from the government, 6) increased physical vulnerabilities, particularly, ill health, 7) the fear of leaving children alone to pursue work, and 8) the risk of sexual harassment and abuse.30 Some of these vulnerabilities are linked to the government’s consolidation of control over the former conflict zones to suppress dissent and to prevent women from taking up arms,31 while other vulnerabilities relate specifically to the structural and societal gender discrimination. Thus, serving as a breadwinner is made particularly difficult for women not only because they live in a former conflict zone, but also specifically on account of their gender. 

In a report studying the experiences of Tamil women in the post-war period, Nimmi Gowrinathan and Kate Cronin-Furman discovered that many women who leave the home for income generating activities or, even basic daily activities, routinely face sexual harassment and abuse, in part due to the pervasive military presence.32 They elaborated that the reduction in women’s agency following the disappearance of the LTTE, which categorically prohibited sexual and gender-based violence against women, put women at a higher risk of sexual and gender-based violence both by security forces as well as within the community. This has in turn fuelled extreme insecurity amongst women, increased rates of teenage marriage and pregnancy, and escalated coerced and opportunistic transactional sex work.33 Reports of violence and harassment against women have been levelled against security forces on a consistent basis.34 Within the community, reports suggest that men face increased economic and social disempowerment as a result of a highly militarized and controlled environment.35 Many men resort to alcohol to deal with their frustration, which compounds the problem of rampant sexual and gender-based violence against women within the communities.36 Additionally, the breakdown in social networks of some men, particularly those who were held in detention for longs periods of time, has contributed to their propensity to engage in intra-community sexual and gender-based violence.37

Insecurity in the North and the East is compounded by inexistent or ineffective legal redress for violence against women or for various socio-economic harms endured by women as a result of the armed conflict. With respect to violence against women, impunity of perpetrators has further entrenched the extreme reluctance of survivors of sexual and gender-based violence to report crimes committed against them by either security forces or members of their own communities. Victims are afraid of being socially stigmatized and subject to reprisals by perpetrators or the institutions meant to protect them.38 Former female combatants also fear reprisals and ostracism from their communities and therefore maintain silence about their active participation in the conflict.39

The increased risk of harassment and sexual and gender-based violence has been used by some to support the view that women should maintain domestic roles and that women who do not stay at home are seeking illicit attention. As a result, some authors have observed that the empowerment that Tamil women may have felt during the war has since vanished in the post-war period since women have been pushed back into household roles.40 Further, what may constitute well-intentioned measures to protect women, have in fact deprived women of their agency to assert themselves both inside and outside of their homes.41 This in turn reinforces discriminatory ideas that rob women of their agency to choose the lifestyle and work for which they are best suited and most aspire to.

Even though the war is over, former conflict zones remain heavily militarized, and this has in turn has left very limited space for local women’s collectives and individual advocacy.42 However, women in the North and East have continued to advocate for justice, accountability, and redress for harms stemming from the armed conflict.43 For example, women in the North mobilized to testify before the Lessons Learnt and Reconciliation Commission regarding grave crimes committed by the government and the LTTE. However, despite their bold efforts, most cases of violence against women are yet to be prosecuted and many socio-economic harms remain unaddressed.

4. The Need for Gendered Approaches to Transitional Justice

A number of conclusions can be reached from the analysis above regarding the effect gender discrimination has on patterns of violence against women in Sri Lanka, which are relevant for the structuring of each transitional justice mechanism to be gender-sensitive:

● First, to effectively address the issues that led to women’s victimization during the armed conflict and the perpetuation of victimization in the post-conflict period, transitional justice processes must not seek to return society to a place that it was in the past. To do so would re-invigorate the systemic inequalities that led to the widespread commission of sexual and gender-based violence and the deepening of socio-economic marginalization of women during and following the armed conflict. This would result in both a failure to provide adequate redress for harms done to women in the past and would re-victimize women in the post-transitional justice era.

● Second, the victimization of women has not ceased because the armed conflict has. The roots of gender discrimination date back long before hostilities began and continue into the present day. Therefore, any transitional justice mechanism that hopes to effectively uncover the causes of violence against women associated with the armed conflict, must examine broader societal issues over a longer period of time than it might for other issues.

● Third, tackling gender discrimination, which drastically exacerbated women’s vulnerabilities during and after the war, must begin with an analysis of deeply embedded cultural norms regarding masculinity and femininity. Additional factors that should be addressed by truth and reconciliation exercises include, “the rebuilding of masculine roles damaged in the violence, the re-composition of families from which the father/husband has disappeared, and the re-establishment of men’s and women’s roles when the conflict ends.”44

● Fourth, harms endured by women in the North and East as a result of the armed conflict and the causes of those harms may be more varied and complex than what transitional justice mechanisms have traditionally dealt with. Women who have been the most negatively affected by the armed conflict have overlapping vulnerabilities (such as gender, ethnicity, and socioeconomic class), may have experienced periods of victimization, empowerment, and re-victimization, and have experienced violence both from the State, as well as within their own communities. Thus, transitional justice mechanisms will not only have to examine the causes of harms using a broader scope, they will also have to examine the harms themselves with a broader scope.

● Finally, women in Sri Lanka do not speak with one voice.45 Not only do their experiences vary across time and place, but also their responses towards their experiences and their ideas of justice are equally varied. For example, some women prefer to stay silent with respect to their experiences, whereas others would prefer to voice their experiences to a wider audience. Therefore, responding to their needs will require each mechanism to take an inclusive and flexible approach. This can only be attained with consistent and continuous input in the design and implementation of transitional justice mechanisms from survivors of violence themselves as well as their representatives and trained gender specialists.

5. Conclusion

Due to gender discrimination stemming from biased gender norms, women in the North and East have endured considerable hardships. However, in spite of these hardships, they have operated within the very little space that they have had with ingenuity and perseverance. Not only do they have much to gain from transitional justice mechanisms, their viewpoints have much to add to a successful transitional justice process. Given the challenges that lie ahead for the transitional justice process in Sri Lanka, their opinions and their cooperation in transitional justice mechanisms are essential for them to accomplish their goals. The following section explores a number of best practices and recommendations for each individual mechanism that will aid it in facilitating women’s participation.

B. International Standards and Best Practices for Gender-sensitive Transitional Justice Policies
1. Introduction

In order to tackle the concerns discussed above, reference must be made to international law, standards, and best practices. First, this section reviews the international legal framework applicable to the government’s obligations to address women’s inequality in transitional justice mechanisms. It then moves towards an examination of overarching best practices applicable to each transitional justice mechanism.

2. International Law

International human rights law provides the legal basis for transitional justice mechanisms and establishes the rights of women vis-a-vis such transitional justice mechanisms. First and foremost, under international human rights law, the State must:

1. Take reasonable steps to prevent human rights violations,
2. Conduct good faith investigations of alleged violations,
3. Impose suitable sanctions on those responsible for the violations, and
4. Ensure reparations for the victim of the violations.46

With respect to each of the above, the State must undertake these obligations in a way that ensures women’s human right to equality and non-discrimination, as enshrined in numerous human rights instruments to which Sri Lanka is a party, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 1 of CEDAW establishes that discrimination against women refers to “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”47 Inherent in this definition is the idea that even if a law or policy is not intended to discriminate against women, if the law or policy has the effect of denying women of their rights, then it also violates the right to be free from discrimination.48

Additionally implicit in Article 1 of CEDAW is women’s right to equality. This means that the State must take positive measures towards achieving equality of the sexes within its society. In doing so, the State must take into account “the ways in which women are different from men, and ensuring that these differences are acknowledged and responded to by State measures towards achieving equality.”49 Thus, to the extent that transitional justice mechanisms or the lack of access to these mechanisms deny women of their fundamental rights, whether intentional or not, they violate Sri Lanka’s obligation to refrain from discriminating against women.

3. Best Practices

 International best practices echo and operationalize the above legal rules and principles.50 International best practices have been developed over the years from practices in transitional societies around the globe. Karolin Leentvaar & David Taylor found the following to consist of international best practices with respect to gender-sensitivity and transitional justice mechanisms:

● The integration of specific concerns, needs and experiences of men and women in the design and implementation of transitional justice mechanisms, which requires the recognition of types of violations beyond civil and political rights, such as economic, social and cultural rights.51

● The equal and meaningful participation of men and women in transitional justice processes,

● The treatment of men and women as two heterogeneous groups by paying attention to other aspects of identity, including ethnic, socio-economic or religious backgrounds, age, and sexuality; and

● The analysis of the construction of gender roles in society to allow for a transformation, which includes tackling the root causes of gender-based violence. In its guide on transitional justice, UN Women indicates that “transformative justice seeks to address not just the consequences of violations committed during conflict but the social relationships that enabled these violations in the first place, and this includes the correction of unequal gendered power relations in society.”52

The authors point out that each of the above best practices must be sustained and systematized throughout the work of each mechanism.

To aid in putting laws and principles into practice, UN Women has outlined a framework of key elements to consider while implementing institutional reform and while designing new institutions to be gender-sensitive, these elements include:

• Normative Elements:

o Does the formal mandate of the institution include crimes against women as a matter of core concern?

• Procedural Elements:

o Incentives: Does the staff of transitional justice institutions have adequate incentives to respond to gender issues?53

o Performance measures and review: Are new expectations that transitional justice mechanisms will address crimes against women backed up with changes in the ways individual and institutional performances are reviewed and assessed?

o Removing barriers and improving access: Are adequate steps taken to remove practical obstacles that women may face in accessing transitional justice? To remove these barriers to access, transitional justice institutions and processes must compensate women for the costs they must bear due to their participation (i.e., use local languages, pay travel expenses, provide child care), and they must provide protection from backlash and stigmatization (i.e., in camera hearings, investment in attitudinal change in order to prevent ostracism).

o Culture and attitudes: Are efforts made to address gender bias in the institution itself? This can be achieved in part by recruiting women at all levels and ensuring that they are not simply a token minority. This, however, is just a first step and more needs to be done in order to foster long-term attitudinal change about women’s rights, often involving training and exposure to women’s experiences of discrimination. 

C. Guiding Principles for Gender-sensitive Transitional Justice Policies

Two principles, which have been consistently reaffirmed and emphasized in the international literature, are worth emphasizing in this report. First, the principle of inclusivity, wherein the active participation of all groups in society, including women, is considered to be the key to a successful transition to peace. For example, in-depth research conducted by UN Women in its High-Level Review on Women, Peace and Security has shown that women’s participation is linked to the sustainability of peace processes.55 In her keynote address at the UN Peace Building Commission Annual Session in 2016, Dr. Radhika Coomaraswamy commented on this finding by emphasizing that:

The success to all kinds of peacemaking, peacekeeping and peace building is active participation of all groups in society so that communities as a whole have ownership in the peace process...Though women as of right should be at the table, these arguments also buttress the claim that inclusivity is the clue to long lasting peace. Peace processes that have been concluded all over the world point to this factor.56

In so far as transitional justice mechanisms are implemented to foster sustainable peace in Sri Lanka, the government needs to ensure the inclusion of women at the table in the design of transitional justice mechanisms as well as ensure that women are equal beneficiaries of transitional justice efforts in order for these mechanisms to contribute fully to sustainable peace.

Second, the adoption of policies and processes in order to suit local conditions or comply with budgetary constraints ought not to be privileged above women’s fundamental rights. For example, according to Sirkku K. Hellsten:

"In order for transitional justice to achieve its supposed goal of social justice, the idea that women’s rights should always yield to other values needs to be abandoned. Instead, transitional justice mechanisms should acknowledge the fact that women are often disproportionately affected by conflict, and put women’s rights at the forefront of efforts to build a more peaceful future." 57

Thus, gender-responsiveness cannot be considered a negotiable aspect of transitional justice mechanisms and must take precedence both in localizing mechanisms as well as allocating budgets.

The following principles were also highlighted in local consultations as being essential to the transitional justice process:

● Women seek transformative justice, beyond transitional justice. They see transitional justice as a long-term process of political, economic, social and cultural transformation.

● Transitional justice must look beyond war-related atrocities to create unity and equality.

● Transitional justice should create social transformation by addressing structural inequalities (including the culture of impunity for violence against women and immunity of men in power) and traditional disparities.

● Although transitional justice is often reduced to political, constitutional and legal reforms, women seek social reforms. Social justice acknowledges the multiple truths of the conflict.

● At every level of each transitional justice mechanism, women should be given equal opportunities in decision-making processes, ensuring that their participation is not reduced to the symbolic expression of concerns (or victimhood), especially in male-dominated settings.

● In order to meet human rights obligations, all transitional justice processes must include mechanisms that are accessible to both men and women. Such mechanisms must pay attention to gendered power relations and differences, which may discourage women from voicing their concerns or lodging complaints.

● While devising transitional justice mechanisms, the State must be mindful of the heterogeneity of women’s experiences of armed conflict and consider the intersectionality of gender, race, caste, religion, region, class etc. and the varying levels of influence each of these factors could play.

● Women are victims of all forms of violence and crimes, not only sexual violence. Overemphasizing wartime sexual violence risks ignoring those women who suffered mass atrocities apart from rape.

 ● All mechanisms should be adequately funded and staffed. Victims and witnesses must be able to receive adequate and timely access to quality professional psychological and medical treatment as well as counselling services, either internally or through referral procedures.

The above overarching principles should consistently guide the work of each transitional justice mechanism when deciding the appropriate approaches and responses to gender issues that arise in the course of each mechanism’s work.

D. Conclusion

Although incorporating international legal norms, principles, and best practices constitutes an additional layer of complexity for the transitional justice process in Sri Lanka, failure to utilize this overarching framework from the very beginning of the planning process will hinder any efforts to implement a gender-sensitive approach moving forward.

V. Gendered Aspects of Transitional Justice Mechanisms

A. The Office on Missing Persons
1. Introduction

The Office on Missing Persons (OMP) was set up to clarify over 16,000 cases of disappeared and missing persons many of which stem from the conflict and have been left unresolved by prior government investigations. However, in order to successfully complete its mandate, the OMP will need to take a gender-sensitive approach in a) tracing individuals, b) identifying avenues of redress, and c) providing recommendations for non-recurrence. Sri Lanka’s women survivors have faced significant emotional, economic, and legal hardship in the wake of the loss of their loved ones, and this has had a profound effect on all aspects of their lives. It is important for the OMP to understand the experience of these survivors, as they will be the primary beneficiaries of the OMP’s work in tracing missing persons, in identifying avenues for redress, and in devising recommendations for non-recurrence.

This chapter proceeds by, first, looking at the context in which the OMP is meant to operate, then, by providing an overview of the OMP’s purpose and functions, and lastly, by providing recommendations specific to the structure and work of the OMP which derive from local consultations, as well as international best practices and lessons learned.

2. Sri Lanka’s Missing and Disappeared Persons and Those who Search

Of the tens of thousands of Sri Lankans whose fate and whereabouts are unknown, the International Committee of the Red Cross (ICRC) estimates that 91% are male, whereas 7% of missing adults and 24% of missing minors are female.59 Although no community within Sri Lanka has been left completely untouched, the greatest number of missing and disappeared persons originates from the North and East of the country. Disappearances were used on a widespread scale by the Sri Lanka military as well as various non-state armed groups.60 As the majority of fighters in the war were male, the majority of those who went missing in action or disappeared were male. Most of the men who went missing or disappeared were married and the primary breadwinners of their family, whereas many others were in line to become the primary breadwinners.61 As a result, the majority of the next of kin are women and children.

The mental health effects of an “ambiguous loss,” such as when a relative goes missing, are very profound. Survivors are often left vacillating between hope and despair and are usually left in social, legal, and financial limbo. Those who face ambiguous loss often suffer from lifelong depression, anxiety, and post-traumatic stress disorder and require comprehensive psychosocial assistance to manage the trauma.62 The ICRC, in a study conducted about Sri Lanka’s missing and disappeared persons, reported that a significant number of the wives of missing persons in Sri Lanka are suffering from these conditions. As a result, many will need comprehensive psychosocial support to come to terms with the events that caused their trauma, even after the completion of clarification of their particular case.63

Further, women’s emotional suffering has been compounded by social isolation. In a number of communities surveyed by the ICRC, the wives of missing and disappeared persons are not considered married, widowed, or divorced.64 When women’s social status is defined by their relationship to the men in their lives and to the institution of the family, the uncertainty in their relationships “in some cases hinders both the definition of these women socially and legally, and their struggle to define their own identity.”65 Many women reported that their characters are questioned in their communities, with rumours being spread to tarnish their reputations.66 In other communities, the wives of missing and disappeared persons are typically perceived by the community as widows who bring bad luck to those around them.67 As a result, many women have chosen to remain silent about their situation and thus experience extreme social and emotional isolation at a time when they would require community support the most.68

In addition, many women reported facing extreme economic difficulties following the disappearance, which included significant costs associated with searching for their loved one, as well as assuming the role of head of the household in order to care for their families.69 Many of the women, who entered the workforce for the first time, had received little education or formal training to prepare them for gainful employment.70 As a result, many have had to take extremely low-paying jobs. This has increased their risk of being exploited. Left with few economic options and a legal and administrative system biased against them, many women were originally forced to file for death certificates in order to access bank accounts, collect insurance, register children in school, and assume authority over family property, whether or not they believed or had evidence that their loved one was deceased.71

In spite of these difficulties, women have been at the forefront in the search for Sri Lanka’s missing and disappeared person, both at great risk to themselves and in the face of callous and ineffective government institutions. Many of the women, who led the search for their missing family members, reported facing complete apathy or abuse at the hands of authorities tasked with investigating their case.72 Harassment and abuse against women came in the form of constant surveillance, unannounced visits during irregular hours by men claiming to be security forces, and coercive demands by government officials for money or sexual favours in exchange for information of their missing loved one, which subsequently never came.73

Although Sri Lanka has had at least eleven prior ad hoc government agencies and commissions of inquiry tasked with investigating widespread disappearances and the fate of those missing in action, many survivors receive little to no answer regarding the fate or whereabouts of their relative or compensation for violation of their rights. As a result, many victims have been left extremely disillusioned and distrustful of government efforts to investigate their relatives’ disappearances.

3. The Proposed Office on Missing Persons

 The current administration has taken a number of important steps in providing relief to the families of missing and disappeared persons, such as providing certificates of absence, initiating a psycho-social task force,74 inviting the Working Group on Enforced Disappearances to visit Sri Lanka, ratifying the International Convention for the Protection of All Persons from Enforced Disappearances, and finally, adopting legislation to establish the OMP. However, the government must continue to demonstrate progress in providing full redress to families by ascertaining the fate and whereabouts of missing persons and ensuring non-recurrence. The proposed Office on Missing Persons will be instrumental in achieving these goals.

On 11 August 2016, Parliament enacted legislation to establish the Office on Missing Persons. The legislation outlines four main functions for the OMP:75 1) to search and trace missing persons, 2) to clarify the circumstances in which such persons went missing and their fate, 3) to make recommendations to the relevant authorities in order to reduce incidents of missing and disappeared persons, and 4) to identify proper avenues of redress. Under the Act, a “missing person” means “a person whose fate or whereabouts are reasonably believed to be unknown and which person is reasonably believed to be unaccounted for and missing i) in the
course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces or its aftermath, or is a member of the armed forces or police who is identified as “missing in action;” or ii) in connection with political unrest or civil disturbances; or iii) as an enforced disappearance as defined in the ‘International Convention on Enforced Disappearances.’”76

The seven members of the OMP who will be appointed by the President upon recommendation of the Constitutional Council, are meant to be independent individuals with expertise in a number of relevant areas, including human rights, international humanitarian law, and fact-finding.77 For purposes of the Penal Code, the Bribery Act, and the Evidence Ordinance, the members are considered “civil servants,” and are to reflect the “pluralistic nature” of Sri Lankan society.78 Members are removable on a number of enumerated bases in the Act, including, if they are found to have a “conflict of interest” or if they are convicted of an offence involving “moral turpitude.”79

The legislation specifically establishes a Tracing Unit and Witness and Victim Protection Division. The Tracing Unit is responsible for tracing and searching for missing persons and for assisting in clarifying the circumstances of a disappearance, and the whereabouts and fate of a missing person.80 The Witness and Victim Protection Division will be authorized to provide administrative and welfare services, including psychosocial support for victims, witnesses and the relatives of missing persons.81 The Division is also authorized to coordinate with other law enforcement agencies where it deems it necessary to protect victims and witnesses.82 Additionally, the OMP has the discretion to establish other units or divisions to provide for the necessary expertise and technical assistance required to investigate cases.83 Further, the OMP is empowered to issue policies and guidelines, from time to time, notably gender-sensitive policies.84

The OMP may receive submissions from any person, or organization.85 Additionally, the OMP is mandated to collate data related to missing persons from any current and prior investigations that have been carried out with respect to an individual case.86 In order to carry out its tracing functions, the OMP will have broad powers of investigation including: examining witnesses,87 issuing summons,88 conducting searches of suspected places of detention,89 and, after obtaining a search warrant, any other premises90 including police stations, prisons, or military installations.

