Exploring International and Domestic

Modalities for Truth and Justice in Sri

Lanka

AFP PHOTO/LAKRUWAN WANNIARACHCHILAKRUWAN WANNIARACHCHI/AFP/Getty Images

via FT blog

by Bhavani Fonseka-- on 02/09/2015

The Declaration of Peace by the

Government of Sri Lanka at the 67thIndependence Day Celebrations held
on 4th February 2015 is a notable shift in its recognition of the past and the
need for healing and unity. The Lessons Learnt and Reconciliation
Commission (LLRC) made a similar recommendation, as did the United
Nations Secretary Generals Panel of Experts (PoE). Recognizing the past is
the first in a process needed to address past violations, provide answers
regarding missing persons, initiate independent mechanisms to hold
alleged perpetrators to account and end the culture of impunity.
A month after President Maithripala Sirisena took office, statements from

ministers and media reports indicate to an establishment of what is termed

a credible domestic process to investigate the past. It is yet to be seen
how different this would be to the rhetoric of a home grown by the
previous government. In addition, there is a change of policy to engage with
the United Nations Office of the High Commissioner (OHCHR) and the Office
of the High Commissioner for Human Rights Investigation on Sri Lanka
(OISL). Although engagement has been indicated, limited information is
available in the public domain as to what this will entail and how this will
impact the victims and survivors of the war in Sri Lanka and their search for
truth and justice. With discussions moving forward as to what should and
could transpire at the 28th Session of the UN Human Rights Council
(UNHRC), the calls for truth and justice by a significant population in Sri
Lanka must not be ignored. It is also necessary to factor in whether Sri
Lanka has the capacity to address past violations via what the Government
has promised as a credible domestic process. The past track record in this
area is dismal and any efforts at international and domestic processes must
ensure they meet with international standards and heed calls of the
affected population. This article briefly sets out why it is key to explore both
domestic processes and to continue to have international attention and
support for truth and justice in Sri Lanka.
The Need for Continued International Attention
The pledge to address accountability came about in May 2009 in the joint
communiqu by former President Mahinda Rajapaksa and United Nations
Secretary General (UNSG) Ban Ki Moon. Failure to take action resulted in the
UNSG appointing a POE to advice him on whether violations of international
human rights and humanitarian law occurred during the war. The POE came
out with a scathing report pointing to violations and with specific
recommendations to the Government of Sri Lanka and international

community. The resolution setting up the OISL came about in the absence
of any genuine steps by the Rajapaksa Government to live up to its own
promises and pledges to investigate. It is also a testament to the calls by
victims and survivors for truth and justice and who bravely provided
testimony of past and ongoing violations.
It is in this context that the UNHRC must not fail the victims and survivors of
Sri Lanka. The 28th Session provides an opportunity for member states to
discuss Sri Lanka and use the opportunity to constructively engage with the
Government of Sri Lanka and support its own domestic initiatives. It is also
fundamental that Sri Lanka continues to be on the agenda of the UNHRC
with continued support by the international community including the
OHCHR and other human rights mechanisms. Although the Sirisena
Government has indicated an interest to engage, this alone should not
dilute the stand taken by the international community to investigate past
violations and support Sri Lanka in terms of initiatives at addressing truth,
justice and reconciliation. There are several areas that require attention
before Sri Lanka can initiate domestic investigations including legal and
policy reform. This includes reforming the Commission of Inquiry Act and
introducing legislation for victim and witness protection. Capacity building
is also needed including providing trainings to judges, lawyers, court staff,
investigators and forensic scientists among others.
Lessons from Previous Domestic Processes
Successive governments appointed numerous commissions and made
many promises to investigate violations, with limited information in the
public domain regarding progress and follow up. With claims of revisiting
domestic processes, it is important that such processes are initiated in a
transparent manner and not be speeded through for political gain. Secrecy

with such processes can lead to suspicion and question its legitimacy.
Another important component of any domestic process is to have the
involvement of victims, survivors, affected communities and civil society.
Such groups can be an oversight mechanism to monitor proceedings and
raise issues, ensuring the process is credible and fair. It also provides an
ownership in the process. Civil society groups played an active role in past
processes such as when several groups had standing to represent victims
before the Commission of Inquiry looking into 16 past cases (also known as
the Udalagama Commission). Similarly, civil society and community groups
played an important role in supporting many victims and affected
communities to come before the LLRC and continue to support families who
go before the present Presidential Commission to Investigate Complaints
Regarding Missing Persons (Missing Persons Commission).
Other lessons from previous experiences include having an effective victim
and witness protection mechanism and independent prosecutors. While
exploring modalities for domestic processes, we must also remember that
one specific model at addressing justice and accountability is insufficient. A
sense of justice and closure do not always come with prosecutions and it is
critical to also consider other modalities of transitional justice including
truth telling processes, memorialization and reparations, areas which I have
raised in a previous article.
The International Dimension to a Domestic Process
Recent statements by government ministers also indicate to the possibility
of having an international dimension to the domestic process. Although it is
still unclear what exact role international actors are to play in such a
process, it is worth examining past experiences when international actors
were involved in investigating serious human rights violations in Sri Lanka

