By P.K. Balachandren
Colombo, May 16: In January 2024, the Sri Lankan government announced its intention to establish a Commission for Truth, Unity and Reconciliation (CTUR) to address the ethnic issue in the island nation and promote reconciliation. But earlier this week, human rights scholars from across the world, issued a joint statement asking the government to “immediately” give up the plan.
The Sri Lanka government proposes to go by the South African model, but that model is based on “restorative justice” which Sri Lankan victims, namely the Tamils, reject. Sri Lankan victims want “retributive justice” which envisages punishment of the wrong doers.
The joint statement of the human rights scholars points out that Sri Lankan victim groups and civil society have expressed no faith in the independence of government-appointed commissions as such commissions have had a dismal record in delivering justice. The scholars also point to the dismal track record of the current political leadership in Sri Lanka in regard to meeting its promises.
Why No Faith?
The victims’ lack of faith in the proposed CTUR is based on: the failure of the Office of Missing Persons and Office of Reparations established as part of Sri Lanka’s commitment under the United Nations Human Rights Council resolution (30/1), both which appear to be now operationally defunct; the repeated denial of state violations; and the refusal to seriously consider recommendations contained in the 2017 report of the Consultation Task Force (CTF).
The right of individuals to know the truth about past abuses has been affirmed by UN treaty bodies, UN special procedures, regional courts, and international and domestic tribunals. A truth-seeking process in post-war and past authoritarian contexts can contribute towards establishing the extent and the patterns of past violations, as well as their causes and consequences. In so doing, it can help reconcile deeply divided communities, the scholars submit.
However, their research strongly affirms that such processes must be context specific, inclusive and empowering of victims, and lead to justice and accountability. Importantly, a country must be ready for a truth-seeking process.
“A government seeking to establish such a commission must demonstrate political will to pursue a serious inquiry into past abuses. This government has had ample opportunity to demonstrate its political will through the Office on Missing Persons, while building trust and confidence amongst the victim community by recognising their right of assembly and protest and engaging in meaningful consultations, yet, it has failed to do so.”
“Moreover, civil society and victim-survivor groups have raised concerns in their public statements that the establishment of a TRC is a tick-box exercise by the government to feign commitment towards transitional justice and remove Sri Lanka from the UN Human Rights Council agenda.”
“It is due to the failure of the Sri Lankan government to meet its commitments made to the UNHCR in 2016 that in 2021 the Council passed a resolution effectively shifting the collection and maintenance of evidence to the UN Office of the High Commission for Human Rights.”
“Victims and witnesses must have trust and faith in the proposed process and be willing to cooperate with it. The fact that victims of the crimes that the transitional justice seeks to redress are vehemently opposed to the formation of the proposed CTUR is a reason to not proceed with its establishment.”
“It is now axiomatic that transitional justice mechanisms must be context specific and designed, developed and implemented through effective victim inclusion. International law requires that affected communities are not only included in the conduct of transitional justice processes but in the design of such mechanisms.”
“Marginalising or excluding victims from the design of mechanisms can result in the denial of truth, justice, accountability and repair, which are the core aims of transitional justice, and in addition re-traumatise, abuse, and undermine victims and cause grave injustice,” the scholars say.
International Participation
The scholars ask the government to “seriously consider victim-survivors’ repeated demand for international participation in any domestic truth and reconciliation commission and the widespread belief that truth or justice cannot be achieved through a purely domestic mechanism.”
They also call upon foreign governments, including those which have experience working on transitional justice, to “refrain from supporting the Sri Lankan government on the establishment of CTUR in light of opposition from victim-survivors.”
Previous Attempts
The idea of setting up a Truth and Reconciliation Commission (TRC) comes up only when there is a temporary need to mollify the international human rights lobby. It was mooted in 2015 and 2022 because of pressure from the UN Human Rights Commission but it was not followed up. It is mooted now primarily to please the IMF, and there is no intention to actually set it up.
On October 16, 2018, a conceptual framework was submitted to the Sri Lankan cabinet. The concept paper said: “Despite the appointment of numerous ad hoc commissions of inquiry during the past (like the Paranagama Commission, the Lessons Learnt and Reconciliation Commission, the Udalagama Commission, Mahanama Tillekeratne Commission) due to failure to implement recommendations made by those Commissions, it has not been possible to successfully prevent recurrence of conflict, or build confidence amongst all the people of Sri Lanka in the efficacy of measures to ensure non-recurrence, advance national unity and reconciliation, or identify and undertake administrative reform interventions that may be necessary.”
The concept paper further said that the proposed Act of Parliament would, inter alia, incorporate statutory provisions to appoint a Monitoring Committee which will “enable all Sri Lankan citizens, irrespective of race or religion, including families of police and security forces personnel, civilians in villages that came under attack by terrorists, security forces personnel and police personnel, and all affected persons in all parts of the country, to submit their grievances suffered during any phase of civil disturbances, political unrest or armed conflict that has occurred in the past, to the proposed TRCSL.”
“The proposed TRCSL should have sufficient administrative and investigative powers, including those granted to Commissions of Inquiry. This includes powers to compel the cooperation of persons, State institutions, and public officers in the course of its work.”
“While the TRCSL will not engage in prosecutions, it should be vested with sufficient investigative powers. But the TRCSL’s recommendations shall not be deemed to be a determination of civil or criminal liability of any person.”
But till date, there has been no forward movement except to again talk about setting up a TRC.
South African Model
This inspiration to set up a TRC comes from South Africa. But the South African model cannot be applied in Sri Lanka. The South African TRC (TRCSA), set up in 1998, was based on “restorative justice” and not “retributive justice”. But in Sri Lanka, the victims, who are Tamils, are demanding retributive justice.
And the TRCSA was itself only a partial success says Samara Auger, author of “Healing the Wounds of a Nation: The Truth and Reconciliation Commission of South Africa.”
The fundamental principle informing the TRCSA’s efforts was encapsulated in the indigenous African concept of “Ubuntu”. As per “Ubuntu” jurisprudence is restorative rather than retributive. The Ubuntu approach rests on the acceptance of the concept that the sufferings undergone were “collective”, that everyone suffered equally, regardless of class, race or religion and that people should seek collective redemption, forsaking revenge in exchange for peaceful alternatives.
However, a racial divide was seen in the acceptance of the TRCSA – the Blacks found it more useful than the Whites, who did not cooperate wholeheardly. South African society continues to be racially divided despite the TRCSA.
Practical Alternatives
It is suggested that the more practical alternative for Sri Lanka would be to: (1) release those Tamils incarcerated for years without cases being filed against them; (2) punish perpetrators of atrocities who are facing credible charges; (3) release public lands acquired by the Security Forces and government departments on specious grounds (4) boost the economies of the war-effected areas (5) motivate minority youth to stay in the country and develop it.
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