The OMP is supposed to keep families informed during and at the conclusion of the Office’s investigations,91 to make recommendations to the relevant authorities for the prevention of future disappearances based on patterns identified in its work,92 and to identify avenues for redress to which missing persons and their families are entitled.93 In this respect, where it appears to the OMP that a criminal offence has been committed that warrants investigation, the OMP may report the case to law enforcement authorities, after consultation with the relatives, as it deems fit, and in the best interests of the victims, relatives, and society.94 The OMP may also refer witnesses to law enforcement subject to the requirement of confidentiality.95 Additionally, the family of the missing person, on its own initiative, may refer the OMP’s findings to a law enforcement authority for further investigation of wrongdoing for the purposes of criminal liability.96

If the OMP reaches its full potential, it will serve as an incredibly powerful tool to address one of the most widespread and devastating aspects of the armed conflict, particularly for women survivors. In a study about Sri Lanka’s missing and disappeared persons, the ICRC found that the families of missing and disappeared persons prioritized the need to know the fate and whereabouts of their loved ones, as well as the circumstances related to their disappearance, above all other forms of redress.97 This illustrates the importance of the OMP’s mission in addressing the harms most deeply felt by women as a result of the war. Fulfilling the needs of the many thousands of victims will be a monumental task for the OMP, and its only hope for doing this successfully is through continuous consultations and coordination with women survivors, who have led the search for Sri Lanka’s disappeared and missing persons for decades, even under the most difficult of circumstances.

4. Best Practices and Recommendations

According to the International Center for Transitional Justice, no truth-seeking mechanism in a transitional society has adopted a fully gender-sensitive approach in its investigations to date.98 It is therefore paramount that the Office adopts a comprehensive gender policy for all aspects of its work. This will include: ensuring that staffing and recruitment policies are gender-responsive, removing obstacles of access for women, implementing a robust outreach program, providing sufficient support services geared towards women’s specific needs, identifying avenues of redress through a gender lens, and providing recommendations for non-recurrence that are gender-sensitive. Each of these aspects will be analysed in turn below. As international practice cannot provide a perfect model in this respect, the OMP will need to facilitate adequate internal expertise on gender-sensitivity and continuously engage in consultations with survivors to ensure that its operations are gender-sensitive throughout its functioning. 

a) Gendered Approaches to Facilitate Access to the Office

(1) Recruitment and Staff Policies

On the whole, a gender perspective is more easily implemented in the OMP if women are not only the beneficiaries of OMP services, but also serve as OMP members and staff.

- Recruitment

Under Section 4(2) of the OMP, the President, upon recommendations from the Constitutional Council, is empowered to appoint members who are uniquely qualified to conduct investigations into the fate of missing persons and who reflect the pluralistic nature of Sri Lankan society.99 As with other transitional justice mechanisms, the President and Constitutional Council should also have due regard to achieving gender parity amongst OMP members. A greater female presence, although not guaranteed to provide complete gender-sensitivity among members, has been shown to facilitate greater female participation in transitional justice mechanisms in other transitional contexts.100

Further, under Section 11(d) of the OMP Act, the Office is empowered to appoint and dismiss staff and consultants or to request secondment of public officers to the OMP.101 In execution of this provision, the OMP should comply with the principles of equality and non-discrimination in each of its recruitment practices.102 This is most effectively accomplished if gender is one aspect that governs the overall staff recruitment process. Gender can be mainstreamed in the recruitment process through the implementation of recruitment schemes or overarching principles to guide the Office’s hiring practices.103 However, it should be noted that taking a rigid approach to gender equality within certain divisions of the Office may be counterproductive insofar as there are fewer women in certain professions due to various socio-cultural factors.104 Thus, the Office should recruit with the goal of advancing women’s equality in the workplace, yet ensure that all staff is indeed qualified to contribute to the mission of the OMP. Therefore, some measure of discretion is needed to balance these factors in recruitment schemes and overarching principles.

- Vetting Procedures

As some individuals, who may serve as potential candidates, have been the subject of complaints for harassment of women, all potential candidates should be thoroughly vetted to ensure that they are free of serious criminal records and allegations of human rights violations relating to the treatment of women, particularly allegations of sexual bribery. Failure to successfully vet potential recruits will not only put women who interact with the Office at risk, it will also discourage their participation for fear of further reprisals and harassment in connection with the individual in question. However, as specified in Operationalizing the Office of Missing Persons: Manual of Best Practices (the OMP Manual) by SACLS, "Officers should also be mindful of cases where individuals may have been arrested or imprisoned due to political or other improper motives. It is imperative for the Office to keep these realities in mind when implementing its vetting procedures to ensure that individuals, who have been dealt with unjustly in the past, are given a fair opportunity of working with the OMP."105

Therefore, the Office should establish clear, independent, and impartial criteria for vetting its personnel. One method to ensure appropriate oversight of the vetting process is to set up a Panel to assess the seriousness and credibility of any allegations against potential candidates.

- Code of Conduct

Even with an effective vetting procedure, the OMP must ensure that staff members continuously act with integrity and empathy toward the women with whom they will necessarily interact on a day-to-day basis.

Section 14 and section 16(3) of the OMP Act broadly regulate staff conduct, such as prohibiting discrimination as well as threatening, intimidating, and improperly influencing any person who has interacted or intends to interact with the OMP.106 Although these provisions provide a broad framework to guide staff conduct, an additional code of conduct should be implemented to delineate how the OMP staff ought to interact on a day-to-day basis with female staff members and female survivors and witnesses.107 This code of conduct should be made public and translated into the three national languages.

In writing a code of conduct, it is appropriate to consider the values and principles that generally govern the work of truth commissions, such as human dignity, independence, impartiality, integrity and professionalism.108 Past mechanisms have been accused of dealing with female survivors and witnesses with insensitivity and rudeness.109 Therefore, a code of conduct should contain standards that specifically establish that employees are expected to treat women with respect and sensitivity in recognition of all that they have been through in the search for their loved ones.

Included in this code of conduct should also be a written sexual harassment policy, which unequivocally prohibits sexual harassment of female staff members and female family members, and prohibits behaviour such as:110

- uninvited touching
- uninvited kissing or embracing
- inappropriately making jokes or comments
- making promises or threats in return for sexual favours
- displaying sexually graphic material
- repeatedly offering invitations to go out after prior refusal
- exposing genitals or sexual gestures
- insulting, taunting, teasing or name-calling of a sexual nature
- staring or leering at a person or at parts of their body
- unwelcome physical contact such as massaging a person without invitation, deliberately brushing up against them or forcing a person to perform sexual acts
- touching or fiddling with a person’s clothing including lifting up skirts or shirts, flicking bra straps, or putting hands in a person’s pocket
- requesting sex
- engaging in unwanted sexually explicit conversations
- persistently asking or insinuating about a person’s private life
- making offensive phone calls or writing offensive letters or emails
- stalking

Further, this code of conduct must include procedures to address any serious allegations of mistreatment, such as those levelled against prior commissions of inquiry, where officers asked female relatives of missing persons for bribes (including sexual favours) to gain access to information regarding their missing relatives. To the extent that there are allegations that a staff member has not complied with this code of conduct or the sexual harassment policy, there should be a complaint mechanism where female staff members or female victims or witnesses can file a complaint.111 All complaints should be treated in a sensitive, fair, timely and confidential manner.112 If the allegations are substantiated, then immediate corrective action should be taken, which may include the removal of the offending staff member from office.113 This complaint procedure can be situated either in a specific gender unit or in an oversight committee.114

- Training

Experiences in Sierra Leone, Ghana, Liberia and Timor-Leste have indicated that transitional justice mechanisms cannot rely alone on overarching policy guidelines to achieve gender sensitivity in their work.115 Thus, a staff training program to complement the Office’s code of conduct and sexual harassment policy is essential to ensure continuous and robust gender-sensitivity throughout the OMP’s divisions.116 This entails there be periodic trainings to ensure that gender-sensitivity does not fade after an initial training push.117

In addition to informing staff members of the code of conduct and sexual harassment policy, the Office should also offer trainings “on issues, strategies, approaches, and specific differences stemming from women’s status in society or inherent characteristics.”118 Training specifically for investigators and statement-takers should include strategies that they can employ to build trust with female victims and witnesses, which will encourage cooperation with investigations.119

Gender-sensitivity trainings can be designed and coordinated either through an agreement with an external training provider (such as an international organization) or through an in-house unit, such as a gender unit.

(2) Establishment of a Gender Unit

Under Section 11(e) of the OMP Act, the OMP may establish Committees, Divisions and/or Units as required for effective administration and functioning. Under this provision, the Office should consider establishing a gender unit to oversee and coordinate gender aspects of the OMP’s work.

The gender unit could assist in the design of gender-sensitive policies and practices, oversee staff trainings, and review complaints, as recommended above.120 The gender unit could also take the lead on establishing linkages with civil society organizations that address gender-related issues, such as women’s organizations, as was done by the gender unit of the Peruvian Truth Commission.121

Alternatively, the Office could take the approach of the Liberian Truth Commission, which established a gender committee composed of representatives from local and international non-governmental organizations, the United Nations, and the Liberian Ministry of Gender, which was responsible for reaching out to Liberian women.”122

However, if the Office does create a unit or committee specifically to address gender aspects of the Office’s functioning, it must ensure that all other units still use a gender-sensitive approach in their operations as well.123 Therefore, even if a gender unit is created and entrusted with the primary responsibility of planning, overseeing, and coordinating a gender-specific program, gender-sensitivity must remain a mainstreamed element throughout the work of each of the Office’s units.

Further, if a gender unit is created, the Office should ensure that the appointments to the unit reflect diversity and gender parity. Typically, women are predominantly the ones appointed to deal with gender issues in transitional justice mechanisms.124 While the female perspective is essential for gender analysis, so is the male perspective. Therefore, gender parity in appointments is just as applicable in the gender unit as it is in the OMP as a whole.

(3) Outreach Program

Under section 13(1)(j) of the OMP Act, the office is empowered to take appropriate steps to create public awareness of the causes, incidence and effects of missing persons. However, the Affected Families Forum observed that nearly 90% of families with whom it has worked were unaware of the OMP or its mandate.125 According to international best practice, the OMP should “employ all measures necessary to ensure that women have knowledge, including with respect to procedures on how to request information.”126 Women in the North and East have expressed a general reluctance to engage with government mechanisms due to negative experiences in the past. Thus, the Office will need to adopt a gender-specific outreach program aimed at informing the public of the Office’s functions and how it can access its services. Outreach efforts should be sensitive to women’s negative experiences with government mechanisms in the past. The outreach program must resort to techniques that particularly target women who may or may not be reluctant to engage with the OMP.127

Usually cited as the most innovative outreach unit, the outreach unit in the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) systematically undertook a range of outreach efforts, such as distributing videos on the Commission’s work in rural communities, publishing materials to raise awareness, and convening discussion forums on the Commission’s work.128 CAVR specifically targeted women by liaising with women’s groups in various parts of the country and publishing articles in the media stressing the importance of women’s participation in the CAVR’s processes.129 This underlines the importance of a multi-strategy outreach program in areas where most affected women live. This outreach program should use various means of communication. The most efficient way of coordinating these efforts would be through extensive cooperation with women’s groups throughout the island. Women’s groups will be able to recommend outreach strategies and help build bridges between the work of the OMP and local communities who tend to be distrustful of government agencies.

Jo Baker, writing specifically on lessons learnt regarding gender-sensitivity within the Lessons Learned and Reconciliation Commission (LLRC), notes that outreach:

"Should offer reassurance that the process is safe and sensitive, let them [women] know what will be expected of them, and very importantly – what they can ultimately expect themselves. This should involve information about evidentiary thresholds and how to write an adequate application (as recommended by the UN Panel, which cited the LLRC’s lack of Tamil language forms as evidence of its ‘basic modalities’). NGOs have also condemned proceedings as ‘neither safe nor gender-sensitive’, and have highlighted inadequate Tamil translation and a bias toward hearing (male) community leaders. Past recommendations such as those from the World Bank and ICTJ, have included the wider use of community networks, which Tamil women are more likely to encounter, trust and understand, advertisements in local dialects in publications and programmes commonly read and watched by minority women, along with the use of NGO-run workshops – rather than, for example, using a government mouthpiece."130

Finally, the outreach program should also include a campaign to reduce the stigma attached to the families of missing and disappeared persons. One potential strategy would be to build on existing family and community programs (e.g. youth forums, community centres, couple and family counselling). This outreach strategy should be designed taking into account the particular context and cultural sensitivities, as well as local gender dynamics within that specific community.131 “This approach would provide opportunities to talk and share experiences and could be supported by community-based psychosocial counsellors,” thereby linking two important functions of the OMP.132

b) Gendered Approaches to the Provision of Support

(1) Psychosocial Support

The OMP Act specifically requires that the OMP shall provide or facilitate psychosocial support to families of missing persons.133 Psychosocial support provided specifically to female victims and witnesses before, during and after their engagement with the OMP is a crucial aspect of fulfilling the OMP’s mandate of identifying avenues of redress for victims.134 In many transitional contexts, even where there are psychosocial support programs these tend to be overly medicalised, gender-insensitive, and based in hospitals or mental health facilities that local communities are reluctant to use.135 Research in other transitional contexts has shown that the few women who have utilized psychosocial services are often those suffering from the most severe types of mental illness.136 Thus, services have often failed to support the vast majority of women who face on-going psychosocial distress.137 “These deficits carry potentially high costs, as they hinder the reconstruction of the social fabric after years of stress and trauma, and prohibit the emergence of more egalitarian and empathetic gender relations.”138 Therefore, it will be crucial that the OMP learn from these programs and use gender-sensitive techniques in designing its psychosocial support programs to be accessible, meaningful, and sensitive to women.

At a baseline, all support provided to women must be guided by a survivor-centred approach where “the interest of the survivor and respect for her or his decisions is of primary importance.”139 The affected women’s interest is best discovered through consultations with the women concerned and should always be subject to their consent, in compliance with applicable medical ethics. Further, support should be given on the basis of the guiding principles of doctor-patient confidentiality, safety and security, respect and non-discrimination.140

Experience in other contexts has also highlighted the importance of approaching the psycho-social support of women in a holistic manner which addresses the total challenges that women face as a result of the disappearance of their loved one. For example, in 2010, the ICRC, in partnership with a grassroots organization and an INGO specialized in micro-economic development, launched a pilot project in the Bardya District of Nepal to comprehensively address the psychological distress and social difficulties of 251 wives and mothers of missing persons.141 The ICRC utilized the concept of peer support groups at its core. The project focused on emotional, cultural and religious issues and addressed legal, economic and community support needs.142 The evaluation of the project's outcome showed statistically significant improvement of the families' psychosocial well-being.143 This was evidenced by a decrease of symptoms relating to anxiety, depression and psychosomatic pains and by an improvement of their daily functionality.

Finally, the provision of psychosocial support needs to be robust, holistic, and long term. It is therefore important that there is an efficient and effective referral system. This referral system should be able to link women to mental health service providers for further appropriate professional assistance.144

(2) Victim and Witness Protection

Although the government has recently passed a Victim and Witness Protection Act (VAWP Act), this Act does may not explicitly apply to individuals who appear before the OMP.145 As women have shown a reluctance to participate in government truth-seeking mechanisms due to harassment, reprisals, stigma, and intimidation, robust victim and witness protection measures are needed to ensure that women participate before the OMP.

The OMP Act specifically provides that all victims and witnesses who engage with the Office are entitled to protection.146 This provision will include all women who engage with the OMP. However, to further ensure that women feel secure enough to participate; protection should be afforded to their vulnerable relatives and to other individuals of importance to them who may also face a threat in connection with their claims before the OMP.147

Further, in order to effectively provide protection for the specific threats that women are likely to face, the Office will need to establish criteria for assessing the threat. The OMP Manual indicates that common criteria considered in threat assessments include:148

1. The existence of a threat to the victim’s or witness’ life and/or property, and
2. The foreseeability of acts of reprisal or intimidation, or the fact that acts of reprisals or intimidation have already been carried out against the victim or witness,
3. The victim or witness’ personality, personal situation and psychological fitness to receive protection, and
4. The seriousness of the offence to which the victims or witness’ statement or evidence relates.

It is important that the OMP interprets these common criteria taking into consideration the specific security challenges that women face. For example, the first criteria should include the existence of a threat of serious bodily harm, including sexual and gender-based violence, and sexual harassment. In the assessment of the second and third criteria, the assessor must be careful to avoid discriminatory attitudes that affect his/her perception of the accuracy of a woman’s claim that she is subject to a foreseeable threat. Further, an assessment must take into account the types of threats women are more likely to be exposed to. For example, specific protection should be foreseen for women who have an increased risk of additional violence as a result of being widows or head of the household.149

c) Gendered Approaches to the Identification of Avenues for Redress

Section 10(d) establishes that the Office must: a) identify avenues for redress of which missing persons and relatives of missing persons are entitled, and b) inform the missing person (if found alive) or the relative of the missing person of the redress that the Office has identified. In order to do so in a manner that is gender-sensitive the Office must: 1. understand the nature of the violations that missing and disappeared women have suffered and 2. understand the broader type of harms women suffer as a result of the disappearance of a relative.

The Office must adopt a gendered approach to its tracing activities in order to understand the nature of the violations that missing and disappeared women have suffered and to make recommendation for redress appropriately on this basis. Using a gender-neutral approach in tracing activities, for example, during the examination of remains, may result in the failure to investigate for signs of sexual and gender-based violence.150 This has caused underreporting of sexual and gender-based crimes in other contexts.151 As these details constitute part of a victim’s right to know and are crucial in determining proper redress, a gender-neutral approach to investigating the fate of a missing person will likely fail to provide an accurate picture for either of these purposes.

The Office will similarly need to take a gender-sensitive approach to understand the broader type of harms that women have suffered as a result of the disappearance of a relative. This would require looking at harms that stem from disappearances including, but not limited to, physical harms. The Office must therefore look at harms women may have suffered due to societal discrimination and the specific instances of violence women have faced as a result of searching for a missing person. This is in recognition that women relatives of missing persons, who are also considered direct victims under International Human Rights Law (IHRL) and International Humanitarian Law (IHL) in addition to the missing or disappeared individual, are particularly vulnerable legally, economically, and emotionally.152 Thus, effective avenues for redress catering to women survivors will seek to address the multi-faceted nature of the harm that women endured, beyond the physical harm, and provide multiple forms of redress.153 Thus, in addition to clarifying cases, the OMP must adequately reflect the complexity of the harm for each victim in order to recommend adequate redress to the Office on Reparations. Associated harms include harassment, intimidation, and arbitrary or unlawful detention.154 This will also include an investigation of abuses committed against the family of missing and disappeared persons who were searching for their relatives and inclusion of this information when making recommendations for reparations and when making referrals to the judicial branch for criminal accountability.155

As will be discussed in great detail in the chapter on the Office on Reparations below, avenues for redress will likely relate to social programs that go beyond medical and psychosocial support, and which also provide much needed economic assistance catered to the individual needs of the particular women entitled to redress.156 Avenues for redress should include job training for women who are able to work, which is not based on gender stereotypes of the appropriate work for women. Additionally, pensions, which are on par with the pension afforded to men, should be provided to elderly women, as well as women who are unable to work. Avenues for redress for girls of school age should include educational assistance. Further, given the structural discrimination that hinders women’s ability to manoeuvre in legal and administrative spheres, avenues for redress must also facilitate the clarification of the legal and administrative status of women in both the public and private sectors.157 Finally, avenues for redress for women who were forced to give bribes (including sexual favours) in exchange for information regarding the whereabouts of their missing family members should include the return of sums paid to the official concerned.158

d) Gendered Approaches to Recommendations for Non-Recurrence

Under Section 13(k) of the OMP Act, the OMP must make recommendations to the relevant authorities related to:

1. the prevention of future disappearances, based on patterns identified in the course of the work of the OMP;
2. the means and methods of commemoration and acknowledgment; iii. the handling of unidentifiable remains and identifiable remains,
3. the handling of cases in which either circumstances or whereabouts of missing persons cannot be clarified,
4. the publishing of information on issues of missing persons for public knowledge with due consideration to all relevant laws pertaining to confidentiality and protection of data;
5. the development of national laws and regulations related to missing persons; and
6. reparations, psycho-social support and other means to improve social and economic conditions of victims and relatives of missing persons. The OMP’s recommendations ought not to be limited to individual cases.

In order to devise recommendations for the purpose of non-recurrence, the OMP will need to adopt a gender-sensitive approach. When specifically investigating enforced disappearances, “a gender-sensitive approach would promote understanding why women were disappeared, the range of crimes they experienced while disappeared, and the gender-specific challenges they face when trying to obtain the truth about disappeared relatives.”159 The OMP will therefore need to understand the impact of gender on different aspects of a case in order to make recommendations for non-recurrence.

