By Jehan Perera –

Jehan Perera

The visit of UN Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson to Sri Lanka and his public comments indicate a visible toughening of the stance of the international community with regard to delivering on its promises on the reconciliation process to the UN Human Rights Council. He said Sri Lanka could face a range of measures, including a referral to the UN Security Council, if it fails to meet commitments it made under the UNHRC resolution of 2015. He said that there was little evidence that perpetrators of war crimes were being brought to justice and that progress had come to a virtual halt. There is a question of credibility of the UN system if countries can make promises to the UN which they subsequently fail to keep.

The government’s decision to co-sponsor the UNHRC resolution in 2015 was an expression of a policy shift which took the government away from confrontation with the international community and with the Tamil polity in the country. The previous government headed by President Mahinda Rajapaksa began to treat the international community led by the Western countries as a virtual enemy, and viewed the Tamil people with suspicion even after the war ended. With the change of government in 2015, however, the relationship of the government with the international community and Tamil polity took an immediate turn for the better. Even though the government has failed to keep its promises to the UN and to the Tamil people, it is important not to lose sight of the policy shift that has taken place.

However, the slow implementation of measures to address the legacy of the past, as pledged by the government in the UNHRC resolution of 2015, has been a major source of disillusionment to those who placed their faith in the government. The UN Special Rapporteur said that ‘retrograde elements in the security establishment and their allies’ in the government were trying to undermine post-war reconciliation process and attributed the inordinate delay in the implementation of the Geneva Resolution 30/1 to them. The failure of the government to operationalize the Office of Missing Persons, which was passed into law in August 2016 has been explained on the basis that it is being resisted by the defense establishment. The government’s proposed reconciliation mechanisms, including the Truth Commission, are also stalled on the basis that they will provide evidence that can be used at war crimes trials.

Government Fears 

The UN Special Rapporteur said that “Two years on and already four months into a two-year extension granted to the government by the Human Rights Council the progress in achieving the key goals set out in the Geneva Resolution is not only slow but seems to have ground to a virtual halt. None of the measures so far adopted to fulfill Sri Lanka’s transitional justice commitments are adequate to ensure real progress and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice.” He also noted that Sri Lanka had promised to discuss the proposed Counter Terrorism Act (CTA) in place of the PTA and bring in required changes before being presented for parliamentary approval. But this has yet to happen.

The problem for the government in following the proposed course of action spelt out by the UN Special Rapporteur is that it feeds into opposition political propaganda. The opposition is claiming that the government is caving into international pressure that will jeopardise the gains obtained through the military victory over the LTTE and will undermine the morale of the security forces and thereby weaken the unity of the country. The unwillingness of the government to take on this controversial issue is at the root of the blockage of the reconciliation process. The government has stepped back from implementing the commitments it made in Geneva in 2015 mainly for these reasons, including the concern that expressed by the security forces that these mechanisms will be used to gather information about the past that could be used in future war crimes trials.

However, the course of action presented by the UN Special Rapporteur is not the only one that is being pushed by the international community. Last week the International Organisation for Migration (IOM) which is the UN agency mandated to look into the issue of reparations in Sri Lanka held a workshop on its work on reparations for victims of conflict. During the meeting, IOM representatives discussed the key points and future plans to support the national stakeholders toward the development and implementation of a comprehensive reparations mechanism. One of the commitments made by the government in Geneva in 2015 was to establish an Office of Reparations. The ideal of reparation is to restore victims to their original state as far as possible.

Alternative Course 

One of the points made by IOM’s experts on reparations was that reparations is the most inclusive of all the reconciliation mechanisms that the government has promised. Everyone who has been a victim is entitled to reparations. Many people may not be willing to come and give evidence before a Truth Commission or before a Special Court set up to deal with war crimes. They may not be prepared, or be too fearful, to go before those bodies and have to confront those who perpetrated crimes against them as in the case of special war crimes courts. They may also not be prepared to go before a Truth Commission and relive their past. However, where reparations are concerned, the victims do not have to confront those who did wrong by them. Nor will they be required to speak up before the general public and before commissioners.

Victims can receive reparations on the basis of already existing evidence. The advantage of reparations is that they can be determined administratively, and not through a legal process where the burden of providing evidence lies with the victim. A further advantage of reparations is that they can be offered in multiple ways. Reparations can come in the form of regaining access to their lost lands and properties, houses, livelihoods, psychosocial support and information on missing persons. They can be provided on a priority basis to war orphans, female headed households and those who have been subjected to torture and sexual abuse. The disproportionate expenditures on special courts in comparison to providing compensation to victims is a factor to be kept in mind. In Sierra Leone it cost USD 200 million over 7 years to convict 24 persons. But the Sierra Leone government only paid out USD 13 million to 32,000 victims who were identified by its Truth Commission.

Although the visiting UN special rapporteur emphasized issues of accountability which fall within his mandate, it would be more practical and beneficial to victims to start the process of implementation of the UNHRC resolution through reparations. It is reported that drafts of the mechanisms that the government promised it would implement to the UNHRC in 2015, such as the Truth Commission and the Office of Reparations are prepared. But they are not being presented to either Parliament or the public. The paralysis that has set in is harming the government’s credibility. The strictures passed on the government by the UN special rapporteur is a clear indication that the international community wants the government to act on its promises. The Office of Reparations can be set up speedily to assuage the concerns that the government is backtracking on its commitments.