What next?

Part 2: Deconstructing
Transitional Justice
This is the second part of a three part series. You can read part 1 here, and part 3
will be available here when it is published tomorrow.

Deconstructing
Transitional Justice
Aug 18, 2015

The human aftermath of the shelling of the No Fire

Sri Lanka needs a

Zones will not be as easy to clear away
comprehensive approach to dealing with
the past which incorporates accountability, truth telling, and reconciliation. Sadly
such an approach does not appear to be on the cards. Meanwhile, the Sri Lankan
government would like nothing more than to present a blueprint for what they
will claim is a comprehensive, solely domestic, mechanism, and so close down
other avenues for accountability.
Instead, therefore, we suggest splitting the initial approach to transitional justice
into three parts. By keeping these parts separate, and by giving each part its own
timeline, we are more likely to see the past meaningfully addressed.
Of course, these three items should not be entirely unlinked, nor can they be
separated from the equally important wider issues of acknowledgement,
restitution, guarantees of non-recurrence, and action to address the grievances
that formed the root cause of the war. But by differentiating our approaches we
can increase our chances of overall success.

International or internationalised?
This differentiated approach also helps address a key debate within Tamil civil
society. Tamil activists have been debating whether what is needed is a

sarvadesa ie international mechanism or a

sarvadesamayamaakkappatta or internationalised
mechanism.
Essentially this is a debate over where the mechanism is located: a mechanism
inside Sri Lanka is currently very unlikely to deliver justice, given the lack of
witness protection and the systemic flaws with Sri Lankas judiciary. However it will
be very difficult for a mechanism located outside of Sri Lanka to properly engage
with the survivor community, and such a process would almost inevitably become
top-down.
Our experience, and that of colleagues, has been that when discussing
accountability processes Tamil survivors will overwhelmingly insist on an
international mechanism. However, once it is explained that this will mean trials
outside Sri Lanka, support for an international mechanism falls considerably.
Survivors need to be able to fully assess the possibilities afforded by different
approaches: whether the conviction of a few high-ranking officials is more or less
important than the conviction of many lower ranking officials, and what process
for justice would best enable their inclusion.
What appears to be needed is a process which is international when it comes to
the standards of justice applied but domestic when it comes to interacting with
survivors. By separating out the processes of transitional justice this may be
possible.

Part 1: accountability
On accountability the clear demand from survivors is for an international or
internationalised mechanism. Realpolitik suggests however, that the Human
Rights Council is unlikely to insist on such a process at its September session.
Therefore we should ask to ensure the ongoing monitoring of accountability in Sri
Lanka via the appointment of a UN Special Rapporteur or by a field office of the
Office of the High Commissioner for Human Rights (OHCHR) with the High
Commissioner reporting back to the Human Rights Council at subsequent
sessions. Ongoing monitoring will gradually increase pressure to internationalise
the mechanism over the next few. Sadly past history teaches us that without
international involvement the Sri Lankan accountability process will falter, and will
not satisfy victims. This will further make the case for the internationalisation of
the process, and hopefully pave the way for the involvement of international
judges and prosecutors.

Part 2: truth seeking

Truth seeking in particular finding out what really happened to Sri Lankas
disappeared remains the number one concern of the survivor community.
The Paranagama Presidential Commission of inquiry into missing persons is
utterly failing to meet the demands of victims of disappearances. Anger at the
commission in the survivor community is increasingly causing sessions to
beboycotted. This commission is now doing more harm than good and must be
brought to an end.
However, for the sake of the over 20,000 people who have already registered a
loved one as missing, data recorded thus far must be safeguarded, and a new and
meaningful process must promptly and thoroughly investigate all these cases.
In order for survivors to have confidence in such a process it appears that it will
need to have an international element, with international commissioners,
international investigators, and international technical assistance. It is a live
question as to whether such a process should have a justice element, or be purely
focused on finding the disappeared with, perhaps, an enhanced role for the
International Committee of the Red Cross.
Again survivors views are critical here, but it is vital that the international
community support the creation of a credible survivor-led process.

Part 3: reconciliation
Meaningful reconciliation cannot be rushed. Meaningful reconciliation cannot be
imposed from the top down but must grow from the bottom up. The worst thing
the Government of Sri Lanka could do for reconciliation in Sri Lanka would be to
impose some form of centralised, all encompassing, reconciliation and
accountability process.
As the UN Special Rapporteur on Transitional Justice said on his recent visit, there
is no shortcut to reconciliation.
What is needed is for the Government of Sri Lanka to create the space for Sri
Lankan civil society to develop its own reconciliation process. In the meantime the
Government of Sri Lanka needs to rebuild the shattered trust of the survivor
community by releasing political prisoners, returning seized land, ending the

militarys economic involvement in civilian affairs, and ordering the Sri Lankan
Armed forces stationed in the north to go back to barracks.
Next must come acknowledgement, apology, guarantees of non-recurrence, and
institutional reform. Additionally the vexed issues of a political solution to Tamil
grievances and reparations will need sensitive handling. These are huge issues, of
vital importance, which discussions about reconciliation in Sri Lanka have yet to
begin to address. Yet only after these steps have taken place would a more formal
Government-led reconciliation process have value.
Finally, while the input of countries such as South Africa who have had their own
experiences with transitional justice are of course welcome, it should be noted
that the Sri Lankan case is different. A South African solution to a Sri Lankan
problem will not be successful. Sri Lanka was a victors peace. Models such as
South Africas, which are predicated upon a fundamental 180 degree shift in the
power relations between communities, are not applicable to Sri Lanka.

Minding the gap

By splitting the processes necessary to deal with the past into their constituent
parts, we have demonstrated one way in which the gap between what Sri Lanka
needs and what the international community is willing to deliver could perhaps be
closed. But in the meantime, while the question of accountability and Sri Lankas
culture of impunity remains unaddressed, Sri Lankas peace will remain
unsustainable. In our final part, we will look at what other processes can be used
to help solve this problem.
Posted by Thavam