Of particular importance, the Office will need to develop techniques to identify patterns of violations, which are unique to women who either went missing or were disappeared. For example, women often disappear for different reasons than men, and are subject to different patterns of abuse while they are missing. For example, women are sometimes targeted because they have witnessed violations, are associated with certain men, or because they subvert gender norms through activism.160 Using a gender-neutral approach to analyse patterns of violations may lead to the misidentification of the causes of women’s disappearances.161 Similarly, the Office should investigate, compile, and analyse patterns related to the harms women faced while searching for their missing relative.162

5. Conclusion

In light of the above analysis and the challenges that lie ahead, the OMP will need to develop a comprehensive gender strategy for its investigations and working methods in order to successfully carry out its mandate in a manner that provides adequate redress for its primary beneficiaries: women. If the OMP is to move from a lofty but ineffective government body to one that meets the needs of the families of missing and disappeared persons, the advice of and consultation with women survivors will be required throughout the implementation of its mandate.

B. Commission for Truth, Justice, Reconciliation, and Non-Recurrence
1. Introduction

The proposed Commission for Truth, Justice, Reconciliation, and Non-Recurrence will serve a truth-telling function, as such it will be mandated to look at all aspects of the conflict, including patterns of abuse and the social, political, and economic causes of the conflict. In this way, it can serve as a powerful tool to identify systemic discrimination against women that has led to various wartime and post-conflict abuses. This chapter first looks at Sri Lanka’s history of truth telling and gender, before describing the state of progress with respect to the design of the proposed Commission. Finally, this chapter explores best practices that are applicable to gender-sensitivity in a truth commission’s work.

2. Sri Lankan History of Truth-Telling and Gender

The idea of a truth and reconciliation commission of the sort proposed in the HRC 30/1 resolution is not a new concept in Sri Lanka. The concept of such a mechanism has been part of the national agenda for quite some time. Several of these mechanisms tasked with investigating different aspects of the armed conflict were created in the past. Yet, Sri Lanka’s history to-date sheds light on certain approaches to truth telling and truth seeking that have failed to produce the reconciliatory effect that a truth-seeking mechanism is meant to facilitate, particularly in relation to women.

For example, the Lessons Learnt and Reconciliation Commission (LLRC) was tasked with investigating the facts and circumstances that caused the collapse of the ceasefire agreement of 27 February 2002 and led to the events between then and the conflict’s end on 18 May 2009. Following an 18-month inquiry, the Commission’s report was published on 16 December 2011.163

In spite of the limited scope of its mandate, the LLRC is credited with making contributions towards understanding the historic failures of political leaders, the breakdown of rule of law, and some patterns of human rights violations in Sri Lanka.164 Further, the LLRC’ Commissioners also exhibited flexibility in their exploration of timelines and histories, including the on-going hardships faced by many Sri Lankans after the war. This type of approach could be particularly helpful in exploring gender discrimination and a history of violence against women.165

However, the LLRC was criticized for failing to conduct an unbiased investigation into credible allegations of systematic violations by government forces in the final phases of the war, which many claimed amounted to war crimes, crimes against humanity, and other serious violations of international law.166 The LLRC failed to incorporate a gender perspective consistent with international law and standards. In particular, although the report makes specific mention of the effect of the armed conflict on women, it only briefly treats sexual and gender-based violence in spite of credible claims that abuses of this nature were committed systematically.167 As one commentator explained, “despite its earnest objectives, the LLRC fails to consider the status of women as victims or actors in the Sri Lankan conflict. Instead, the male-centred LLRC report represents a masculine and hierarchical regime.”168 This highlights the need for the proposed commission to thoroughly investigate the gendered aspects of a conflict as both a cross-cutting theme as well as in a separate thematic chapter on gender. Otherwise, it is likely that once again the gendered aspects of the conflict will not receive adequate examination in the report and will not sufficiently be conveyed to the society at large.

In addition, the LLRC also failed to adopt policies and processes geared towards facilitating women’s participation. For example, only one out of eight appointed Commissioners was a woman. Many reported that the LLRC failed to create a safe space for victims to testify. Hearings were held in public and typically filmed.169 Further, no protection was given to victims or witnesses. This compromised any possibility of confidentiality for those who testified and discouraged women, particularly victims of sexual violence, from coming forward with their stories.170 This points to the critical need to foster a safe environment for women who testify in hearings.171 Traditionally, this has been facilitated when a sufficient number of Commissioners are women, when there is an option to testify confidentially, or in “female-only sessions,” and when victims and witnesses are protected from surveillance and harassment as a result of their involvement with a commission.

The planned Commission on Truth, Justice, Reconciliation and Non-Recurrence will need to learn from the LLRC’s shortcomings in order to fully uncover the historical, social, and political causes and consequences of the conflict and make recommendations for the way forward. The proposed commission must also take into account the experience of countries in other transitional contexts.

3. The Proposed Truth-Commission

Under the Rajapaksa administration, the government expressed its intention to establish a Sri Lankan Commission modelled after the South African Truth and Reconciliation Commission, and began consultations with South African authorities.172 At the time, the government stated that discussions with South African authorities would be conducted with the “aim of understanding the manner in which that exercise can help in Sri Lanka's own reconciliation process, following the defeat of terrorism.”173 The current administration has maintained contact with South African authorities on the design of the new Commission, although it has not made any commitments to follow the lead of the South African Truth and Reconciliation Commission (TRC). The current government has also stated that within the Commission, there will be a “Compassionate Council,” composed of the leaders of the island’s main religions, and an additional structure composed of Commissioners.174 However, the role of the “Compassionate Council,” has yet to be defined. Concerns have also arisen that the Council would have the power to grant, or recommend, amnesty from criminal prosecutions or a type of presidential pardon for those convicted by a court.175 

At this time, the government has yet to make any statement regarding its approach to gender in the new Commission. There is a wealth of experience to guide the work of Sri Lanka’s Commission in the area of gender-sensitivity. However, designing the Commission is simply the first step in truly executing the Commission’s mandate in a gender-sensitive manner. Facilitating the examination of complex histories beyond a singular, and biased version of the truth will require the Commission itself to remain flexible and willing to reflect and learn. This may become difficult when the examination of gendered aspects of conflict challenge the assumptions on which the basic structure of society is based. However, it is a necessary process on the road to reconciliation and, further still, it is a unique opportunity to advance the equal position of women in Sri Lankan society.

4. Best Practices and Recommendations for Gender-sensitivity

The current section proceeds by first reviewing best practices with respect to mainstreaming a gender perspective throughout the work of the Commission. It then presents recommendations with respect to staffing and employment policies, the Commission’ s mandate, programs essential to facilitate women’s participation, and finally, to the carrying out of hearings to encourage women’s participation.

a) Mainstreaming Gender Approaches in the Work of Truth Commissions

Truth commissions have only recently started to incorporate gender perspectives into their work. In the earliest truth commissions, sexual and gender-based violence was not an explicit focus in their mandates and was often only addressed in passing despite the pervasive presence of sexual and gender-based violence in conflicts and during times of political repression all over the world. Further, little was done to ensure women’s representation in the design and implementation of truth commissions. However, much has changed since the earliest commissions, including the South African Commission, and the inclusion of sexual and gender-based violence in commissions’ mandates is now standard practice.176

The most recent commissions have also found unique ways to engage with women survivors in their communities. This has produced greater gender-sensitivity in the functioning of the commissions in addition to a more accurate and thorough reflection of the link between gender and armed conflict in their final reports. Finally, gender parity in the nomination of Commissioners has also been made standard in most recent truth commissions.177

A number of the recommendations applicable to the OMP are equally applicable to a truth commission. Commissioners’ appointments and overall staffing should seek to achieve gender parity.178 In South Africa, gender parity, and particularly the strong, well-respected female Commissioners, proved to be crucial for the functioning of the Commission. These Commissioners had sufficient influence in the Commission to incorporate gender-sensitive aspects in the work of the Commission despite its gender-neutral mandate and pushback from other Commissioners. For example, in response to the active engagement and consultations with women’s rights groups, the female Commissioners ensured that particular attention was paid to gender in the final report and that “female-only hearings” would be conducted.179 This example re-emphasizes the need for a consultative process with women’s rights groups throughout the functioning of the Commission, the need for flexibility in internal policy so as to switch from one approach to another when one is failing, and finally, the need for women to occupy decision making positions within the Commission.

The Commission should also take care to implement gender-sensitivity into all aspects of its employment practices through vetting, training, and codes of conduct.180 Of particular note, women may feel uncomfortable testifying before religious leaders, as was expressed by some women in the North and East in local consultations.181 This should be taken into account when appointing Commissioners and the Commission should not consist solely of a Compassionate Council.

Further, promotion of gender-sensitivity at the Commission should include special trainings for interviewers who will be interacting with women and seeking to capture the complete and accurate history of the female gender experience of conflict. As indicated by the ICTJ, “it is important that those who take testimonies are properly trained in a range of interview techniques and the breadth of women’s human rights experience so that they can look for cues to patterns of abuse.”182 This is particularly important because research shows that women may not be as forthcoming about their own experiences of conflict as men.

Like the OMP, the Commission should consider establishing a gender unit to plan, coordinate, and review gender aspects of the Commission’s work, such as gender-sensitivity trainings.183 However, a gender unit should not operate to the detriment of mainstreaming gender-sensitivity in every unit of the Commission, nor should gender aspects of the Commission’s work be confined to the gender unit. Instead, the Commission must ensure that all units are and remain committed to taking a gender-sensitive approach to their work.

b) Mandate

With respect to the Commission’s mandate, it should first be noted that the right to truth has been broadened and now extends to the society at large and not only to those who have been victims of human rights violations.184 From this it can be discerned that all individuals and women in particular not only have a right to the truth in relation to individual crimes committed against them, but also have a right to the truth regarding structural and societal patterns of discrimination. Generally, these constitute human rights violations in their own right and give rise to many other human rights violations associated with an armed conflict, such as sexual and gender-based violence. Without this insight, the general public would not have a full picture of the systemic human rights violations associated with Sri Lanka’s armed conflict and the new Commission would be unable to effectively contribute to their non-recurrence as a result.185

To ensure that patterns of violations against women are captured in the Commission’s work, a broad definition of “human rights violations,” which not only looks at violations resulting in bodily harm, but also at broader human rights violations, such as those of social, economic, and cultural rights, is required.186 In South Africa, the human rights violations women suffered as a result of apartheid were often located in the private sphere, rather than in the public sphere.187 South Africa’s Truth and Reconciliation Commission did not thoroughly explore this dimension, and, as a result, it has been criticized for misrepresenting women’s experience of apartheid and thus distorting the truth. In Sri Lanka, when examining issues such as displacement and, as previously mentioned, enforced disappearances, patterns of widespread human rights violations of a non-physical nature are likely to emerge that will only be captured if the Commission takes a broad approach to human rights violations.188

Additionally, when defining sexual and gender-based violence, the Commission should take a broad approach, which includes all types of harassment and abuse with a sexual or gender-based element, beyond rape. Further, the Commission will also need to be flexible in approaching historical timelines, as the roots of the violations based on gender discrimination may be situated on a much longer timeline than perhaps other aspects of the armed conflict’s roots. Further, the Commission must explore the full complexity of women’s experience, such as acts of resistance and periods where women expanded spaces for their empowerment in the North and the East. As explained in the first chapter, women’s experience should not be seen solely through the lens of victimhood and they should not be painted as such in the Commission’s work. To do so, would dampen the quality and efficacy of the Commission’s work, fail to recognize that truth lies beyond a simple and singular version of history and alienate many women who participated in the process.

Finally, the Commission should ensure that all of its findings regarding the gendered aspects of conflict are presented in a manner that is accessible to the general public. This may be done by dedicating a full chapter to the subject, as well as using it as a crosscutting theme throughout the report.189 The ICTJ and UN Women recommend that topics in the gender chapter of the Commission’s final report should include:

1. Gendered patterns of human rights violations;
2. Gender-differentiated impact of human rights violations and the broader conflict;
3. National and international law addressing crimes against women;
4. Enabling conditions for women’s vulnerability to human rights violations;
5. Ideologies of femininity and masculinity that permeated the conflict in relation to nationalism and violence;
6. Gender dynamics of racial oppression and other kinds of social exclusion/marginalization that characterized the conflict;
7. Role of women activists, both as individuals and through women’s organizations
8. Gender dimensions of psychosocial trauma in the affected community;
9. Issues that emerged in individual and thematic public hearings;
10. Recommendations for reparations and reform that address women’s specific needs and goals;
11. Gender-differentiated statistical analysis of the Commission findings;
12. Challenges the Commissions faced in investigating crimes suffered by women; and
13. Gender-specific limitations of the Commission’s work and findings.190
These topics would aid in the identification of the causes of women’s suffering during the armed conflict and help identify avenues for redress through the elimination of societal gender bias and discrimination.

c) Facilitating Participation

Similar to the OMP, the Commission should take care to ease or remove practical obstacles that may prevent women from testifying, such as the financial burdens, lack of transportation, ill-health, emotional issues, disability and the lack of child care.191 Some measures that could remove practical barriers to access include: childcare facilities at the Commission, safe and free transportation to and from the Commission’s premises, and regional offices located in areas most affected by the armed conflict so that women do not have to travel long distances to reach the Commission.

Additionally, the Commission should implement a victim and witness protection program on par with the one recommended for the OMP, which takes into account the specific threats that women face on account of their gender. As pointed out elsewhere, there are a number of weaknesses in the new Victim and Witness Protection Act which have given some the perception that they are not protected under it.192 Of particular concern is that the Authority under the Victim and Witness Protection Act is to be headed by a majority of ex officio senior public servants and the remaining are to be appointed at the discretion of the President, which compromises the Authority’s autonomy.193 The perception that the current legal framework for witness and victim protection is not enough was confirmed by women in local consultations, who expressed a deep concern regarding the new Victim and Witness Protection Act. They emphasised that the Act does not provide sufficient security to ensure their safety if they were to testify before the proposed Commission.194 It should be noted that women’s perception of their safety is as important to encourage their participation as the actual safety measures that are implemented. The current legal framework is suffering from weaknesses in both areas. Thus, it is important for the Commission to implement its own victim and witness protection program to fill the gaps and address issues that exist in the new Victim and Witness Protection Act, especially with respect to the protection of women.

d) Hearings

Eliciting the truth of women’s experiences can prove to be difficult. Research shows that when women testify, they tend to report the violations experienced by their male family members, instead of the violations that they have themselves endured.195 The most recent truth commissions have worked on solving this problem by using increasingly creative methods to ensure women’s participation in the truth commission’s proceedings and to encourage them to open up about their own experiences in addition to their relatives’ experiences. Other ways of understanding women’s experience were explored in Timor-Leste, where the CAVR made proactive efforts to reach out to women beyond taking statements and conducting extensive outreach. This included in-depth interviews and case stories of female survivors.196 This provided a comprehensive and in-depth oral history of women’s full experience of the conflict, making the final report richer and more accurate than it would have been otherwise.197 Thus, in addition to hearings, it is also important for women to be able to tell their stories using alternative means. For example, women in local consultations expressed the desire to be able to write and publish their narratives and to submit documentation apart from oral statements that could aid in the establishment of a history they wished to tell.198

In encouraging women’s participation, the Commission must ensure that it is respectful of the boundaries of what women are willing to share and respectful of confidentiality. In order to determine the boundaries that it should respect, the Commission must be sensitive to the reasons behind women’s traditional reluctance to come forward with their stories. Chulani Kodikara, Senior Researcher for the International Centre for Ethnic Studies, notes that women’s silence “was possibly their way of normalizing life and switching to survival mode in the militarized and repressive post-war phase. They may also maintain silence due to fear of losing control of their stories once they are in the open.”199 For example, women who do testify in public hearings about a number of issues may not want one particular issue emphasized over others in the final report. They may not want to be described merely as victims, as this is not an accurate reflection of their experience of conflict. Further, in local consultations, women emphasized that gender-based discrimination must be taken into account when women come forward to testify. Therefore, the Commission should be sensitive to the social stigmatization and cultural repercussions that could result from women’s participation.200

During hearings, a wide range of strategies may be employed to capture the full breadth of women’s experience. Thematic hearings, in coordination with individual hearings, are increasingly being used to lay emphasis on particular issues and situate them in their broader context. Thematic hearings can contribute dramatically to the analysis of the topics recommended for the gender chapter in the Commission’s final report. For example, thematic hearings in the Peru CAVR called on feminist scholars and gender specialists to provide expert testimony into the structural conditions that both caused and exacerbated human rights violations against women.201

Women should have the option of testifying individually or as a group in either individual hearings or in thematic gender hearings, as each type of hearing addresses different needs.202 Thematic hearings may permit a safe space for women to speak about issues that are deeply personal and that they may not feel comfortable sharing with the general public. Individual hearings allow women to situate their experiences within the broader national history and to address the general public. As long as they feel comfortable in doing so, it is important that women do indeed testify, as testifying has been known to contribute to an individual’s healing process, as well as contributing to the healing of the nation as a whole. Thus, hearings should seek to create an environment where women feel safe and free to express emotion.203 Therefore, providing a range of options, such as being able to testify confidentially, may encourage participation.204 According to Charlotte Bunch, feminist scholar and Founding Director of the Center for Women’s Global Leadership:

As women testify, they not only make visible the abuse to which all too many females are regularly subjected. They also move from being victims to becoming survivors engaged as political actors in changing their own lives and creating the conditions necessary to end such abuse in the lives of millions of women around the world.205

5. Conclusion

As the above seeks to illustrate, there is a wealth of experience to guide the work of the proposed truth commission in the area of gender-sensitivity. However, designing the Commission is simply the first step in truly executing the Commission’s mandate in a gender-sensitive manner. Facilitating the examination of complex histories beyond a singular, and biased version of the truth will require the Commission itself to remain flexible and willing to reflect and learn. This may become difficult when the examination of gendered aspects of conflict challenges the assumptions on which the basic structure of society is based. However, it is a necessary process on the road to reconciliation and, further still, it is a unique opportunity to advance the equal position of women in Sri Lankan society.

C. Judicial Mechanism with Special Counsel
1. Introduction

Judicial institutions can promote a shift in the way Sri Lankan society views grave crimes committed against women. However, this shift is only possible when judicial institutions are independent and impartial, and are also perceived as such by the public. Given the reality on the ground in relation to accusations of sexual and gender-based violence and the lack of attention this has received by local courts, a hybrid tribunal alongside the domestication of international criminal law will be the most effective way for Sri Lanka to address some of the gravest crimes to have been committed during the war.

It should be noted that, gender-sensitivity in criminal justice processes requires considerations beyond the investigation and prosecution of crimes related to sexual and gender-based violence.206 However, this chapter will focus on this specific aspect because: 1. this was of particular concern to women in local consultations, and 2. this has been a persistent and widespread issue in Sri Lanka that has not received sufficient judicial attention. The current chapter proceeds by reviewing sexual and gender-based violence in Sri Lanka, before describing the current political context of the proposed judicial mechanism with special counsel. Finally, the chapter will look at best practices and recommendations applicable to the functioning of the proposed judicial mechanism.

2. Sexual and Gender-based Violence in Context

It has been extensively reported that sexual and gender-based violence was committed in both a widespread and systematic manner during the armed conflict in Sri Lanka.207 Various sources report, and the UN Secretary General in a report to the UN Security Council also concluded, that sexual and gender-based violence increased in the immediate post-conflict period.208

Researchers have concluded on the basis of the available evidence that Sri Lankan security forces used sexual violence over the years to control the Tamil population through degradation and fear, to intimidate victims and their families into silence, and to extract large ransoms.209 Sexual violence by security forces has been reported in displacement camps, police stations, places of detention, and sometimes in victims’ homes.210 Researchers also argue that various parties to the conflict used sexual torture on male and female detainees, in order to gain information and to instil terror amongst their opponents.211 Methods reportedly used by government security forces, for example, included rape, and burning or spraying chilli powder on the genitals of detainees, crushing detainee’s genitals by slamming drawers, and anal rape with barbed wires.212 It is further considered that many incidents have gone unreported due to the victims’ fear of reprisals and intimidation, as well as the stigmatization that attaches to victims and sometimes their families within the community.213 If these allegations prove to be true, they could amount to war crimes and crimes against humanity.

Under international humanitarian law and human rights law, Sri Lanka has an obligation to investigate and prosecute perpetrators of sexual violence and to ensure that victims have access to health care, justice, and reparations.214 However, in spite of staggering evidence to support claims of sexual and gender-based violence, there have been very few prosecutions to date.215 Even in rare instances where perpetrators are prosecuted and found guilty of rape, the sentences of perpetrators are often suspended.216

Reasons for this stem from both substantive and procedural weaknesses in the law to try crimes of this nature, as well as a lack of political will within the Sri Lankan judiciary to address the sheer scale of the problem. One substantive weakness in the law, for example, is that only women can claim to be victims of rape under Sri Lankan law, even though evidence points to the fact that many men were raped in detention.217 Additionally, concepts under international criminal law, such as command responsibility and joint criminal enterprise, are not present in domestic law, which prevents the full scope of criminal accountability permitted under international law for perpetrators of crimes of this nature.218 As a result, domestic law is mismatched for the task of prosecuting those most responsible for sexual violence as a war crime and crimes against humanity, as would be necessary to address widespread sexual and gender-based violence stemming from the armed conflict.