and identify lessons from such experiences for future modalities. An earlier
initiative involving internationals was in 1993 when an international
commission was established to investigate the death of Lieutenant General
Denzil Kobbekaduw and others. The international commission comprised
three Commonwealth Judges- Justice Austin Necabeohe Evans Amissah
(Ghana), Sir Kenneth James Keith (New Zealand) and Justice Muhammadu
Lawal Uwais (Nigeria). This commission was established subsequently to a
presidential commission headed by Justice Ismail. With criticism made
against the two entities, another commission headed by Justice Tissa
Bandaranayake was appointed in 1997 to investigate into the same
incident.
More recently the Rajapaksa Government established a group titled the
International Independent Group of Eminent Persons (IIGEP) with the
mandate to monitor the proceedings of the Udalagama Commission. The
IIGEP was headed by Indias former Chief Justice P.N.Bhagwati with 10 other
international experts who were nominated by several countries and
multilateral bodies. Funding for the IIGEP was based on contributions by
those who had nominated members, with a secretariat comprising both
internationals and nationals with expertise in areas needed to fulfill its
mandate. The IIGEP observed sittings and attempted to engage with the
Commission but left within a year of its appointment citing a lack of
political will by the Government to address past cases.
The IIGEP was a unique model in that it did not have a direct involvement in
the investigations but was meant to monitor proceedings. This role though
was disputed with the advice of the IIGEP not being taken on board by the
Udalagama Commission and the Government. The IIGEP raised issues of the
independence of the commission and interference by the Government in
proceedings, both of which were disregarded. The IIGEP model must be

studied when there is interest to identify a role for the international

community and it should be noted that mere monitoring has its set backs,
especially if the domestic process is unwilling to heed advice. Furthermore,
the IIGEP did not have independent access to witnesses or conduct
independent investigations. The reports of the IIGEP were submitted to the
President, who had the power to veto publication of information. None of
IIGEPs reports to the President are publicly available.
The most recent international component to a domestic process is the
Advisory Council to the Missing Persons Commission. The Advisory Council
was established in July 2014 by Gazette No. 1871/18 and consists of six
internationals including Sir Desmond de Silva (UK), Sir Geoffrey Nice (UK),
Prof. David Crane (USA), Prof. Avdash Kaushal (India), Mr. Ahmer Bilal Soofi
(Pakistan) and Mr. Motoo Noguchi (Japan). According to the extended
mandate, the Advisory Council is to advice the Chairman and Members of
the Commission of Inquiry, at their request, on matters pertaining to the
work of the Commission. But questions remain regarding the exact role of
the advisers and whether they were appointed to actually advise the
Government of Sri Lanka who stands accused of serious human rights
violations. Their flawed role in Sri Lanka has been noted by the Sri Lanka
Campaign including questions raised whether their claim of a lawyer-client
relationship with the Government of Sri Lanka is undermining the role
expected of them as provided in the gazette appointing them. Further
questions are raised regarding funding. According to media reports, the
Central Bank of Sri Lanka has paid De Silva UK sterling pounds 60,000 per
month (about Rs.12 million). This excludes costs of food and lodging. It is
indeed worrying that millions have been spent on the Advisory Council
when there is limited information available regarding their exact role and
questions are raised regarding the utility of such an exercise.
Lessons for the Future

This article provides a glimpse into what has been tried in Sri Lanka
including the role of international actors in domestic processes and lessons
for any future process. This by no means discounts the importance of
international processes at truth and justice. Moves to formulate what is
being termed a credible domestic process must take note of past
experiences and identify benchmarks that facilitate an independent
process. An issue flagged is the possible provision of technical support by
the international community to a domestic process. Although this is
important, technical support alone is insufficient. There needs to be greater
involvement with investigations and support for reform. It is also critical
that any future process is independent, transparent and inclusive, including
providing space for victims, communities and civil society. Some will argue
for more time in terms of investigating past violations. More than five years
after the war, there should be no further delays. It is essential that the
Government demonstrate its commitment to the people of Sri Lanka to end
the culture of impunity and fulfill its promise to address truth and justice in
Sri Lanka.
Posted by Thavam