Opinion & Analysis
Post-conflict justice process inches forward in Sri Lanka8:04 AM, October 1, 2018
Sri Lanka:Nation split over any serving or past military personnel being tried for alleged war crimes.
Amid United Nations criticism of delays in addressing Sri Lankan civil war rights abuses, cracks are widening within the government on how to respond to international pressure for faster progress.
Estimates of the death toll in the 1983-2009 conflict, between mainly Hindu ethnic-minority Tamil secessionists and the Buddhist-dominated national security forces, range up to 200,000.
Such figures include lives said to have been lost from tens of thousands of alleged disappearances and army summary executions — claims denied by the military.
The Liberation Tigers of Tamil Eelam have similarly rejected various accusations that their combatants committed gross human rights violations.
Newly appointed U.N. Human Rights Commissioner Michelle Bachelet said recently that Sri Lankan authorities have moved too slowly to implement specific measures to address legacy justice issues.
However, she acknowledged that a new Office of Missing Persons (OMP) has begun consultations and institutional capacity-building to fulfil its mandate.
Sri Lankan President Maithripala Sirisena flagged that in front of the U.N. General Assembly this month he would "vindicate the security forces from all allegations levelled against them."
Sri Lanka's transition from a country at war to a nation that deals with its divided past is confronted by myriad stumbling blocks. These include economic constraints imposed by a debt burden that members of the present government blame on their predecessors.
But other barriers arise from mindsets. The internationally mandated transitional justice agenda is often viewed one-dimensionally, by foreigners and locals alike, as being primarily about war crimes and the punishment of them. This has divided the polity on ethnic lines.
The government is under political siege for having co-sponsored a 2015 U.N. Human Rights Commission resolution that set ambitious two-year targets that included downsizing the military, vetting security personnel and others who abused human rights and setting up a hybrid war crimes court comprising foreign and local judges, prosecutors and investigators.
Despite the generally slow progress, there has been greater freedom of expression in recent years, including for privately owned media outlets supportive of opposition political parties.
And some 80 percent of land occupied by the military during the civil war has been returned to its owners.
The OMP has recommended publication of lists of all detention centers as well as the names of detainees. The body also called for reform of the Prevention of Terrorism Act that permits prolonged detention of individuals without judicial review. It also recommended the suspension of state officials and security personnel, accused of involvement in abductions, pending investigation and resolution of their cases.
In an interim report, the OMP called for law enforcement agencies and prosecutors to be allocated more resources to help them secure convictions of rights violators.
The body said poor families of the missing should be given urgent assistance, including a monthly living allowance of 6,000 rupees (US$35) and access to a quota of public sector jobs.
However, there is a fundamental conundrum that the OMP is unlikely to be able to solve. This is the unwillingness of the Sri Lankan military to cooperate with the pursuit of serving or former personnel in relation to alleged past deeds.
Field Marshal Sarath Fonseka, who commanded the army in the bloody concluding phase of the war and who is a now a government minister, claimed that members of the nation's cabinet were unaware of the contents of the U.N. resolution when it was signed.
Opposition politicians maintain that members of the military who defeated the Tamil insurgency are at risk of being "sacrificed" by the government in response to outside pressures.
Against a backdrop of dissent within the government over the U.N. resolution, in March 2017 there was an official request for a further two-year grace period to put specific measures into effect.
In these circumstances, it is to the credit of Prime Minister Ranil Wickremesinghe and a handful of ministers such as Finance Minister Mangala Samaraweera (who signed the UNHRC resolution on behalf of the government as foreign minister) that the transitional justice process is moving forward at all.
Investigations can be regarded, including by President Sirisena himself, as insidious attempts to find evidence against purported "war heroes" to have them convicted as war criminals.
The OMP's seven commissioners face an uphill task, but they are skilled and experienced individuals, not least from civil society and the legal profession.
Their integrity, commitment, maturity and sense of balance will be needed to lay a foundation for the truth, justice and reconciliation essential for Sri Lanka. Movement is slow but so far at least it has been forward.
The second transitional justice mechanism, the Office for Reparations, has recently been approved by Sri Lanka's cabinet and the requisite legislation is to be placed before parliament for passage into law.
The third mechanism, centered on a truth-seeking commission, is still on the drawing board.
In other troubled parts of the world, the unfolding of transitional justice processes has taken decades. Sri Lanka needs more time and political wisdom to achieve this goal.
Jehan Perera, executive director of the National Peace Council of Sri Lanka, is a regular weekly political columnist for newspapers in Sri Lanka and internationally. He holds a doctor of law degree from Harvard Law School and a degree in economics from Harvard College.
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