Embedded discriminatory biases that colour the way local officials see victims of these crimes further compound the weaknesses described above during both the investigation and the trial phase. In addition, while the police are tasked with investigating these crimes, police officers are often implicated in committing sexual violence.219 The stigma and sensitivity surrounding acts of a sexual nature, gender biases and patriarchal attitudes of authorities responsible for investigation and prosecution also make it difficult to prosecute perpetrators under the domestic legal system. This represents an additional hurdle to effective accountability for sexual and gender-based violence.220

This stigma directly correlates to societal views of male and female gender roles. As a result, the stigma that attaches to victims is different depending on their sex. For example, male are particularly reluctant to report instances of sexual violence for fear that they may be regarded as either weak or homosexual and be stigmatized for this reason.221 Even if a male victim does report an incident to authorities, perpetrators cannot be tried for rape or sexual abuse, as the law does not recognize that men can be raped. Sri Lankan criminal law thereby plays into societal misconceptions about gender and sexual violence. As a result, sexual violence against men is believed to be vastly underreported even though evidence indicates that rape and sexual abuse of men happened on a shocking and widespread scale in Sri Lanka.

As a result of the web of lacunae in the legal framework and the stigma that attaches to victims within the community, the latter have been left in a state of isolation and insecurity with very little prospect for redress, while perpetrators have been able to act with impunity.222 This situation has intensified victim communities’ distrust of the justice system and has therefore weakened the overall rule of law in Sri Lanka. As a result, an alternative mechanism is needed to try crimes of this nature in order to give victims and society confidence in the independence and impartiality of the judicial process especially for sexual and gender-based crimes. This would be most easily accomplished through a tribunal with a hybrid structure, comprising a mix of international and domestic judges and lawyers. This would ensure that the process meets international standards while remaining close to the context where crimes allegedly took place.

3. Proposed Judicial Mechanism with Special Counsel

Even though the government committed to establishing a judicial mechanism with a special counsel’s office with a mix of domestic and international judges and lawyers, the President has at times vacillated on the commitment to include international judges.223 The President has also made statements assuring the military that its interests would be protected, which has raised questions regarding the government’s commitment towards pursuing accountability.224 However, an official government position regarding the form of the judicial mechanism has not been reached and the timeline for reaching a decision has seemed to stall.225

Internationally, there have been persistent calls for a judicial mechanism in the form of a hybrid tribunal to address wartime abuses in Sri Lanka. For example, in September 2015, the UN High Commissioner for Human Rights emphasized that “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.”226 This sentiment was further expressed in the OISL report, which stated that “Sri Lanka’s criminal justice system is not yet ready or fully equipped to promptly conduct the ‘independent and credible investigation’ into the allegations contained in the report or ‘to hold accountable those responsible for such violations’” as is necessary under international law.227 Given the widespread nature of the problem of sexual and gender-based violence and the weaknesses in the domestic judiciary to try crimes of this nature, without the establishment of a hybrid tribunal alongside numerous domestic law reforms, it is hard to see how the Sri Lankan government can satisfy its obligations to investigate and prosecute widespread sexual and gender-based violence.

However, regardless of whether Sri Lanka establishes a judicial mechanism with international support, the domestic system will need to incorporate a number of changes in order to deal with the scale and gravity of widespread sexual and gender-based violence, most notably:

1. The incorporation of international crimes and modes of liability into domestic law, as described in “Fitting the Bill: Incorporating International Crimes into Sri Lankan Law.”228
2. The implementation of a national plan to address sexual violence through the criminal justice system and the commencement of government initiated investigations into claims of sexual violence committed on a systematic basis by security and police forces, even where there is no victims’ involvement in the process.
3. Whenever sexual violence and rape are committed in connection to the conflict or on a widespread and systematic basis, they should be investigated and prosecuted by the Special Court as international crimes.229
4. The placement of gender specialists in every investigative office and victim and witness protection program around the country who can review investigations of sexual violence and recommend appropriate gender-sensitive measures or programs for victims, both male and female.
5. The adoption and implementation of gender-sensitive criminal procedure, including a robust system of victim and witness protection, such as that described in “Victim and Witness Protection: the Need for Further Reform.”
6. The coordination of the judicial system with other transitional justice programs, and civil society, for the provision of services, such as psychosocial and medical services to survivors of sexual and gender-based violence.

Significant advances in addressing sexual violence through criminal justice have been made in international judicial practice over the past decade and a half. A review of these advances in both substantive as well as procedural practice will inform adequate approaches to criminal accountability for sexual and gender-based violence.

4. Best Practices and Recommendations for Gender-sensitivity

The current section proceeds by presenting important contours to the definition of rape and sexual violence in accordance with international law, before suggesting recommendations for prosecutorial strategy, staffing and employment considerations, victim and witness support services, investigations, and finally, hearings.

a) Definition of Crimes

The Rome Statute criminalizes rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, gender-based persecutions, trafficking of persons (particularly women and children), and other acts of a similar gravity when committed as part of a widespread or systematic attack directed against any civilian population231. Additionally, rape and other sexual and gender based violence has been deemed to constitute the constituent acts in relation to war crimes and genocide.232

In accordance with international best practice, the definition of rape itself must be gender-neutral in order to capture the rape of both men and women and to prevent discriminatory treatment by courts of victims during the trial process. Under the Rome Statute, rape is defined as an “invasion” or “penetration” of a “person” that is “committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, or by taking advantage of a coercive environment.”233 This definition is gender neutral and also focuses on the coercive acts of the perpetrator, including threats and psychological oppression, which creates a rebuttable presumption that consent is not present under circumstances of coercion. As proven through the years of international criminal practice, this is important because “to assume a lack of consent a priori in these circumstances not only eases the later procedure in court and the burden of proof, but also the victims’ situation of not being interrogated and questioned regarding his/her disagreement on the actions taken by the offender and thereby re-living and remembering traumatic experiences.”234 Therefore, a definition of rape with similar elements is advisable for Sri Lanka as well.

Although sexual violence is not defined in the Rome Statute or the statutes of other international tribunals, it is understood to be broader than rape and refers to “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.”235 Traditionally, in order for an act of sexual violence to amount to an international crime triable in an international tribunal it must be deemed to be of a certain gravity and be committed in a specific context, for instance, a widespread and systematic attack against a civilian population or an armed conflict. Although the gravity standard within the various international criminal tribunals and the ICC differ,236 the following acts have been found to constitute sexual violence as a war crime, crime against humanity, or genocide237 in international case law: trafficking for sexual exploitation, mutilation of sexual organs, sexual exploitation (such as obtaining sexual services in return for food or protection), forced abortions, enforced contraception, sexual assault, forced marriage, sexual harassment (such as forced stripping), forced inspections for virginity and forced public nudity.238

b) Prosecutorial Strategy

First, it is essential that the judicial mechanism implement a global strategy for prosecuting sexual and gender-based violence. This means that the investigation and prosecution of sexual violence must be an integral part of the prosecutor’s overall strategy to investigate and prosecute other international crimes before the court. In this regard, it is advisable that the court dedicates a certain proportion of its investigations to acts of sexual and gender-based violence.239 For example, the Special Court for Sierra Leone dedicated twenty per cent of its investigations to sexual and gender-based violence crimes to counter the persistent lack of treatment of these crimes typically received in courts despite their widespread commission in Sierra Leone’s civil war.

As part of this global strategy, it is also advisable that investigations into acts of sexual violence are either part of investigations into other crimes, or that the investigation team for sexual violence works side by side with the investigation team for other crimes. To the extent that the investigation of sexual violence is separated from the investigation of other criminal acts before the court, a measure of caution must be taken. As was found in the experience of the International Criminal Tribunal for Rwanda (ICTR), separating the investigation of sexual violence from the investigation of other crimes may actually hinder the collection of evidence necessary to form a complete picture of the context in which sexual violence was committed.240 This is because the commission of sexual violence is usually intertwined with the commission of other crimes and therefore investigation of sexual violence cases requires the collection of evidence related to other crimes within the jurisdiction of the court. Thus, when a certain percentage of investigations are dedicated to sexual violence crimes, these investigations must be an integral part of the office’s overall strategy to investigate all crimes committed in connection with a particular incident or defendant.

c) Staffing and Training

As described in previous sections, while there is no absolute guarantee that women will take a gender-sensitive approach in their work, they are more likely to do so and to be accessible to women’s organizations.241 For example, in the ground-breaking case of Akayesu before the ICTR, due to advocacy efforts of women’s organizations and the sole female judge on the bench, the charge sheet was amended to include a charge of sexual violence, which was originally left out despite sufficient evidence to support such a charge.242 Thus, as observed in previous sections, gender parity in the appointment of judges, lawyers, and other staff, cooperation with women’s organizations in civil society, vetting, codes of conduct which include a sexual harassment policy, and continuous and consistent gender-sensitivity trainings for all staff members is crucial to the functioning of the court.

As in the ICC, the prosecutor should be able to appoint advisers with legal expertise on sexual and gender-based violence. A victim and witness unit should be housed within the registry of the court and it should include staff with adequate experience in trauma related to sex crimes.243 These experts should also be able to counsel victims on what they can expect in court and what services will be available to them.

d) Victim and Witness Support Services

In the context of trials, victim and witness protection is absolutely crucial due to the contentious nature of trials and the interests that are at stake for the accused. In many instances, the contentious nature of trials will increase the risk of reprisals against victims and witnesses. To this end, a victim and witness protection program on par with the programs defined in previous chapters is equally relevant in the context of court proceedings,244 with a particular emphasis on assessment of the risk of a threat that may be unique to trials.

Finally, psychosocial support on par with the programs described above should be available for all witnesses and court staff throughout the investigation, trial, and even post-trial phase.245 Counsellors should be specifically trained and experienced in providing psychosocial support to survivors of wartime sexual violence.246

e) Conducting Investigations

In spite of the major advances that have taken place in international jurisprudence, sexual and gender-based crimes continue to be particularly difficult to address in the adversarial process of courts. Part of this difficulty stems from persisting stereotypical attitudes towards gender related crimes held by court members and staff. Another reason relates to the stigma that attaches to victims in the community and the insensitivity with which victims tend to be treated by the State. As a result, victims and witnesses tend to be particularly reluctant to testify in relation to these crimes. However, certain procedural rules can help ensure that victims and witnesses feel comfortable and safe enough to participate in the work of the court.

In collecting evidence, it must be kept in mind that detailing the circumstances surrounding sexual violence can be extremely painful and humiliating for victims and witnesses. Therefore, all available measures should be taken to minimize the impact of interviews on survivors. For example, after review of all available evidence, investigators should determine whether every victim testimony is absolutely necessary before requesting an interview.247 Additionally, all interviewers and investigators should have an in-depth knowledge of the law regarding sexual and gender-based violence248 so that they can correctly balance the protection of victims and witnesses with the collection of as much evidence as possible.

In the course of the investigation, the prosecutor’s office must also coordinate with civil society, particularly women’s organizations which may have already taken statements or gathered other relevant evidence. As such, the judicial mechanism should establish avenues of communication and coordination with local civil society organizations at the outset of its functioning for purposes of facilitating evidence gathering. Any outreach team or gender unit should ensure that local civil society organizations are aware of available pathways for coordination, and should seek to build these relationships even prior to the initiation of a case for which an organization may have evidence.

If it is determined that conducting an interview with a survivor of sexual violence is necessary, the interview must take place in a safe, secure, and sufficiently private place and every effort must be taken to make her feel comfortable to speak openly. It should also be conducted in a respectful and sensitive manner.249 Sufficient consideration should also be had to the witness’ family and work responsibilities.250 For example, arrangements should be made for child-care, as it is not wise to have children in the room during an interview as they may be traumatized by details they may hear or the witness may not feel comfortable speaking openly in front of her child.251

While conducting interviews and taking statements, investigators must be acutely sensitive to the competing interests of acquiring as accurate an account as possible, while shielding the witness from re-traumatization.252 To the extent that a witness displays signs that an interview253 is too painful or traumatic, the investigator must be prepared to stop the interview. Under no circumstances should a witness be left worse off on account of giving an interview to investigators. If this seems likely to be the case, then the investigative process in relation to that witness should come to an end and the investigator should instead attempt to secure the same evidence through other sources.254

To avoid re-traumatization, at the start of an interview, an investigator should explain the interview and post-interview process to the witness.255 To this end, a standardized interview checklist, which outlines the role of each individual present for the interview and standards of confidentiality, may be presented to the witness at the start of every interview.256 Finally, the investigator must provide information about the trial process to the witness, including warning the witness that if the case goes to trial, her name will eventually be released to the court and she may have to face the accused in the courtroom as part of the rights of the accused. As these considerations may be material in a witness’ decision to testify, they are of particular importance. At all times throughout the interview and any dealing with which the investigator interacts with
the witness, the investigator must exhibit great empathy and sensitivity towards the experience of the witness.257

Finally, with respect to evidentiary standards, sexual and gender-based crimes require evidentiary standards different to other crimes due to evidentiary peculiarities typically found with sexual violence cases. These also prevent common courtroom biases from interfering with the impartiality of evidence evaluation.258 For example, corroboration should not be required to substantiate victim claims and absence of consent should be presumed when the perpetrator took advantage of a coercive environment, such as in a detention centre. The personal sexual conduct of the victim cannot be considered as evidence. In addition, silence or lack of resistance by the victim during a crime of sexual violence cannot be taken to imply that she or he consented to the act.

f) Hearings and the Trial Phase

Further, the court environment should be victim-centred, where victims and witnesses are guaranteed a safe and respectful atmosphere, without compromising the rights of the accused.259 Court procedures should also allow for the possibility of in camera hearings, to protect the confidentiality of victims. Further, it should be possible to testify through electronic or other special means, such as established in the Rome Statute. Some jurisdictions also allow for witnesses, particularly children, to have a support person present with them whilst giving evidence in court, such as a family member or a counsellor.260 Support in this instance is usually subject to the court’s discretion upon application by the party calling the witness. In evaluating this type of request, it is best practice for the court to consider: the witness’ age, the nature and circumstances of the alleged offence, whether the quality of the witness’ evidence is likely to be diminished by reason of fear or distress and the right of the accused to a fair trial.261

Further, both the prosecutor and defence counsel must use a victim-centred approach when questioning any witness that takes the stand. To this end, they must be trained in effective ways of conducting an examination-in-chief and in cross-examination to minimize the re-traumatization of the witnesses. In so doing, it is recommended that counsels adopt the following general approaches:

• resolve any outstanding disclosure, scheduling, and other procedural issues before the witness appears so that valuable courtroom time is not wasted on counsels’ arguments and the witness is not inconvenienced;262
• allow the witness to settle into answering non-traumatic questions before moving to discussion of the traumatic incident of rape or sexual violation;
• while leading the evidence, only adduce relevant evidence in order to minimize the witness’ stress and limit the scope of cross-examination to areas relevant to the charges;
• monitor the witness closely by maintaining polite eye contact and remaining alert to the witness’s needs, including, for instance, making available a glass of water or tissues; and
• if witnesses become too distressed to seek the court’s indulgence for a short break in proceedings.263

Following any interview or hearing, a trained counsellor should meet with the witness or victim in order to attend to their emotional and physical well-being.264

5. Conclusion

Ensuring that the judicial mechanism counters deep-seated gender biases, while also effectively prosecuting crimes that are by nature difficult to try, will not be an easy task. However, the proposed special judicial mechanism should take into account the wealth of experience in international criminal practice in order to correct judicial failures of the past in addressing widespread sexual and gender-based violence. By incorporating international law and best practices into its domestic judicial practice as well as in the judicial mechanism with special counsel to be set up pursuant to UNHRC Resolution 30/1, Sri Lanka has the opportunity to signal to its people that sexual and gender-based violence will not be tolerated in the Sri Lankan system, and that no perpetrator, no matter their official status, is above the law.

D. Office on Reparations
1. Introduction

Of the various transitional justice mechanisms, the Office on Reparations is capable of providing the most comprehensive and multi-faceted redress for victims of the armed conflict. This especially applies to women, who face socio-economic harms that are difficult to redress through other mechanisms. These socio-economic harms tend to exacerbate women’s inequality in the post-war phase and beyond, if not properly addressed through various forms of reparations. In this way, the Office on Reparations has the potential to practically and effectively address underlying gender inequalities that women face in recovering from the armed conflict.

The current chapter proceeds by reviewing reparations efforts to date in Sri Lanka before looking at the state of the proposed Office on Reparations. Finally, this chapter looks at international best practice alongside recommendations obtained through local consultations with respect to incorporating a gender perspective into reparation schemes.

2. Reparations in Context

As explored in the sections above, women face a number of complex challenges stemming from the armed conflict. These challenges are exacerbated on account of their gender. In order to provide effective reparations for abuses stemming from the armed conflict, it is also important to understand the long-term effect that these abuses have on women’s lives in the post-conflict phase.

Attempts to implement reform and provide reparations have been underway for quite some time in Sri Lanka but with varied results. For example, past Commissions of Inquiry in Sri Lanka, such as the LLRC and the Paranagama Commission, have explored various aspects of the armed conflict and have made numerous recommendations regarding reparations for victims and their families.265 Although many of these recommendations remain relevant, very few have been implemented so far.

The current administration has promised to undertake a number of measures to address issues stemming from the armed conflict, some of which have particular importance for women.266 Most recently, the Office of National Unity and Reconciliation (ONUR) in coordination with the Ministry of National Integration published a draft national reconciliation policy based on the idea of power sharing to reach political settlement of the grievances held by the various communities in Sri Lanka.267 The policy, which has been submitted to Parliament for approval, emphasizes principles of equality, notably gender equality, human rights, inclusivity, judicial independence, cooperation, and the importance of reparations to victims who have suffered loss as a result of conflict. Additionally, ONUR, together with the Ministry of Women and Child Affairs, has launched a program to provide relief to war-affected women in the North.268 ONUR has stated that it has identified serious gaps in “services and opportunities” available to women affected by the war, and in particular war widows and women-headed households.269 As an initial step, ONUR and the Ministry of Women and Child Affairs are working with various government agencies to assist women who have been unable to obtain vital documents necessary for accessing government benefits and services. Each of these represents important initial steps in post-conflict reconstruction and to alleviate the particular harms that women have faced during the conflict and in the post-conflict phase.

3. Proposed Office on Reparations

To-date, the government has not made any specific pronouncement with respect to the timing or the role of the Office on Reparations in relation to other proposed measures. However, when outlining the government’s transitional justice plans to the Human Rights Council, Foreign Minister Mangala Samaraweera noted that an Office on Reparations would be set up by statute “to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity.”270 Yet, it appears that the Office on Reparations may be established sooner than other mechanisms including the special court and the truth commission.271 Therefore, it is possible that recommendations for reparations are made independent of the findings from other mechanisms.

However, if the Office on Reparations’ recommendations were to be made on the basis of other mechanisms’ findings, it would be particularly important for each of the transitional justice mechanism to thoroughly establish harms that are felt by women so as to facilitate the provision of reparations. For example, if the Commission on Truth, Justice, Reconciliation and Non-recurrence does not explore the socio-economic effects of the armed conflict, women will likely not be compensated for most harm they suffered as a result of the conflict. Given that past Commissions of Inquiry in Sri Lanka have not been successful at establishing a complete picture of the armed conflict’s impact on women, it is advisable that the reparations provided to victims through the Office on Reparations are not completely reliant on the findings of other mechanisms. However, if this is to be the case, individuals should be able to either challenge the findings of other mechanisms or to provide additional information to the Office on Reparations to establish harms for which they should receive reparations.

Taking these considerations into account, establishing the Office on Reparations at an early stage of the transitional justice process without necessarily waiting for other mechanisms to reach their findings may better serve victims’ interests. As some have argued, this would help to build trust with affected communities and to acknowledge victims’ dignity.272 Further, the findings of various government inquiries as well as documentation efforts carried out by civil society and international bodies may provide a basis for the formulation of a comprehensive reparations policy even prior to the establishment of the Commission of Truth, Justice, Reconciliation, and Non-recurrence and of the Judicial Mechanism.

Although the Office on Reparations has the potential to provide meaningful and transformative redress to women survivors, a unique understanding of women’s experience in the conflict and post-conflict phases is essential. This can only be provided with the input of the women in the various communities themselves. Any reparations that are given must not only provide financial compensation but also must meet a complex set of needs, including legal and policy reforms that address embedded structural and societal inequalities that stem from discrimination against women.

4. Gendered Aspects of Reparations

The current section proceeds by reviewing staffing and employment considerations, accessibility to reparations programs, the harms reparations should cover, including recognizing and addressing the multi-faceted harms of women, and identifying structural and societal inequality that stands in the way of adequate reparations. Finally, this section will examine the types of reparations the Office should provide, taking into account what women in local consultations have expressed to be their preferences.

a) Staffing and Employment

As in the other transitional justice mechanisms, the Office should strive for gender parity in appointments and staff recruitment.273 Additionally, the Office should devise and implement a code of conduct, including a sexual harassment policy. Women in local consultations have expressed the importance of having this code of conduct displayed publicly in the Office’s premises. They have also requested that it contains the prohibition of bribery, with explicit details relating to sexual bribery, and lays out a complaint procedure.274 Finally, gender-sensitivity trainings should be implemented. These should also sensitize the personnel to the structural and societal inequalities that women face and that are particularly relevant for the operation of the Office. For example, trainings can include lessons on land rights in Sri Lanka and the particular challenges women face with respect to property rights in the North and East.275

b) Accessibility and Support Services

Similarly to other mechanisms, the Office must take into consideration transportation hurdles, language barriers, lack of knowledge about the various services available, psychosocial distress, financial constraints, and physical disability as potential barriers to women’s access to its services.276 As women in local consultations suggested, many of these barriers may be overcome through the creation of a decentralized Office with district-based offices and staffed with people from affected communities.277 This will help to ensure empathy and enable staff members to better empathize with the harms that women in the community suffered and therefore determine appropriate reparations.

Lastly, many women have already engaged with various government programs and have had to tell their stories numerous times. The Office on Reparations should minimize the amount of duplicative information women must provide in order to receive services.

c) Recognizing and Addressing the Multi-faceted Harms Suffered by Women

In structuring a reparation package for an individual, it is important to consider the multiple impacts of war on that individual specifically. For example, as was described in local consultations, a woman who had to give up her university education and look after her family at the age of 19 because her two brothers and mother were not able to do so for war-related reasons, should have each of these considerations taken into account when determining an individual reparations package. Reparations to address the multi-faceted harms for which a woman has suffered could include measures such as education or job assistance, economic assistance, in addition to psychosocial support and financial compensation.278

Extensive cooperation and information-sharing between the various transitional justice mechanisms regarding challenges that women face is essential for the Office to efficiently gather the information required to formulate a reparations package that addresses the various harms that women in the North and East have suffered as a result of the war. This will additionally require consistent consultations with civil society organizations providing services to women in the local communities and that are more attuned to their needs than the government.279 Those organizations would additionally be able to assist the Office in addressing the needs of individual victims who may not have been included in reparations program.

d) Recognizing and Addressing Structural and Societal Inequalities

(1) Societal

Reparations to women in the North and East will be ineffective if they simply seek to repair harms that stem from the armed conflict. In order to completely address the harms suffered during the armed conflict, the Office must seek to also transform the underlying inequalities that women face in Sri Lankan society. In doing so, the Office will need to take a creative approach in recommending government programs that seek to address societal gender discrimination, such as education campaigns, outreach programs, or media campaigns that influence the way society views women. In South Africa for example, following the TRC’s report and observation that South Africa needed to build “a democracy where men and women can be at home,” there were a number of policy and legislative reforms aimed at addressing gender inequality which arose from pre-existing patriarchal structures in society and that were compounded by apartheid.280 The South African TRC also made recommendations to the media, the judiciary, and various other sectors, which “included a detailed set of recommendations regarding the promotion of a human rights culture, the need to address poverty and crime, accountability by the state, and improvements in the health sector, prisons, the justice system, policing, and many others.”281

Women in local consultations stressed the importance of revising laws, such as the Thesawalamai and Muslims Marriage and Divorce Act, so they are no longer discriminatory against women.282 Further, discriminatory administrative rules against women who were associated with the LTTE should similarly be reformed, and the Office should make recommendations to this effect. For example, the Office must recommend changes to the administrative system to enable former LTTE women cadres to retrieve personal documents such as identity cards, birth certificates, and educational documents.283 In local consultations, former women cadres also emphasized that they’d like to receive educational accreditation for education that they completed under the LTTE’s system, in order to continue their education or seek employment on the basis of their educational qualifications.

(2) Structural

In order to address societal discrimination, it is first necessary to address structural discrimination within government institutions. In its recommendations for policy reform, the Office should recommend that current social protection schemes be reformed so as to include programming that is gender-sensitive and that sufficiently takes into account the different experiences of men and women.284 Any new social protection scheme should reflect women’s reality as both primary caregivers and breadwinners and ensure adequate services on that basis. Further, the Office must make recommendations with respect to gender parity in local and national government appointments in all areas of government including justice, defence, and policy-making.285

Additionally, as emphasized in previous sections, strong witness and victim confidentiality and protection is essential to the functioning of many government programs, including each of the transitional justice mechanisms. Thus, amendments to the Victim and Witness Protection Act are advisable, particularly to the extent that those who are tasked with protecting victims and witnesses are also implicated in the harms victims and witnesses endured.286 Thus, the Office should make recommendations in this respect, as well as other specific gendered aspects of witness protection.

e) Forms of Reparations

(1) Different types of reparation

According to the UN Basic Principles on Reparations, reparation programs should include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.287 In order to address the harms that women suffered as a result of the armed conflict and continue to suffer in the post-conflict phase, the Office on Reparations must employ a combination of these different forms of reparations, including legal and policy reform, construed through a gender sensitive lens.288 For example, the goal of restitution should not be to restore each female survivor to her original situation, as this would simply re-situate her on a continuum of discrimination and violence that she already experienced. This would fail to provide meaningful redress to women most affected by the conflict in the North and East.289 As expressed by UN Women, “guarantees of non-repetition have little meaning for women who continue to experience high levels of violence even after the cessation of formal conflict.”290 Thus, in order to make reparations work for women, the Office on Reparations must understand the position of women in society and their experience before, during, and after the armed conflict and construe each individual form of reparation with an understanding of this context.

(2) Compensation

When payments are distributed, they should also take victim’s access to compensation into consideration.291 If a woman does not have a personal bank account, and the money is deposited into the account of a family member, she loses control over the money and may not be able to access it. Additionally, as observed by the Centre for Policy Alternatives, “women victims in particular, who are given lump sum payments are likely to be pressured to give up the payments to relatives or to pay off family debt...interviews in the North and East suggest that the problem would likely arise in Sri Lanka.”292 As a result, the Centre for Policy Alternatives found that skills training and monthly pensions would better serve the function of compensating victims for harms they suffered and helping them achieve self-sufficiency in the long-term.293 Women in the local consultations also felt that the Office needs to consider whether compensation should equalize the losses of men and women or whether compensation should be based on the current needs of each individual to live with dignity.294

(3) Symbolic

The Office on Reparations should also establish a symbolic reparations program. These symbolic reparations should include public apologies, memorials, reburials according to local custom, and similar actions to be determined by the affected group. “By ensuring that these programmes are gender-sensitive and include the diverse roles played by women in a nation’s history—not simply portraying women as caregivers or victims—symbolic reparations can “be used to challenge dominant femininities and masculinities that are produced in times of armed conflict and in its aftermath.”295 An example of this is given by the President of Sierra Leone, who stated that the government “fell short in our obligation to adequately protect women from the brutalities of armed conflict,” and acknowledged that traditional and cultural practices in Sierra Leone grossly violated women’s human rights.296

Women in local consultations specifically noted the wish to have cemeteries of LTTE cadres, which were destroyed, rebuilt in the form of memorials at the location where they were originally buried.297 Further, women in local consultations stated that they need places where they can perform religious and cultural rituals for their loved ones as they wish, without any monitoring or control.298 They also expressed the need for current war memorials to be revised to reflect victims’ narratives as well.299 The same women in local consultations preferred memorials that are living memorial spaces, such as parks, which reflect healing and peace. It was discussed that Mullivaikkal should be a green space or a garden denoted for healing.300

(4) Collective or individual nature of reparations

A comprehensive administrative reparations program should also include a combination of individual grants as well as community reparations, preferential access to services, symbolic measures, memorialization efforts, and official apologies. For example, Guatemala’s reparations scheme covered not only economic reparations, but also psychosocial reparations, dignifying measures, and recovery measures to respect and honour Mayan culture.301

With respect to individual grants, UN Women observed “individual payments or grants can be very beneficial to women, providing resources that can be used to mitigate the impacts of past harms and also to further economic empowerment.”302 However, material reparations should be conceived in a way that recognizes the family and community power relations, in addition to the broader contextual factors.303 In so doing, it is important that the Office does not assume that men are the primary income earners in the household.304Women should be considered entitled to earn income at an equal level and be given reparations in the form of job training and access to job opportunities on an equal level as men.305 Additionally women should be entitled to compensation irrespective of their marital status. For example, if a war widow or a wife of a missing person has remarried, she should receive compensation to address the harm she suffered as a result of the loss of her husband.306 Further, women should be entitled to compensation regardless of the party to the conflict, she and/or her relatives were associated with.307

Often reparation programs fail to implement individual grants due to a lack of resources, leaving women with little reparations in the end. In some contexts, individual grants were supplemented by access to services. In Sierra Leone, for example, fistula surgery was offered among the reparations owed to victims of sexual violence. Additional services that could be provided to victims of sexual violence include: “support for children born of rape, access to abortions or adoption processes, provision of anti-retroviral drugs or other needed medications. Inclusion of access to services should be specifically directed at mitigating the actual harms of the violation.”308

Collective reparations can additionally supplement individual reparations and individual services. “The advantage of providing benefits collectively is that it allows for a broader universe of beneficiaries, particularly in contexts where the violations were numerous, geographically focused or identity-based, or where regions of a country were deliberately underdeveloped or marginalized with regard to state benefits as a cause or consequence of the conflict.”309 For example, in Morocco, reparations were provided to communities where secret detention centres were located, as these communities had been collectively excluded from economic and social benefits “in an effort to marginalize and isolate them and thereby preserve the secrecy surrounding the detention centers.”310

In the decision whether reparations should be communal or individual, women in local consultations expressed the preference to be able to collectively come together and decide.311 Thus, in order to decide whether and what collective reparations are appropriate, consultations with local communities are crucial, especially in reflection of the diversity of the needs of the various communities in war affected areas.

It is also important that collective reparation programs also address past marginalization and power relations within a community.312 For example, women who are marginalized within their communities, may be deprived of access to collective reparations by their communities. Thus, it is not only important to consult with communities as a whole, but also factions within communities who may be marginalized within the community. Former rehabilitated female LTTE cadres, who tend to be stigmatized in the community, for example, requested the opportunity to join the police force or civil service on a priority basis, as one form of reparations.313

Finally, given that the Office on Reparations will be operating in a space where a multitude of actors are attempting to provide services, it should ensure that its measures are not duplicative, fill an actual need, and link with services already being provided. For example, past NGO programs in Sri Lanka gave sewing machines to victims, in an area where textiles were not needed, and therefore, these programs had little effect in improving the lives of the women survivors.314

5. Conclusion

Although the Office on Reparations has the potential to provide meaningful and transformative redress to women survivors of the conflict. A unique understanding of women’s experience of the conflict and their current situation in the post-conflict phase is essential and can only be provided by the women in the various communities themselves. Any reparations that are provided must not only provide financial compensation but also address a complex set of needs through legal and policy reform that addresses embedded structural and societal inequalities that stem from discrimination against women. Although the current administration has taken some measures in the right direction, it is not enough to create agencies and make promises if these actions are not implemented in practice in a timely fashion and do not provide any meaningful redress as women seek to move forward.

VI. Conclusion

Each of the sections above provides a general overview of best practices applicable to gender-sensitivity in transitional justice and represents a starting point for the design and implementation of gender-sensitive transitional justice mechanisms. Each of the mechanisms explored above is essential in providing a different aspect of truth, justice, accountability, and redress. However, these four mechanisms do not represent the only transitional justice mechanisms planned in Sri Lanka, nor are they the only measures required to make transitional justice effective in the country.

As the foregoing pages hoped to show, gender-sensitivity in any mechanism begins with the inclusion of women in the process from start to finish and at all levels of organization. It involves the removal of barriers to participation of women from all communities, requires the gender-sensitive training of all staff. Finally, it would involve the cooperation and consultation between the various mechanisms, civil society, and the international community. It is hoped that this report will be used as a springboard for further discussion and consultations between government authorities and civil society, as each holds part of the reigns in making transitional justice a success in Sri Lanka.

If there is only one take-away from this report, it is simply that women’s participation in the transitional justice process from start to finish is not simply a nicety, but an essential element in a successful transitional justice process. This has been shown time and time again. Looking at transitional justice through a gendered lens necessitates a different mode of thinking and a creative way of approaching problems. This just might provide some of the answers needed to foster true and lasting reconciliation and peace.

Annexure 1: Main Recommendations from SACLS/WAN Consultations

A. Overarching Observations

Beginning in early 2016, the Women’s Action Network (WAN), jointly with other women’s groups and collectives, conducted trainings, interviews and focus group discussions with survivors and women’s rights activists in the North and the East to hear their views on the four proposed transitional justice mechanisms: the Office on Missing Persons, the Commission on Truth, Justice, Reconciliation and Non-Recurrence, the Judicial Mechanism with Special Counsel, and the Office on Reparations. This was at a time when women’s groups throughout Sri Lanka were appearing before the Public Representations Committee (PRC) to express concerns regarding existing structures of discrimination, inequality and marginalization enshrined in the constitution.

Through WAN and other women’s networks, 53 activists and 61 survivors of various forms of violence were consulted via individual interviews, focus group discussions and workshops in the North, East and border villages. These consultations looked at each of the proposed transitional justice mechanisms and identified ways in which women’s ideas, concerns, and recommendations could be incorporated into the planning process of these mechanisms. Many expressed the view that the proposed transitional justice mechanisms could be used as a tool to challenge the structural causes of gender inequality, not only by making state and non-state actors publicly acknowledge abuses and violations, but also by offering gender-specific recommendations as to each transitional justice pillar.

The consultations explored the following questions:

1. What does justice mean to women affected by the armed conflict and related violence?
2. What have affected women and women’s groups learnt from their efforts to demand justice through currently existing mechanisms? How can these lessons learned be captured into any special mechanism(s) that would be established as part of the transitional justice process?
3. How do affected women and women’s groups perceive the justice processes suggested to date in terms of their capacity to deliver gender justice?
4. How can transitional justice structures and laws be designed (both procedurally and substantively) to account for and remedy existing gender inequities?
5. What demands do affected women have for social justice, in addition to formal justice/accountability?
6. How can transitional justice create social transformation, beyond political and constitutional reforms?
7. What is the gendered impact of various violations experienced by affected women?
8. For what kind of violations do women seek redress and through which mechanism(s)?
9. How do women see the debate on transitional justice composition (local, hybrid and international)?
10. What best practices can be drawn from women’s groups in other countries engaging with transitional justice structures?

The following conclusions were reached from the consultations and provide the background underlying the principles for recommendations advanced in this report:

● Women are victims of all forms of violence and crimes, not solely sexual violence. Overemphasizing wartime sexual violence risks ignoring women who have suffered mass atrocities apart from rape.
● Transitional justice must look beyond war-related atrocities to create unity and equality.
● Transitional justice should create social transformation by addressing structural inequalities (including the culture of impunity for violence against women and immunity of men in power) and traditional disparities.
● Although transitional justice is often reduced to political, constitutional and legal reforms, women seek social reforms. Social justice acknowledges the multiple truths of the conflict.
● Women seek transformative justice, beyond transitional justice. They see transitional justice as a long-term process of political, economic, social and cultural transformation.
● At every level of each transitional justice mechanism, women should be given equal opportunities in decision-making processes, ensuring that their participation is not reduced to the symbolic expression of concerns (or victimhood), especially in male-dominated settings.
● In order to meet human rights obligations, all transitional justice processes must include accountability mechanisms that are accessible to both men and women. Such mechanisms must pay attention to gendered power relations and differences, which may discourage women from voicing their concerns or lodging complaints.
● While devising transitional justice mechanisms, the State must be mindful of the heterogeneity of women’s experiences of armed conflict and consider the intersectionality of gender, race, caste, religion, region, class etc. and the varying levels of influence each of these factors could play.
● All mechanisms should be adequately funded and staffed. Victims and witnesses must be able to receive adequate and timely access to quality professional psychological and medical treatment and counselling services, either internally or through referral procedures.

B. General Recommendations
1. Office on Missing Persons Recommendations

1. Urgent Actions

1. Before the OMP begins its work, all arbitrary and unnecessary surveillance must cease and all surveillance structures must be disbanded.
2. The Prevention of Terrorism Act (PTA), which decriminalized disappearance by allowing the Terrorism Investigation Unit (TID) to arbitrarily arrest, torture and detain people for unlimited periods, must be repealed.
3. Disappearance must be criminalized in accordance with Sri Lanka’s obligations under the International Convention for the Protection of All Persons from Enforced Disappearances.

2. Data Collection, Analysis, and Public Record Accessibility

1. Data that has been collected by previous commissions that investigated the fate of missing and disappeared persons should be immediately and completely transferred to the OMP. Investigations by the OMP should start on the basis of such information before reaching out to family members who have told their story to government bodies on multiple occasions.
2. Information and reports transferred to the OMP must be made publicly available, with provisions of confidentiality being construed as narrowly as possible. Access to information should be granted with a focus on easing the emotional burden of those affected and recognizing issues of access that they may face.
3. Information about the disappeared should be entered into an electronic system so that it can easily be checked for duplication, recalled, and analysed.
4. Statistical information regarding how many people are in detention, how many have been released and how many have been disappeared should be made publicly available.
5. Perpetrators of enforced disappearances should be investigated in accordance with the victim’s wishes, regardless of whether the perpetrator or the fate of the victim is known or unknown.
6. Staff members should ensure the privacy and confidentiality of all communications and testimony submitted on the condition of confidentiality.

3. OMP Office Accessibility & Inclusivity

1. The OMP should exercise its rights to establish regional offices so that every affected person can have access to the OMP, regardless of where on the island they reside. In this regard, the OMP should take into consideration the access of victims to public transportation.
2. All services should be provided in the language of the survivors.
3. Additionally, all facilities must be accessible to those who are physically challenged.

4. OMP Independence and Oversight

1. Disappeared families’ right to truth must be at the centre of OMP’s operations. It must regularly update the families on its progress and findings, and continuously engage with families of the disappeared in a transparent manner in their own language.
2. The OMP must ensure that it executes its functions in a manner that is both independent and impartial.
3. OMP staff should be carefully vetted to ensure that they are trustworthy and do not have any prior record of harassment, intimidation, or violence. They should be persons who can be trusted to protect the privacy and confidentiality of all communications, testimony, and data. They should be known for their neutrality.
4. There must be an independent group consisting of local and international experts that monitors the OMP’s work.

5. Cooperation with Judicial Mechanism and Independent Reparations

1. To prevent repeated traumatization, individuals should not have to repeatedly recount the same stories, or provide the same evidence, within different division of the OMP or to different transitional justice mechanisms. Thus, effective cooperation and information-sharing mechanisms within the OMP and between transitional justice mechanisms should be established.
2. Where there is evidence of the commission of a crime, evidence in the OMP’s possession and its investigation should be referred to the judicial mechanism or a special prosecutor’s office. Confidential information should be made available to the prosecutor. The OMP must gather and preserve evidence that would be deemed admissible in a court or judicial proceeding, to the extent possible, without limiting the information that it considers in its investigation.
3. The OMP should cooperate with the judicial mechanism, in order to facilitate accountability of perpetrators based on evidence already produced by the families and through its own independent investigations.
4. The OMP should allow a prosecutor to accompany investigators and to track investigations alongside OMP staff.
5. Information gathered by the OMP should be linked and should facilitate prompt and direct reparations. Victims should not be required to go to a different organization of their own initiative to obtain reparations.

6. OMP Member Characteristics

1. OMP members should be empathetic to the families of the missing and to their mental well-being.
2. They must be dedicated, trustworthy, and experienced in work relating to enforced disappearances and missing persons.
3. OMP members should know the geography, the languages of the victims and survivors, and the history of what happened in those areas.
4. No OMP member should have ever been accused in a court of law of violating the law or of any form of violence or have a court case pending against them. They must carry a reputation of neutrality and good conduct.

7. OMP Public, Financial, and Social Services

1. Victims and witnesses should have adequate support and security mechanisms. Security involves not only the physical safety but social security as well. People who come forward to give testimony should be afforded protection even within their communities.
2. The OMP should provide financial assistance in order to enable people to access its services.
3. Job assistance, particularly in relation to the public sector, should be recommended as reparations.
4. Education assistance for children of missing and disappeared persons should be recommended as reparations, including through scholarships, preferential school admission, and/or admittance through university quota systems.

8. Certificates of Absence

1. Certificates of absence should recognize the next of kin as well as arrangements of cohabitation.
2. Certificates of absence should also have the option to be called certificates of enforced disappearance.
3. The OMP should assist relatives of the deceased in proving their relationship to disappeared persons and securing identity documents required to access social security benefits, inheritance, and property title and allow relatives to formalize new relationships.

2. Commission for Truth, Justice, Reconciliation, and Non-Recurrence Recommendations

1. Consultations and Preparations

1. Before the commission begins its work, there should be an environment/space conducive to open discussions and consultations regarding the design of the Commission. Families should additionally be consulted and informed about the structure and procedures of the Commission before it is established.

2. Security Measures and Community Atmosphere

1. While the Commission is executing its mandate, it is very likely that there will be significant community tension and unrest. The Commission should anticipate this and make arrangements to curb such tensions from the outset and throughout the process. For example in the North and the East, the Commission’s proceedings may aggravate current tensions between the Tamil and Muslim communities.
2. The truth commission should offer protection, respect, confidentiality, and foster trust.
3. The truth commission should provide a welcoming atmosphere. People should not be afraid to testify, in contrast to the Paranagama Commission and other commissions of inquiry. There should not be security guards intimidating and harassing victims and witnesses.
4. Protection for victims and witnesses should start from the beginning of the design process and continue until the end of implementation of the Commission’s mandate.
5. When somebody from within the victim community comes forward to talk about larger-scale abuses, that person may come under attack by various social forces and will need protection. A security expert should be in charge of protecting the person concerned, and responsible for analysing the general security conditions from time to time. Protection should be immediately available.
6. At present, there are many surveillance structures (CID, TID, even social media) that are used to intimidate people and distort issues, all of which prevent people from coming forward to relay their experiences. The commission should create an environment conducive to truth telling; if not, few will testify.

3. Commission Mandate

1. The commission must strive to promote coexistence and inter-community harmony.
2. The Commission must first examine root causes of the war and of mass atrocities that took place. While other mechanisms may consider justice and remedies for the mass atrocities that took place, the truth commission must work in parallel to these other mechanisms on addressing the root causes of the conflict.
3. The commission’s mandate should be simple and explained in local languages so that people understand it.
4. There are inter and intra-community tensions between religious sections and extremism has been growing. The truth commission needs to focus on this aspect as well.

4. Commission Working Methods

1. Staff members of the truth commission should function in a cohesive, cooperative, and connected manner with each other and with other transitional justice mechanisms. At present, there are different bodies addressing unity, reconciliation and transitional justice, with each doing its own work. This confuses affected people and reduces participation.
2. The commission should be transparent about the steps and processes it will take to assure and maintain confidentiality.
3. Witnesses who have not lost family members or loved ones, but who have witnessed abuses and serious violations of IHL and IHRL should be able to testify before commission.

5. Accessibility & Inclusivity

1. The commission should be a decentralized body. It must have fully staffed offices in areas where human rights violations took place, not solely in Colombo.
2. A disability friendly space should be created in terms of access to materials, hearings, toilet facilities, transportation and wheelchair access.
3. Those who need it should be provided with emotional and medical support.

3. Judicial Mechanism Recommendations

1. Format of the Special Court

1. The Special Court must be a hybrid court with foreign judges and prosecutors with experience in IHL and IHRL violations.
2. The Special Court’s location is very important in relation to access. Ideally, the Special Court should either be mobile or decentralized. Prosecutors and investigators must be able to travel to places where victims or witnesses live or where mass atrocities took place. If it is going to be one centralized court in Colombo, it should provide witnesses and victims safe accommodation facilities and transportation.

2. Security Measures and Documentation

1. The Special Court should be fully victim-centred and safe. The dignity of each individual who comes to testify should be protected.
2. It is critical that victims and witnesses be approached in a respectful and non-judgmental manner and in an environment where they feel safe to reveal information, without fear of intimidation, reprisal, stigmatization, or sanction.
3. International protection must be given to persons who come forward to testify and give evidence. Testimony and evidence should be preserved in Sri Lanka and also outside of Sri Lanka, to prevent destruction and tampering by the government. The international community should closely monitor the work of the Special Court.
4. There should be assurances of reintegration or safe passage when there is community and other forms of retaliation against those appearing before the Special Court or associated with the Special Court.
5. The Special Court should provide a space for victims and witnesses to testify confidentially.
6. The Special Court must protect the identities of victims and witnesses, to reduce the risk of re-traumatization or ostracism.

3. Working Methods

1. The Special Court proceeding must be in the victims’ language. If simultaneous translation is needed, such translation must not interrupt the victim’s flow of communication or mask the emotions in their testimony.
2. There should be a designated period for investigation. Investigations and proceedings should be as expedient as possible. Prosecutors and court staff should be transparent about the reasons for any delay. The Special Court should foster trust in the witnesses by expediting the judgments and verdicts.
3. The Special Court should investigate everybody who has been accused of committing mass atrocities against the civilian population, such as: the military, the LTTE, the State, politicians, and paramilitaries.
4. The judgments of other international tribunals regarding war crimes and mass human rights violations should serve as precedents for the Special Court.
5. The Special Court should investigate corruption and bribery, including sexual bribery as well. For example, sexual bribery can be investigated as a crime against humanity or as the war crime of torture.
6. The Special Court should also investigate the buying and utilization of weapons of mass destruction and banned and out-dated arms.
7. There should be a trust fund for medical treatment especially for the war injured. The Special Court also should provide assistance to the physically challenged to obtain devices and equipment (hearing machines, wheelchairs, prosthetic limbs, spectacles, etc.) as part of compensation.

4. Office on Reparations Recommendations

1. Inclusivity and Accessibility

1. The reparations office should be located in an easily accessible place near public transportation.
2. It also should be people-friendly and should have all basic facilities that people need.
3. It must provide free translation, communication, endorsement, photocopying, legal and technical services.

2. Working Methods

1. The office must take recommendations from other transitional justice mechanisms; however, the assessment of losses should be the principal responsibility of the reparation office.
2. The office should have concrete and accurate data relating to the cost of various forms of losses and damages associated with the armed conflict. The office should assess compensation for various types of damages, for example: the cost of damages to property, a compensation policy for the loss of life, the cost of damages resulting from disability, the cost of treating injuries, and the damages that result from the number of people detained and disappeared and the length of their absence.
3. There should be a mechanism to appeal the figures generated by the office and this mechanism should allow alternate documentation. For example, a newspaper article on land grab should be able to establish land ownership in situations where original deeds have been destroyed or lost.
4. Communal reparation can be formulated based on political notions, however the decision to implement such reparations, on a collective or individual basis, must come from those affected.

3. Form of Reparations

1. Reparations should go beyond financial compensation, in recognition that a person’s life cannot be valued in terms of money alone.
2. Forms of reparation should include access to natural resources, commons, and housing, as well as land for agriculture, chena cultivation and home gardens. Reparations should also include subsidies and the revival of rural economies, in addition to access to the market and modern technology. Dams and waterways need to be renovated and the coastal belt needs to be cleared of security forces. The pass system imposed on fishing needs to be abolished.
3. Administrative assistance should be provided in revising and acquiring all legal documents that may have been lost or incorrectly recorded as a result of the armed conflict. Legal documents, such as land deeds, should be revised to reflect accurate information. Lost documents should be reissued, including marriage certificates and land certificates and deeds. Deeds and documents issued by the LTTE should be modified to reflect correct information and reissued.
4. Reparations should include access to employment and access to better health and educational facilities. The education and vocational training programs should be revived, including special education and skill development classes.
5. Interior, structural, and infrastructural development should be included in reparations.
6. People should receive compensation for lost property where the military or police have confiscated private land. In some cases, military camps and police stations have been constructed on private land or in private dwellings. A fair market rent should be paid for the time occupied and such land and buildings must be released to the owner.
7. The existing social security system—Samurdhi—should be revised as the amount given is very minimal and is not being provided to everyone in need. The Office on Reparations does not need to devise a new system; it can instead revise the Samurdhi scheme to reach those affected by the armed conflict and provide an increase in the amounts provided in order to meet today’s cost of living.
8. The reparations office should consider how the younger generation that has lost its childhood and only seen violence and war. This generation can play a role in resurrecting peace within and between communities.
9. The fund utilized for reparations payments should come from the government, the diaspora, and the international community.
10. Institutions that incited or acquiesced to violent incidents; or that didn’t ask questions or fulfil their duties, should be revised in the reparation process as part of the guarantee of non-recurrence.
11. There are community members who prefer not to remember the past because atrocities committed were so gruesome and they don’t want to keep reminding another generation. Memorials should also respect the wishes of persons who do not want to remember past violence and animosity towards other communities.
12. All communities should be involved in the reparations process and there should be a reparation process between communities. It should not only be the State’s responsibility to provide reparations. For example, where there are mass graves of Muslims or Sinhalese killed by the LTTE, the Tamil community may feel insecure if such graves are opened for investigation. The reparations office should facilitate inter-community dialogue to promote the rights of all communities to truth, justice, and redress.
13. People who have been affected by war and have become physically disabled, particularly those that have been rehabilitated and are coming back to live in the community, should receive access to proper medical treatment, health facilities, security, livelihoods and counselling. Their security should be ensured, and their reintegration should be methodically completed. At present they are being isolated because of their involvement with the LTTE and are under continuous surveillance.
14. Physically challenged people should receive compensation and access to employment, including the policy changes that would allow access to employment.
15. The LGBTQ community should be considered in the reform processes that are part of reparations. In particular, transgendered people should have their gender identity listed on their identity documents. For example, a trans-male should be able to list her gender as female.

C. Gender-specific Recommendations
1. The Office on Missing Persons

1. Gender Parity of OMP Members and Staff

1. The OMP members, staff, and investigators should be comprised of 50 per cent women.
2. OMP translators who interact with women, should also be women.

2. Gender-Sensitivity and Oversight

1. All OMP members must be trained in gender-sensitivity and how to deal with gender-specific issues, in recognition that most survivors who will engage with OMP are women.
2. If OMP members behave insensitively towards women or have a complaint filed against them regarding unfair treatment, immediate corrective action should be taken,
3. including the removal of the member from official power. A complaint procedure within the OMP should be set up for this purpose.
4. If the OMP is not sufficiently responsive to the needs of victims or the women with whom it interacts, then the office should be flexible enough to make adjustments to its working methods in order to accommodate gender-sensitive reforms.
5. The work of the OMP should be transparent and easily observable by outside groups of women observers, in recognition that women have been the primary activists on behalf of the disappeared and missing persons. The OMP should be responsive to the recommendations of outside observers.
6. OMP members should engage in regular outreach to women throughout its work, recognizing that outreach and consultations are to take place throughout any well-designed transitional justice process.

3. Social Services

1. The OMP should provide security to women who engage with it.
2. The OMP should provide specific psychosocial and physical help to women who are the survivors of a missing loved one. The assistance should be available throughout the processes, from initial engagement to clarification of a case, including through the identification and reburial of remains.

4. Reparations, Certificates of Absence, Death Certificates and the Private Sector

1. The OMP should recognize women, and relatives of the missing or disappeared, as the direct victims and reparations should be made on this basis. It should recognize the role played by women as primary breadwinners and caretakers of their families since the disappearance of their husbands or sons or fathers.
2. The OMP should consider that in the past, women have been forced to take death certificates. It should recommend that such women be given the option of exchanging such death certificates for certificates of absence or certificates of enforced disappearance.
3. Any certificate must be optional, and women should be given full details of the consequence of accepting a death certificate, certificate of absence, or certificate of enforced disappearance in advance. The title of the document should have no impact on engaging with the OMP or accessing benefits and services.
4. The OMP should facilitate the acknowledgment of the certificate of absence by the private sector as well and make a public announcement of the validity of a certificate of absence so that women can access their husband’s bank account, properties, pension, gratuity/EPF/ETF, subsidies and welfare payments and life insurance. It should also be recognized for the purposes of mortgages, loans, bonds and leases.
5. The OMP should recognize relatives of disappeared persons as eligible for reparations, including by recognizing equality among all claimants who can prove dependency and violations inflicted during the search for disappeared loved ones.
6. The OMP should recommend policies that overcome the gendered impact of enforced disappearances and structural disadvantages faced by many girl children victims and their mothers.

5. Treatment of Harassment, Intimidation, and Bribery, including Sexual Bribery

1. If a woman accuses a particular military commander or government official of abuse, the OMP should be able to inform her that this person is being investigated, and they should protect her identity. She also should be able to observe or hear directly from the OMP about the progress of such investigation.
2. In recognition that many women have been subject to gross harassment, intimidation, and unlawful detention for demanding justice while searching for their missing relatives the current government must acknowledge this insult and punish perpetrators. Any surveillance structures that facilitate intimidation tactics and surveillance of complainants should be ceased immediately, disbanded and/or repealed, including the PTA.
3. A few women talked about being forced into giving bribery (including sexual favours) to find out the whereabouts of their surrendered and missing family members. Any sums paid to a public official or paramilitary group member should be returned to them. The OMP should make such a recommendation on their behalf.
4. The OMP should refer such sexual bribery demand cases to the bribery commission, and ensure that those complaints are properly investigated, and the accused is severely punished.

2. Commission for Truth, Justice, Reconciliation, and Non-Recurrence

1. Safe Spaces, Security, and Encouragement

1. There should be encouragement for women to come forward, testify, and to tell the truth. Fear and threats should be minimized. Every individual woman who is coming forward should be guaranteed full confidentiality and protection. Sometimes women may prefer a private space to testify and a confidential truth-telling process.
2. Gender-based discrimination and disparities have to be taken into consideration when women come forward to testify. The commission must be mindful of social stigmatization and cultural repercussions. There should be special safety measures to combat such concerns.
3. The current Witness and Victim Protection Act and the protection authority are not something that women see as providing the security they need.

2. Commission Mandate

1. The truth commission should focus not only on sexual violence in relation to women but also all other forms of gender-based violence. The commission needs to recognize women’s multiple sufferings and give them equal opportunity and a friendly environment to talk about such sufferings.
2. The truth commission report should have a specific chapter on the issues women faced, their experiences and their demands for justice. There should be specific recognition of women’s multiple sufferings and multiple truths.
3. Women’s economic losses must be recorded.
4. In relation to guarantees of non-recurrence, women should be consulted on the issue of security-sector reform so that the military comes to understand what women consider as security.
5. Transitional Justice processes must be victim-centred both in design and implementation. A process that is overly formal and legalistic may shut women out of the process and perpetuate gender inequities.

3. Commission Working Methods

1. When translation is done for female victims’ oral statements, the translator should not only translate the language but also convey their physical body language, agony, and emotions.
2. Apart from oral statements, other forms of documentation and evidence that women have in their possession should be accepted and preserved by the Commission. The Commission should provide copies of their documents and a receipt indicating the date of their submissions.
3. There should be a code of conduct that ensures that staff members are gender sensitive. Members should not have any prior criminal record, particularly charges of sexual bribery, domestic violence, or sexual harassment.
4. Members of the commission should be able to communicate in the survivor’s language.
5. There should be a separate unit to collect women’s stories and testimonies within the commission and there should be an earmarked budget for it. Diaspora women should also be able to record their stories of displacement, loss, and suffering. The Commission should be able to travel abroad and hear women’s testimonies (especially in relation to torture and rape).
6. Women should be able to collectively testify as a community and in-groups.
7. All obstacles that may prevent women from testifying, such as the financial burden, lack of transportation, ill health, emotional issues, disability and the lack of childcare must be considered in designing the structure and process of the Commission.
8. Information/data that has been gathered should be disaggregated. There should be a gender-specific analysis of that data. Based on such analysis, women’s demand for justice, reparations and non-recurrence must be envisioned.
9. If specific complaints or recommendations come out of women testifying, there should be a special effort to implement those specific complaints or recommendations.
10. Women should be permitted to express their emotions, even if they break down and cry. A space and time for that must be given.
11. There should be a designated budget within the truth commission for the purpose of promoting and encouraging women to write their experiences of war and the truth, and to publish their stories.

4. Commission Composition

1. The commission should be composed of 50 per cent women. There should be balanced representation of women in these structures. Male members should have gender-specific knowledge and gender-sensitivity trainings. The truth commission should recruit women from affected communities to be part of their staff.
2. The Commission must not be comprised of religious leaders only. It is not appropriate for only the clergymen to sit and hear women’s suffering. Authorities must be sensitive to the key role religious leaders have played in dividing communities.

3. Judicial Mechanism with Special Counsel

1. Composition of the Court

1. The Special Court should appoint 50 per cent international experts who are women and who have experience in women-specific prosecutions.
2. The Special Court should have 50 per cent female representation, including prosecutors, judges, lawyers, staff members, investigators, registrar, etc. The entire staff should receive gender-sensitivity training.
3. The Special Court should retain the service of an expert gender adviser (probably through the UN system) who could give technical input with the legal and broader psychosocial aspects of sexual violence.
4. There should be an experienced prosecutor with the necessary resources to investigate sexual violence (rape and sexual torture) against women, including women from the diaspora who have survived such abuses.

2. Format and Services of the Special Court

1. The Special Court should be divided into two sections: one for all crimes and another specifically designated for sexual and gender-based crimes committed against both women and men.
2. There should be a separate counselling unit with female counsellors who are sensitive to the experience of victims of sexual and gender-based crimes and understand other gender-specific aspects of counselling.
3. The Special Court should also have a special unit for psychosocial counselling with a medical doctor on call.
4. The media should be restricted when reporting on certain cases involving sensitive witnesses. Proceedings should be undertaken in a gender-sensitive manner and reported sensitively.
5. The Special Court has to give women special protection—including physical protection—and there should also be protection mechanisms to secure their information and protect their identities (sometimes even from their family members).
6. There should be also protection for the families of women who testify of sexual violence and any other supporting witnesses.
7. Pregnant women and women with children should have special facilities, particularly separate toilets, rest rooms, and reasonably priced canteens. Sometimes in court, women don’t even have access to drinking water or to toilet facilities. Women who are feeding should have access to feeding facilities and breaks, as needed.
8. Those who are physically challenged should also have access to the Special Court. Breaks should be given as needed. There should also be access to braille and sign language facilities.

3. Mandate of the Special Court

1. The Special Court should investigate and prosecute sexual violence as a war crime and as a crime against humanity. It should also consider other IHL and IHRL violations suffered by women as a consequence of the war.
2. The Special Court should also investigate how the war was waged, such as: what were the reasons behind it? What were the consequences? There should be specific incidents that are investigated, including sexual violence against women: how it has been committed, and how it has systematically targeted a particular community. The Special Court should examine the emotional and social impact of torture and violence as well.
3. The Special Court should also make recommendations to the Sri Lankan government and judiciary, regarding various discriminatory laws. Recommendations should include equal access to justice and the incorporation of international standards and best practices regarding violence against women into domestic law. The Special Court should also incorporate CEDAW rights, IHRL and IHL norms.
4. Any form of penetration or sexual torture should receive the same punishment as rape.

4. Working Methods

1. All members of the Special Court should approach victims with empathy.
2. Sexual violence during the conflict has been well documented, and the OISL report acknowledges that women and men have been raped and sexually tortured in detention. To investigate sexual violence-related crimes, the Special Court will need to train its investigators and prosecutors on the legal and practical challenges, including the need to overcome pre-conceived notions and attitudes about sexual violence and their cultural and gender biases.
3. Cultural sensitivity, confidentiality and victim support, both emotional and financial, must be central to the unit that will investigate sexual violence.
4. Re-traumatisation of victims and witnesses should be prevented. In order to do so, pre-existing testimonies, pending court cases and documentary evidence and testimonies of experts (JMOs, councillors, doctors, psychiatrists, women rights activists, community mobilisers and NGO workers) should be used to establish patterns and systems of sexual violence.
5. Special Court officers must be prepared for hearings and interviews. Women should not be called before the Special Court repeatedly to provide the same information.
6. The interview should not be humiliating and women should not be subjected to interrogations. The witness should be given regular breaks and access to a trained counsellor or her accompaniment.
7. Women’s testimony should be fully recorded. Currently, it is selectively recorded. Women should be allowed to give their full story. The space, timing, language, and manner of translation are important and should be given due consideration. Women who testify should not be stopped for translation or questioning, which can interrupt their thought process and emotional expressions. Women should be provided with the transcripts of their testimony.
8. Given the nature of the cases before the Special Court, it should be empowered to evaluate evidence with sensitivity. For example in complicated cases such as sexual violence, mass atrocities, systemic violence, gang-rape etc. women’s testimony should not be impeached on the basis of imperfect or inconsistent recollections. Similarly, women’s testimony should not be impeached because rape evidence has been destroyed or is deemed inadmissible evidence. The Special Court and/or the Special Prosecutor ought to be empowered to charge sexual violence as torture or as a crime against humanity.

4. The Office on Reparations

1. Inclusivity and Accessibility

1. The Office staff should consist of 50 per cent women, including from the top rank to the bottom rank.
2. A code of conduct of officers should be publicly displayed. This public display should list bribery, details of a complaint mechanism, and the punishment for bribery. It should specifically discuss sexual bribery.
3. The Office should be a district-based office with local personnel who belong to the communities. It should function in all three languages. The Office should also be staffed with affected people.

2. Working Methods

1. Women’s needs and their status should be prioritized in reparations. When women approach any transitional justice mechanism, sufficient financial, psychological, and physical assistance and sufficient security, transportation, and legal services should be provided by the State.
2. In determining whether reparations should be communal or individual, women should be able to collectively come together and decide. It should be a women-led decision.
3. The Office should consider the basis on which compensation should be given; for example, whether compensation should equalize the losses of women and men or whether compensation should be based on the current needs of each individual to live with dignity.
4. The Office should not assume that men are the primary income earners. The Office should regard women as equal income earners and give them equal access and opportunities to establish a sustainable livelihood or paid work.
5. This Office also should learn from non-governmental organizations’ and women’s groups’ experience and knowledge.
6. A woman who has been victimized should be compensated irrespective of her marital status. If her husband went missing, and she married another person, she should still get compensation for her missing husband.
7. Reparations should include the amounts that women spent looking for their family members. Their time spent searching and their deteriorating health and mental status should also be taken into consideration in awarding any form of reparation.
8. Wives and mothers of LTTE cadres who died should also get an equal form of compensation. By focusing on each family’s loss, rather than whose side their loved one was on, reparations may better heal communal divides.
9. Reparations should also consider the multiple impacts that the war has on women. For example, a woman had a brother who joined the LTTE and another brother who was jailed. As a result, her mother died and she, at the age of 19, had to look after the family and give up her university education. She should have all these elements taken into account in the calculation of reparations. These are a series of struggles, and in many families, especially the young women have been deprived of education due to displacement, male family members’ death, and war-induced poverty.

3. Form of Reparations

1. The reparations office should ensure that the current social protection schemes are reformed and any transitional justice related social security program is devised, implemented and monitored by taking into account the difference in experiences between men and women. It must ensure that any reparation and compensation program that is introduced or reformed as part of the transitional justice process, addresses women’s specific needs. It must also factor in women’s roles as primary caregivers and breadwinners, as well as the differences between men and women in access to services and productive work.
2. At the local and national level of state appointments, women should be represented in equal numbers. When new appointments are given for grama sevaka, justice of peace, mediation board, development and welfare officers and other community level appointments, women should be considered on a preferential basis.
3. As part of the reparation process, discriminatory laws should be revised, especially the Thesawalamai and Muslims Marriage and Divorce Act. The legal and justice system should be strengthened and must be made to function fairly and efficiently since most of these institutions are currently gender insensitive and discriminatory.
4. Reparation programs must recognize the need for women’s equal representation in public office, policymaking, and justice, defence and security institutions. Men who are in these institutions should be gender-sensitive, and must undergo gender and women’s rights training.
5. Rehabilitated women LTTE cadres and associates should have access to formal documents like identity cards, birth certificates and educational documents. Many have lost all the documents needed for obtaining jobs or continuing their education. The separate identity cards for rehabilitated cadres should be eliminated. If women have obtained any qualification through LTTE educational and vocational training structures, they should be given an opportunity to get trained further in the same line of education or vocation and the government should grant them certificates of such qualifications.
6. Former rehabilitated female LTTE cadres should be given the opportunity to join the police force or other civil services on a priority basis.
7. Widow and single-women pensions should be introduced with a monthly allowance that matches the current cost of living.
8. Memorialization, whether a remembrance day or a monument, should consider women’s concerns and demands. Many LTTE martyrs’ cemeteries have been destroyed, but women want them recreated to mourn their children, brothers, and husbands. These memorials do not need to resemble the LTTE built martyrs’ cemetery, but they should find some way of denoting each of those killed in the war. They have to be built exactly where those killed were buried.
9. Current war memorials honouring Sri Lankan military and celebration war victory should be removed or modified to reflect victims’ narratives as well.
10. Women need places where they can perform religious and cultural rituals for their loved ones as they wish, without any monitoring or control. Memorialization should be at a distinct, common place, such as a bus stop, a beach, or a park. Women should be consulted regarding the establishment of a day to commemorate the dead, as that would have implications for how the surviving women mourn and perform rituals.
11. Women want living memorial spaces (i.e. trees, birds, water ways), as healing and calm spaces. They want Mullivaikkal to be a green space and a garden of healing.

End Notes

1. For Human Rights Council resolutions and reports on the Investigation on Sri Lanka, see http://www.ohchr.org/EN/HRBodies/HRC/Pages/OISL.aspx.

2. See generally, From Words to Action: A Roadmap for Implementing Sri Lanka’s Transitional Justice Commitments, South Asian Centre for Legal Studies (17 February 2016).

3. See, e.g., Women’s Action Network, Suggestions on the Proposed Office of Missing Persons, Letter to Consultation Task Force Members (5 July 2016).

4. Final Report of the Consultation Task Force on Reconciliation Mechanisms Vol. 1, 88-89 (17 November 2016).

5. Vasuki Nesia, et. al., Truth Commissions and Gender: Principles, Policies, and Procedures, International Center for Transitional Justice 3 (July 2006), available at: https://www.ictj.org/sites/default/files/ICTJ-Global-Commissions-Gender–2006-English_0.pdf.

6. Id.

7. UN Women Training Centre: Gender Equality Glossary, available at: https://trainingcentre.unwomen.org/mod/glossary/view.php?id=36&mode=letter&hook=S&sortkey=&sortorder= [Gender Equality Glossary].

8. Id.

9. See, e.g., World Bank, Gender, Justice, and Truth Commissions, 2 (June 2006) available at: http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/GJTClayoutrevised.pdf

10. See, e.g., Erin Alexander, Women of War: The Female Fighters of the Liberation Tigers of Tamil Eelam, the Yale Review of International Studies (May 2014), available at: http://yris.yira.org/essays/1347 [Alexander].

11. Joke Schrijvers, Fighters, victims and survivors: constructions of ethnicity, gender and refugeenees among Tamils in Sri Lanka, Journal of Refugee Studies, 12.3, 308 (1999). Gender discrepancy has consistently been recorded in the UNDP Gender Inequality Index, which measures inequality in achievement between women and men in reproductive health, empowerment and the labour market. For example, Sri Lanka was ranked 73rd in the UNDP 2015 Gender Inequality Index. See United Nations Development Programme, Human Development Reports: Gender Inequality Index (GII), available at: http://hdr.undp.org/en/indicators/68606.

12. Report of the OHCHR Investigation on Sri Lanka, Human Rights Council, Thirtieth Session, A/HRC/30/61 (16 September 2015)[OISL].

13. Id.

14. See, e.g., Nimmi Gowrinathan and Kate Cronin-Furman, The Forever Victims? Tamil Women in Post-War Sri Lanka, Sexual Violence Initiative (28 August 2015)[Tamil Women in Post-War Sri Lanka] available at: http://www.deviarchy.com/wp/wp-content/uploads/2015/09/The-Forever-Victims-Tamil-Women-in-Post-War-Sri-Lanka.pdf.

15. Evidence collected in OISL suggests that men and women were equally likely to be subject to sexual and gender based violence in detention. See OISL, supra note 12.

16. For an in depth study regarding the widespread and systematic nature of sexual bribery cases in Sri Lanka, see Shreen Abdul Saroor, Sexual Bribery in Sri Lanka: Legal Framework and Case Studies (January 2016).

17. See Sirkku K. Hellsten, Transitional Justice & Aid, UNU-WIDER Working Paper 17 (2012).

18. Id.

19. See Alexander, supra note 10.

20. See Nimmi Gowrinathan, Why Do Women Rebel? Understanding State Repression and Female Participation in Sri Lanka. UCLA Center for the Study of Women 1 (2010) Available at: http://escholarship.org/uc/item/2hk943xk; See also, Alexander, supra note 10.

21. See, e.g., Gowrinathan, supra note 20, at 1; See also, Alexander, supra note 10.

22. See Alexander, supra note 10; see also, Degmar Hellmann, Female Warriors, Martyrs and Suicide Attackers, Sri Lanka Guardian (26 April 2008), available at: http://www.slguardian.org/2008/04/female-warriors-martyrs-and-suicide-attackers/ 

23. G. Shanthini, The Status of Female Cadres and Activism around the Same, in Shreen Abdul Saroor (ed.), OUR STRUGGLES, OUR STORIES, 155 (2014)[Our Struggles, Our Stories].

24. Id at 155.

25. Id at 36.

26. Id at 36-37.

27. Submission on LGBTIQ Persons and Transitional Justice Mechanisms, Women and Media Collective (25 August 2016)[Women and Media Collective] available at: http://groundviews.org/2016/08/25/submission-on-lgbtiq-persons-and-transitional-justice-mechanisms/

28. Id.

29. See Dilrukshi Handunnetti, The man of the house is a woman, Sunday Observer (14 June 2015) available at: http://archives.sundayobserver.lk/2015/06/14/spe01.asp.

30. See Raksha Vasuderan, Everyday Resistance: Female Headed Households in Northern Sri Lanka, 5.1 (2013) available at: http://books.openedition.org/iheid/689.

31. Id at chapter 5.

32. Tamil Women in Post-War Sri Lanka, supra note 14, at 5.

33. Id.

34. See, e.g., Our Struggles, Our Stories, supra note 23, at 43-64.

35. Tamil Women in Post-War Sri Lanka, supra note 14, at 2.

36. Id.

37. Id.

38. Chulani Kodikara, Justice and accountability for war related sexual violence in Sri Lanka, 50.50 Inclusive Democracy (15 August 2016) available at: https://www.opendemocracy.net/5050/chulani-kodikara/justice-and-accountability-for-war-related-sexual-violence-in-sri-lanka.

39. Tamil Women in Post-War Sri Lanka, supra note 14.

40. Id at 13–15.

41. Id.

42. See Our Struggles, Our Stories, supra note 23, at 11.

43. Id.

44. World Bank, supra note 9, at ix.

45. Dr. Kalana Senaratne, The Complexity of Loss, GroundViews: Journalism for Citizens (30 May 2016) available at: http://groundviews.org/2016/05/30/the-complexity-of-loss/.

46. “UN documents such as the 1997, 2004, and 2005 reports of UN Special Rapporteurs on the fight against impunity, and the 2004 report by the Secretary-General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. The 1988 creation of the International Criminal Court was also significant, as the Court’s statute enshrines State obligations of vital importance to the fight against impunity and respect for victims’ rights.” See What is Transitional Justice? A Backgrounder (20 February 2008) available at: http://www.un.org/en/peacebuilding/pdf/doc_wgll/justice_times_transition/26_02_2008_background_note.pdf.

47. UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, United Nations, Treaty Series, vol. 660, 195 (21 December 1965) available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article1 ; See also, UN Women, Progress of the World’s Women: In Pursuit of Justice (2011-2012) [Progress of the World’s Women].

48. See International Women’s' Rights Action Watch Asia Pacific, CEDAW Principles, available at: http://www.iwraw-ap.org/cedaw/what-is-cedaw/cedaw-principles/  [CEDAW Principles].

49. Id.

50. See, e.g., Progress of the World’s Women, supra note 47.

51. “Given women’s position and role in traditional societies, the most frequent violations experienced by women during conflict are those of a socio-economic nature. Yet socio-economic violations have historically fallen outside the mandate of transitional justice mechanisms.” UN Women, A Window of Opportunity: Making Transitional Justice Work for Women 2 (October 2012) [A Window of Opportunity].

52. Id at 2.

53. “Incentives can come in the positive form of formal or informal recognition for efforts or more punitive measures to impose sanctions for failures to address abuses of women’s rights.” id at 4.

54. These obstacles can include an operating language different from the language that women speak, the location of hearings are too far away for women to participate, or the legal costs are too high for women to pay. “They include the opportunity cost of women’s time—women have to make up one way or another for the loss of their labour at home, in childcare and family maintenance. Costs to women also include the risk of stigmatization of women and girls who testify about gender-based and sexual violence, and the serious security risks women face when they identify perpetrators of crimes against women.” id at 4.

55. Dr. Radhika Coomaraswamy, Peacebuilding of the Future: The Challenges, GroundViews: Journalism for Citizens (28 June 2016), available at: http://groundviews.org/2016/06/ 28/peacebuilding-of-the-future-the-challenges/.

56. Id.  

57. See James Stewart, Gender and Transitional Justice, United Nations University (25 March 2013), available at: http://unu.edu/publications/articles/gender-and-transitional-justice.html ; see also, Hellsten, supra note 17, at 20.

58. International Committee of the Red Cross [ICRC], Living with uncertainty: Needs of the families of missing persons in Sri Lanka, 31 (July 2016) available at: https://www.icrc.org/en/document/sri-lanka-families-missing-persons (accessed 20 November 2016), [Living with Uncertainty].

59. It is interesting to note that 93% of missing adults are male, and 76% of missing minors are male. See Id at 4.

60. See, e.g., OISL, supra note 12.

61. Living with Uncertainty, supra note 58, at iv.

62. Id.

63. Id at 19.

64. Id at 18.

65. Hatice Bozkurt, and Ozlem Kaya, Holding Up the Photograph: Experiences of the Women Whose Husbands Were Forcibly Disappeared, Truth Justice Memory Center, 18 (2014). 

66. Living with Uncertainty, supra note 58, at 18.

67. Id.

68. Id.

69. Id at 21.

70. Id.

71. Id.

72. Id at 17.

73. Id.

74. The psychosocial support task force was formed by the Office for National Unity & Reconciliation (ONUR) and will be headed by former President Chandrika Bandaranaike Kumaratunga. It will “introduce a range of services to families of missing persons and others in Sri Lanka who suffer from the post-conflict trauma.” See T. Ramakrishnan, Task force to provide counselling to missing persons’ families, The Hindu (18 October 2016) available at: http://www.thehindu.com/news/international/forum-to-address-psychosocial-needs-of-missing-persons-kin-in-sri-lanka/article8949018.ece

75. See Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14, §10 (23 August 2016)[OMP Act].

76. Id at §27.

77. Id at §2(b).

78. Id at §2(a).

79. Id at §7(3).

80. Id at §17.

81. Id at §18.

82. Id at §18(6).

83. Id at §11(e).

84. Id at §11(a)-(c).

85. Id at §12(a).

86. Id at §10(e).

87. Id at §12(c).

88. Id.

89. Id at §12(f).

90. Id at §12(g).

91. Id at §13(1)(c).

92. Id at §13(k).

93. Id at §10(2)(b).

94. Id at §12(i).

95. Id at §12(i); 18(5).

96. Id at §13(i).

97. The respondents then prioritized economic assistance, psychosocial assistance, and finally, acknowledgement of wrongdoing and the accountability of perpetrators. See Living with Uncertainty, supra note 58.

98. See Polly Dewhirst & Amrita Kapur, The Disappeared and Invisible: Revealing the Enduring Impact of Enforced Disappearance on Women, UN Women & International Center for Transitional Justice, VIII (March 2015).

99. See OMP Act, supra note 75, 4(2)(b).

100. For examples in this respect, see chapters below on Commission for Truth, Justice, Reconciliation and Non-recurrence, and the Office on Reparations. 

101. See OMP Act, supra note 75, 11(d).

102. See Local Consultation Recommendation C.1.1.1, supra Annexure 1 below.

103. Medhaka Fernando & Isabelle Lassee, Operationalizing the Office on Missing Persons: Manual of Best Practices, South Asian Centre for Legal Studies, 9 (05 December 2016) [OMP Manual].

104. Id at 9.

105. However, as specified in the OMP Manual, “officers should also be mindful of cases where individuals may have been arrested or imprisoned due to political or other improper motives. It is imperative for the Office to keep these realities in mind when implementing its vetting procedures to ensure that individuals, who have been dealt with unjustly in the past, are given a fair opportunity of working with the OMP. In this respect, the Office must establish clear criteria for vetting its personnel and set up a Panel to assess the seriousness and credibility of any allegations against applicants.” Id at 13.

106. See OMP Act, supra note 75, at §14 & §16(3).

107. For further recommendations in this respect, see OMP Manual, supra note 103, at 13.

108. See OMP Manual, supra note 103.

109. See, the Paranagama Commission has done great damage, Sri Lanka Campaign for Peace and Justice (6 July 2016) available at: https://www.srilankacampaign.org/paranagama-commission-done-great-damage-now-damage-must-repaired/; see also, OMP Manual, supra note 103, at 14.

110. See Australian Human Rights Commission, Effectively Preventing and Responding to Sexual Harassment: A Code of Practice for Employers, Chapter 6.3(b) (2008) [Effectively Preventing and Responding to Sexual Harassment] available at: https://www.humanrights.gov.au/publications/chapter-6-preventing-sexual-harassment-all-reasonable-steps-effectively-preventing-and#6_3_b

111. See Recommendation C.1.2.2, supra Annexure 1.

112. See Effectively Preventing and Responding to Sexual Harassment, supra note 110.

113. See Recommendation C.1.2.2, supra Annexure 1.

114. “While the OMP ACT does not provide for the creation of oversight structures, it might be useful to establish such oversight committees (1) to ensure that the Office’s staff complies with international rules and guidelines, and (2) to provide checks and balances for the Office’s strategic and other decision-making processes. To this end, the OMP may create two oversight structures: an oversight committee to oversee staff compliance with the OMP rules, and a Victim-Based Oversight Committee composed of representatives of missing persons’ families to oversee the Office’s strategic decisions such as the planning of investigations.” See OMP Manual, supra note 103.

115. Id at 15.

116. See Recommendation C.1.2.1, supra Annexure 1.

117. See OMP Manual, supra note 103, at 15.

118. Public International Law and Policy Group, Core Elements of Facilitating Women’s Participation in Truth and Reconciliation Commissions, 5 (January 2013) [Core Elements of Facilitating Women’s Participation] available at: https://syriaaccountability.org/wp-content/uploads/PILPG-Womens-Participation-in-Truth-Commissions-2013_EN.pdf

119. Id at 5.

120. See OMP Manual, supra note 103, at 7. This approach was taken in Colombia’s National Commission for Reparation and Reconciliation which concentrated on training the regional staff. See Carla Koppell & Jonathan Talbot, Strengthening Colombia’s Transitional Justice Process by Engaging Women, the Institute for Inclusive Security, 3 (March 2011).

121. http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/GJTClayoutrevised.pdf See World Bank, supra note 9, at 14.

122. See Core Elements of Facilitating Women’s Participation, supra note 118, at 11.

123. See Office of the United Nations High Commissioner for Human Rights, Analytical study focusing on gender-based and sexual violence in relation to transitional justice, i (30 June 2014). 

124. See World Bank, supra note 9.

125. See Ruwan Laknath Jayakody, Arthur Wamanan, & Faizer Shaheid, Gov’t Shuns Missing Persons Families, The Nation (3 September 2016); See OMP Manual, supra note 103, at fn. 378.

126. Working Group on Enforced or Involuntary Disappearances, General comment on women affected by enforced disappearances, A/HRC/WGEID/98/2, ¶22 (31 October – 9 November 2012). See also, Polly Dewhirst and Amrita Kapur, The Disappeared and Invisible: Revealing the Enduring Impact of Enforced Disappearances, International Center on Transitional Justice, VIII (15 March 2015). 

127. See Recommendation C.1.2.5, supra Annexure 1.

128. See Nesiah, supra note 5.

129. See id.

130. Jo Baker, Update: Gender analysis of Sri Lanka’s LLRC published by local and international media, and cited in political report (November 2011) available at: http://www.jobakeronline.com/articles/women-left-behind-truth-commissioning-in-sri-lanka/.

131. Nicola Jones & Fiona Samuels, Psychosocial support to women and girls in the aftermath of conflict, Development Progress (23 May 2014) [Jones & Samuels] available at: http://www.developmentprogress.org/blog/2014/05/23/psychosocial-support-women-and-girls-aftermath-conflict

132. See id.

133. See OMP Act, supra note 75, at §13(e); See Recommendation C.1.3.2., supra Annexure 1.

134. Apart from Guatemala and Peru, adequate psychosocial support in all stages of investigation and exhumation has often been absent. See Polly Dewhirst & Amrita Kapur, The Disappeared and Invisible: Revealing the Enduring Impact of Enforced Disappearance on Women Briefing Paper, 4 (March 2015)[Disappeared and Invisible Briefing Paper]. 

135. See Jones & Samuels, supra note 131.

136. Id.

137. Id.

138. Id.

139. Mental Health and psychosocial support for conflict-related sexual violence: principles and interventions, World Health Organization (WHO), United Nations Population Fund (UNFPA), and United Nations Children’s Fund (UNICEF), United Nations Action against Sexual Violence in Conflict (28-30 November 2011). Available at: https://www.unicef.org/protection/files/Summary_EN_.pdf 

140. Id.

141. International Committee of the Red Cross, ICRC Action in Nepal for Missing Persons and their Families (April 2011) available at: https://www.icrc.org/eng/assets/files/2011/missing-nepal-report-icrc-2011-04.pdf

142. Id.

143. Id

144. David Hutton, Psychosocial Challenges and Interventions for Women Affected by Conflict, Critical Half Bi-Annual Journal of Women for Women International, 25 (Summer 2006) available at: http://www.eldis.org/vfile/upload/1/document/0708/DOC23560.pdf

145. See OMP Manual, supra note 103.

146. See OMP Act, supra note 75, at §18(3). 

147. See OMP Manual, supra note 103, at 24-25.

148. Id at 26-27 (citing laws in Peru, Hong Kong, Nepal, Philippines, Kenya, and Indonesia).

149. See Recommendation C.1.3.1, supra Annexure 1, which generally refers to the need for protection for women who engage with the OMP.

150. See Disappeared and Invisible Briefing Paper, supra note 134, at 4; See Dewhirst & Kapur, supra note 126, at VIII. 

151. See id.

152. See Working Group on Enforced or Involuntary Disappearances, supra note 126, at ¶44; see also, Recommendation C.1.4.1, supra Annexure 1.

153. See Recommendation C.1.4.1, supra Annexure 1.

154. See Recommendation C.1.5.2, supra Annexure 1.

155. See, e.g., Recommendation C.1.5.4, supra Annexure 1 referring specifically to sexual bribery.

156. See Recommendation C.1.4.6, supra Annexure 1.

157. See Recommendation C.1.4.4, supra Annexure 1, referring specifically to the certificate of absence.

158. See Recommendation C.1.5.3, supra Annexure 1.

159. See Dewhirst & Kapur, supra note 126, at VIII.

160. Id. at 5.

161. For a detailed examination of different causes and patterns of disappearances that relate specifically to women, see Dewhirst & Kapur, supra note 126.

162. See also, Chapter on the Office on Reparations infra.

163. President Releases LLRC Report to Parliament, the UN and Public, The Sunday Leader (2012) available at: http://www.thesundayleader.lk/2011/12/18/president-releases-llrc-report-to-parliament-the-un-and-public/ 

164. Lanka Solidarity, The Final Report of the Lessons Learnt and Reconciliation Commission: A Response, Groundviews (2012) available at: http://groundviews.org/2012/01/11/the-final-report-of-the-lessons-learnt-and-reconciliation-commission-a-response/

165. Id.

166. Report of the Secretary-General Panel of Experts on Accountability in Sri Lanka (31 March 2011) available at: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf; Lanka Solidarity, supra note 164; Amnesty report: Sri Lanka’s civil war panel “flawed,” BBC News (7 September 2011) available at: http://www.bbc.com/news/world-south-asia-14803210

167. See Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, 181-187 (November 2011). 

168. Harshadeva Amarathunga, Omission of gender: Sri Lanka’s “Lessons Learnt and Reconciliation Commission,” (25 June 2014) available at: https://www.insightonconflict.org/blog/2014/06/omission-gender-sri-lanka-reconciliation-llrc/

169. Id.

170. Id.

171. See, e.g., LLRC witness rattled by CID summon, BBC Sinhala.com (12 November 2011) available at: http://www.bbc.com/sinhala/news/story/2011/11/111112_llrcwitness.shtml

172. Sri Lanka to set up a South Africa-style truth and reconciliation commission, The Guardian (15 September 2015) available at: https://www.theguardian.com/world/2015/sep/15/sri-lanka-to-set-up-a-south-africa-style-truth-and-reconciliation-commission

173. Krishan Francis, Sri Lanka mulls SAfrican-model truth commission, the Jakarta Post (19 February 2014) available at: http://www.thejakartapost.com/news/2014/02/19/sri-lanka-mulls-safrican-model-truth-commission.html

174. See Statement by Foreign Minister Samaraweera, General Debate, 30th Session, UN Human Rights Council (14 September 2015) available at: http://www.mfa.gov.lk/index.php/en/media/media-releases/6178-slfm-hrc30

175. See From Words to Action, South Asian Centre for Legal Studies, 15 (2016). 

176. Eduardo Gonzalez & Howard Varney (eds.), TRUTH SEEKING: ELEMENTS OF CREATING AN EFFECTIVE TRUTH COMMISSION, International Center for Transitional Justice, 57 (2013). 

177. Id.

178. See Recommendation C.2.4.1, supra Annexure 1; Amarathunga, supra note 168.

179. See Dewirst & Kapur, supra note 122, at 10, 15.

180. See Chapter on OMP infra.

181. See Recommendation C.2.4.2, supra Annexure 1.

182. See Dewirst & Kapur, supra note 126, at 19.

183. See Recommendation C.2.3.5, supra Annexure 1.

184. States, such as Guatemala and Brazil, justified the establishment of their truth commissions on the right of their citizens to know the truth about human rights violations for purposes of non-recurrence. This approach was followed in the South African Constitutional Court, which upheld the right to the truth in relation to victims, the media, and the public, and most notably, regarding crimes associated with the period under review, even if they were not subject to amnesty and thus not characterized as politically motivated crimes, such as rape. Non-recurrence was guaranteed by the Human Rights Council in its Resolution 18/7 of 29 September 2011, and the appointment of a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence for a period of three years. In 2014, the Human Rights Council adopted the Resolution 27/3 which extended the mandate of the Special Rapporteur for a further period of three years. 

185. Besides this being important because it is an integral part of the right to truth, it is also essential to enable recommendations on redress and for non-recurrence. Of relevance is the fact that women have things to say about security sector reform.

186. See Recommendation C.2.2.1 & C.2.2.3, supra Annexure 1.

187. See Dewirst & Kapur, supra note 126, at 7.

188. See Gonzalez & Varney (eds.), supra note 176, at 57.

189. See Recommendation C.2.2.2, supra Annexure 1.

190. See A Window of Opportunity, supra note 47; see also, Nesiah et al., supra note 5.

191. See Recommendation C.2.3.7, supra Annexure 1.

192. See generally, Aruni Jayakody, Victim and Witness Protection: the Need for Further Reform, South Asian Centre for Legal Studies (Feb. 2016). 

193. See id.

194. See Recommendation C.2.1.3, supra Annexure 1; see also, Jayakody, supra note 192.

195. For example, in many previous commissions, like South Africa, Timor-Leste, Guatemala and Peru, the women who submitted statements primarily described harms endured by male family members, instead of detailing harms that they themselves endured. See Nesiah et. al., supra note 128, at 17.

196. See Nesiah et. al., supra note 128, at 18.

197. Id. 

198. See Recommendations C.2.3.2, C.2.3.11, supra Annexure 1.

199. Chulani Kodikara, Justice and accountability for war related sexual violence in Sri Lanka, 50.50 Inclusive Democracy (15 August 2016) available at: https://www.opendemocracy.net/5050/chulani-kodikara/justice-and-accountability-for-war-related-sexual-violence-in-sri-lanka

200. See Recommendation C.2.1.2, supra Annexure 1.

201. See Nesiah et. al., supra note 128, at 27.

202. See Recommendation C.2.3.6, supra Annexure 1.

203. See Recommendation C.2.3.10, supra Annexure 1.

204. See Recommendation C.2.1.1, supra Annexure 1.


206. For an overview of the arguments, see, e.g., Nicola Henry, The Fixation on Wartime Rape: Feminist Critique and International Criminal Law, Social and Legal Studies (September 2013); Doris E. Buss, The Curious Visibility of Wartime Rape: Gender and Ethnicity in International Criminal Law, Windsor Year Book of Access to Justice 25(1), 3–22 (2007); Doris E. Buss, Rethinking ‘Rape as a Weapon of War,’ Feminist Legal Studies 17, 145–16 (2009); M. de Alwis, The ‘Apparition of Rape’ and the ‘Sisterhood’ of International Feminists in REIMAGINING GENDER AND POLITICS: TRANSNATIONAL FEMINIST INTERVENTIONS, Goethe University (27–28 November 2010). 

207. For a comprehensive quantitative analysis of sexual violence in Sri Lanka, see Emma Fulu, et. al., Why Some Men Use Violence Against Women and How Can We Prevent It: Quantitative Findings from the United Nations Multi-Country Study on Men and Violence in Asia and the Pacific (September 2013). See, also, Human Rights Watch, “We Will Teach You a Lesson:” Sexual Violence against Tamils by Sri Lankan Security Forces, 15 (2012) available at: https://www.hrw.org/report/2013/02/26/we-will-teach-you-lesson/sexual-violence-against-tamils-sri-lankan-security-forces. See also Yasmin Sooka, The Bar Human Rights Committee of England and Wales (BHRC), and the International Truth and Justice Project, Sri Lanka, An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014 (2014)[An Unfinished War]. 

208. It should be noted that an observable increase in reported cases may be caused by the increase in reporting versus an increase in the commission of the crime itself. See, e.g., Human Rights Watch, supra note 204; Dinouk Colombage, Rapes surge in Sri Lanka amid weak laws, Al Jazeera English (2014) available at: http://www.aljazeera.com/indepth/features/2014/08/rapes-surge-sri-lanka-amid-weak-marital-laws-201481772359790802.html; Conflict-related sexual violence, Report of the Secretary-General, S/2015/203 (23 March 2015) available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_203.pdf

209. Anne Woodworth & Bhavani Fonseka, Accountability and Reparations for Victims of Conflict Related Sexual Violence in Sri Lanka, Centre for Policy Alternatives Discussion Paper, 5 (July 2016). 

210. Id. at 5; International Truth and Justice Project Sri Lanka, Silenced: Survivors of Torture and Sexual Violence in 2015 (January 2016) available at: http://www.itjpsl.com/reports/silenced-report; Human Rights Watch, supra note 207; OISL, supra note 12, at ¶116.

211. It should be noted that reports of the use of sexual violence by the LTTE are much more limited. See, e.g. Human Rights Watch, supra note 204; Kristy Anantharajah, The Fraught Road to Justice: Sri Lankan Victims of Sexual Violence, Colombo Telegraph (11 October 2016) available at: https://www.opendemocracy.net/5050/fraught-road-to-justice-sri-lankan-victims-of-sexual-violence

212. Woodworth & Fonseka, supra note 209, at 5; OISL, supra note 12, at ¶116. See also, Crimes Against Humanity in Sri Lanka’s Norther Province: A Legal Analysis of Post-War Human Rights Violations, Sri Lanka Campaign for Peace and Justice (4 March 2014) available at: https://www.srilankacampaign.org/wp-content/uploads/2015/02/Crimes-Against-Humanity-Report-Sri-Lanka-Campaign-2014.pdf 

213. Woodworth & Fonseka, supra note 209, at 8.

214. Universal Declaration of Human Rights (Article 8); International Convention on the Elimination of All Forms of Racial Discrimination (Article 6); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (article 14); International Convention for the Protection of All Persons from Enforced Disappearances (Article 24); The Rome Statute of the International Criminal Court (article 68). 

215. See, e.g., Human Rights Watch, supra note 207, Woodworth & Fonseka, supra note 209.

216. Asian Human Rights Commission, Sri Lanka: Rape and other crimes against women on the increase (15 July 2013) available at: http://www.humanrights.asia/news/ahrc-news/AHRC-STM-131-2013

217. See Sri Lanka Penal Code §363. 

218. For a complete analysis of the inadequacy of prosecuting atrocity crimes under the current Sri Lankan criminal code, see Isabelle Lassée & Elanor Vermunt, Fitting the Bill: Incorporating International Crimes into Sri Lankan Law (September 2016) available at: http://sacls.org/resources/publications/reports/item/210-fitting-the-bill-incorporating-international-crimes-into-sri-lankan-law

219. See, e.g., Human Rights Watch, supra note 207, Woodworth & Fonseka, supra note 209.

220. Woodworth & Fonseka, supra note 209, at 9.

221. See OISL, supra note 12, ¶116; Woodworth & Fonseka, supra note 209, at 11; Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict, The European Journal of International Law, 253, 256 (2007) available at: http://ejil.org/pdfs/18/2/224.pdf

222. See generally, Human Rights Watch, supra note 207.

223. See, e.g., Azzam Ameen, Sri Lanka president wants ‘internal’ war crimes court, BBC News (21 January 2016) available at: http://www.bbc.com/news/world-asia-35376719

224. See ‘My responsibility to protect the honour of war heroes,’ declares Sri Lankan president, Tamil Guardian (27 October 2016) available at: http://www.tamilguardian.com/content/%E2%80%98my-responsibility-protect-honour-war-heroes%E2%80%99-declares-sri-lankan-president; Athula Vithanage, Sri Lanka President intervenes on behalf of accused military men, JDSLanka (14 October 2016) availabl at:

225. See Isabelle Lassée, The Politics of Sequencing: A Threat to Justice, South Asian Centre for Legal Studies (29 November 2016). 

226. Zeid urges creation of hybrid special court in Sri Lanka as UN report confirms patterns of grave violations, UN News (16 September 2015) available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16432

227. See OISL, supra note 12, at ¶1278 (citing A/HRC/RES/25/1, preamble). 

228. See Lassée & Vermunt, supra note 218.

229. See Recommendation C.3.3.1, supra Annexure 1.

230. See Recommendation C.3.4.3, supra Annexure 1, which refers to the need for cultural sensitivity in the unit that will investigate sexual violence. 

231. See Rome Statute UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010) Article 7 (17 July 1998)[Rome Statute]. In addition the threshold of gravity needed, the ICC’s jurisdiction is limited to perpetrators who are the most responsible for mass human rights violations, these limitations are specific to the ICC and are not relevant for the jurisdiction of domestic tribunals or a hybrid tribunal as this does not limit the criminal culpability of all those involved in committing sexual violence or the criminality of an act itself. 

232. Women’s Initiative for Gender Justice, Sexual Violence and International Criminal Law: An Analysis of the Ad Hoc Tribunal’s Jurisprudence & the International Criminal Court’s Elements of Crimes (September 2005) available at: http://iccwomen.org/publications/resources/docs/Overview_Sexual_Violence_and_International_Criminal_Law.pdf

233. International Criminal Court (ICC), Elements of Crimes, Article 7(1)(g)-1 (2011). 

234. Nicole Brigitte Maier, The Crime of Rape Under the Rome Statute of the ICC: with a special emphasis on the jurisprudence of the Ad Hoc Criminal Tribunals, Amsterdam Law Forum, 148 (2011) available at: http://amsterdamlawforum.org/article/viewFile/209/397

235. Etienne G. Krug (ed.), World Report on Violence and Health, World Health Organization (WHO), 149 (2002). 

236. For a review of the different standards, see Women’s Initiative for Gender Justice, supra note 232.

237. For example, the ICTR “in Kayishema, the Trial Chamber concluded that there is a connection between rape and other actus reus for genocide—deliberately inflicting on the targeted group conditions of life calculated to bring about its physical destruction in whole or in part. The Trial Chamber held that this concept includes ―circumstances which will lead to a slow death, for example, lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion.” Women’s Initiative for Gender Justice, supra note 232.

238. For a complete analysis of case law, see Gloria Gaggioli, Sexual Violence in Armed Conflicts: A Violation of International Humanitarian Law and Human Rights Law, International Review of the Red Cross, 506 (2014). 

239. UN Women, supra note 190, at 7.

240. Best Practices Manual For the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict: Lessons from the International Criminal Tribunal for Rwanda, the Office of the Prosecutor of the International Criminal Tribunal for Rwanda, 11 (2008) [Best Practices Manual: Sexual Violence]. It was observed that having a separate Sexual Assaults team actually hindered the collection of evidence in the team’s effort to investigate sexual violence alone. 

241. UN Women, supra note 190, at 6.

242. Id.

243. See Rome Statute, supra note 231.

244. See Recommendation C.3.2.5 & C.3.2.6, supra Annexure 1.

245. See Recommendation C.3.2.2 & C.3.2.3, supra Annexure 1.

246. See Recommendation C.3.2.2 & C.3.2.3, supra Annexure 1.

247. See Recommendation C.3.4.4, supra Annexure 1, which refers to the need to use other sources of evidence before interviewing victims of sexual violence. 

248. See Recommendation C.3.4.8, supra Annexure 1, referring for instance to the possibility and need to charge rape and sexual violence as crimes against humanity; see also, Best Practices Manual: Sexual Violence, supra note 240, at 118-119.

249. See also Recommendation C.3.4.6, supra Annexure 1, which also refers to other ways of preventing re-traumatization such as avoiding interrogation; see also, Best Practices Manual: Sexual Violence, supra note 240, at 40.

250. See Best Practices Manual: Sexual Violence, supra note 240, at 40.

251. Id.

252. Id at 41.

253. Id.

254. Id.

255. Id at 42-43.

256. Id.

257. Id at 43.

258. Id at 28.

259. Id at 65.

260. Strict rules usually govern the involvement of any support person in court. “For example, a support person cannot be a witness in the case; discuss the evidence with the witness before or during the court proceedings; communicate through word or body language with the witness whilst giving evidence; or otherwise participate in the proceedings unless asked a question by the court.” Best Practices Manual: Sexual Violence, supra note 240, at 66.

261. Id.

262. See Recommendation C.3.4.5, supra Annexure 1, refers to the need for interviewers to also respect victims’ time and avoid calling in witnesses several times to provide the same information.

263. See Best Practices Manual: Sexual Violence, supra note 240, at 67.

264. Id at 151.

265. For a review of these reparation recommendations from past Commissions of Inquiry and a review of other reparations measures, see generally, Bhavani Fonseka, The Need for a Comprehensive Reparations Policy and Package, Centre for Policy Alternatives (April 2015). 

266. For more information about some of these reparations measures, see generally, Fonseka, id.

267. President presents 11-page draft for lasting national reconciliation, Sunday Times (2 October 2016) available at: http://www.sundaytimes.lk/161002/columns/president-presents-11-page-draft-for-lasting-national-reconciliation-211164.html

268. Program launched to provide relief for war-affected women in Northern Sri Lanka, Colombo Page (17 October 2016) available at: http://www.colombopage.com/archive_16B/Oct17_1476717919CH.php 

269. Id.

270. Ministry of Foreign Affairs Sri Lanka, Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council (14 September 2015) available at: http://www.mea.gov.lk/index.php/en/media/media-releases/unhrc2015/6200-slfm-hrc30

271. See Secretariat for Coordinating Reconciliation Mechanisms Open Dialogue with Civil Society Takeaways (20th September 2016) (stating that the Office of Reparations is to be established and functioning by the end of the 1st quarter of 2017). 

272. See Niran Anketell, From Words to Action: A Roadmap for Implementing Sri Lanka’s Transitional Justice Commitments, South Asian Centre for Legal Studies, 38 (February 2016); Dr. Mario Gomez‘s presentation at the panel discussion on ―The Paranagama Report and Transitional Justice: Politics, Positioning and Provenance (November 2015) available at: https://www.youtube.com/watch?v=RMhy7neoxtQ

273. See Recommendation C.4.1.1, supra Annexure 1.

274. See Recommendation C.4.1.2, supra Annexure 1.

275. See, e.g., Our Struggles, Our Stories, supra note 23, at 117.

276. See Woodworth & Fonseka, supra note 209, at 27.

277. See Recommendation C.4.1.3, supra Annexure 1.

278. See Recommendation C.4.2.9, supra Annexure 1.

279. See Recommendation C.4.2.5, supra Annexure 1.

280. Ruth Rubio-Marín (ed.), What Happened to the Women? Gender and Reparations for Human Rights Violations, International Center for Transitional Justice, 81 (2006).

281. Id. However, in formulating its recommendations, the TRC was generally gender-blind.

282. See Recommendation C.4.3.3, supra Annexure 1.

283. See Recommendation C.4.3.5, supra Annexure 1.

284. See Recommendation C.4.3.1, supra Annexure 1.

285. See Recommendation C.4.3.2 & C.4.3.4, supra Annexure 1.

286. See Woodworth & Fonseka, supra note 209, at 26.

287. For a description of these individual forms of reparations, see 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, General Assembly Resolution 60/146 (16 December 2005)[UN Basic Principles on Reparations] available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx 

288. See Woodworth & Fonseka, supra note 209, at 18.

289. See UN Women, supra note 190, at 16.

290. Id.

291. Id at 17.

292. See Woodworth & Fonseka, supra note 209, at 20.

293. Id.

294. See Recommendation C.4.2.3, supra Annexure 1.

295. See UN Women, supra note 190, at 18; Brandon Hamber and Ingrid Palmary, Gender, Memorialization, and Symbolic Reparations, in The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (2009).

296. Dr. Ernest Bai Koroma, Statement made on International Women’s Day, 27 March 2010. UN Women, supra note 190, at 18.

297. See Recommendation C.4.3.8, supra Annexure 1.

298. See Recommendation C.4.3.10, supra Annexure 1.

299. See Recommendation C.4.3.9, supra Annexure 1.

300. See Recommendation C.4.3.11, supra Annexure 1.

301. See Rubio-Marín, supra note 280, at 120.

302. See UN Women, supra note 190, at 17.

303. Id. This was one of the major shortcomings of the Peruvian CVR, which largely failed to deliver on its promises to Quechua-speaking women. See Rubio-Marín, supra note 280, at 171.

304. See Recommendation C.4.2.4, supra Annexure 1.

305. See Recommendation C.4.2.4, supra Annexure 1.

306. See Recommendation C.4.2.6, supra Annexure 1.

307. See Recommendation C.4.2.8, supra Annexure 1.

308. See UN Women, supra note 190, at 17.

309. Id.

310. Id.

311. See Recommendation C.4.2.2, supra Annexure 1.

312. See UN Women, supra note 190, at 17.

313. See Recommendation C.4.3.6, supra Annexure 1.

314. See Woodworth & Fonseka, supra note 209, at 22.