26 September, 2018

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Pragmatism Needed In Fashioning Transitional Justice Approaches 

By Jehan Perera

Jehan Perera

UN special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, recently expressed his strong disappointment at the failure of the government to implement the commitments it made more than two years ago in Geneva to the UN Human Rights Council. On that momentous occasion in October 2015 the government succeeded in reversing the deterioration in relations between Sri Lanka and the international community which had been threatening to isolate, and economically further undermine, the previous government headed by former President Mahinda Rajapaksa. There was a looming threat of further international sanctions to follow upon the European Union’s withdrawal of the GSP Plus tariff concession that had led to the closure of large numbers of garment factories which led to a severe blow to the national economy.

At the UN Human Rights Council in October 2015 the government pledged to set up four new institutions that would promote transitional justice in the country. Specifically, the government committed itself to establishing in a two-year period (which lapsed in March of this year) mechanisms in four different areas including, truth, justice, reparations and guarantees of non-recurrence.   Transitional justice is the process of transformation that the UN system has sanctioned for countries that are transiting from situations of war, authoritarian rule or largescale violations of human rights, or all of them, to more democratic and human rights-respecting ways of governance. The transitional justice process is not something that is recommended only for Sri Lanka in particular but for any and all countries that have found themselves in the unfortunate situation that Sri Lanka found itself.

In his strongly worded report, the UN Special Rapporteur bemoaned the fact that “the process is nowhere close to where it should have been more than two years later. These expectations were not merely those of the international community but of the government of Sri Lanka and of Sri Lankans generally.” Justifying the strictures he passed on the government is the observation that the government had yet to implement even one of the four mechanisms it promised in Geneva. These four mechanisms include a truth commission to ascertain the truth of what actually happened during the course of the war. This one takes on particular relevance in view of the controversy that has reopened about the number of casualties in the closing stages of the war. British Lord Naseby has said that the figure of 40,000 generally mentioned by the international community is excessive.

Reverse Benefit 

The issue of what happened during the final stages of the war has been controversial and murky. The ICRC and other independent actors were asked by the then government to leave the final battlegrounds for their own safety.  This led to various speculations about what actually happened, including the death toll, with claims that it ranges from about 7000 to more than 100,000.  The figure, which Lord Naseby has sought, will be one among many such figures. Ascertaining the correct figure will be one of the primary tasks of the Truth Commission that the UNHRC resolution calls for, and which the government has promised to implement. There is a need for a figure that is arrived at through a process that is acceptable to all sides.

Similarly, in Geneva in October 2015, the government promised to establish an Office of Missing Persons to find out what happened to the large numbers that went missing during the war. There is already documented evidence of about 20,000 missing persons during the course of the entire conflict, and not only its last phase, and this figure is with various government commissions of inquiry set up on previous occasions, but little has been done to find out more about them. The government has passed legislation to establish this mechanism, and also called for applications for commissioners. So far this is the only transitional justice mechanism about which anything concrete has been done. The government has yet to do anything concrete with regard to the Office of Reparations to compensate the hundreds of thousands who lost their properties and loved ones, and finally a special court to investigate the many allegations of war crimes.

Ironically, however, the UN special rapporteur’s strictures against the government for not implementing the promised transitional justice mechanisms may help rather than hurt the government when it comes to the local electorate, especially with local government elections around the corner in January 2018. It will strengthen the government’s defense that it is not betraying the country at the bidding of the

International community as alleged by the opposition.  It is notable that in the runup to the local government election, the Joint Opposition is narrowing its campaign down to the issue of betrayal of the country. Overzealous members of the opposition appear to be running amok on this emotive issue even calling for the execution by hanging of those who call for war crimes accountability and the bombing of parliament if the government’s constitutional reforms strengthen the devolution of power to the Tamil and Muslim majority parts of the country.

US Example 

In these fraught circumstances it would be helpful if international expertise on the transitional justice process is brought to bear on the special circumstances in Sri Lanka, even as the UN system and international human rights organisations continue to put pressure on the government to deliver on its commitments. The difficulty for the government is that it has to engage in a transitional justice process for which there is currently little or no support from the ethnic majority population. It will also be an uphill task to convince the ethnic majority population in the need, and legitimacy of a process that could lead to the punishment of the political and military leaderships that defeated the LTTE on the military battlefield.

So long as Sri Lanka is a democracy, any government will need to obtain ethnic majority support in order to win elections, remain in power and implement its plans. There is a need to be realistic in assessing what any Sri Lankan government can and cannot do. It would be like convincing the majority of American and British people through an education process that the political leaderships and pilots who conducted the “thousand bomber raids” of German cities and the atomic bombing of Japanese cities during the closing stages of World War 2 are not war heroes but should be condemned for what they did.  So far in the world it appears that the only successful nationally driven transitional justice process in which accountability and punishment were at the centre has been where either the victim population was a majority (South Africa) or where the ethnic minority won (Rwanda) or where military dictatorships were overthrown (South America).

Realism suggests that the textbook approach will not work and will either lead to the downfall of the government or will lead to a box-ticking exercise that the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein warned against when he said in September this year that “This should not be viewed by the Government as a box-ticking exercise to placate the Council, but as an essential undertaking to address the rights of all its people.” The key to a more viable approach would be found in one of the UN special rapporteur’s observations that there is no one-size-fits-all solution to transitional justice. A nationally driven truth commission that would educate the Sri Lankan people about what happened during the war with a view to binding up the nation’s wounds in the spirit of post-civil war United States under its great president Abraham Lincoln coupled with an internationally supported programme of reparations to those who lost in the war, on all sides, may be the Sri Lankan path to a shared future that would leave behind our divided past.

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Latest comments

  • 1
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    Just as the Buddhist faith has been the biggest impediment to democratic development in countries like Sri Lanka and Myanmar, Islam in the form of Taliban has been an obstacle in the path of the well meaning people of Pakistan and Afghanistan just as much the ISIS has been in Syria and other Arabic countries. When will this end? Bensen

    • 1
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      A comparison so foolish that it is worthy of a native Veddah.

    • 0
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      We should have made Sinhale a democratic country just the way Saudi Arabia is. They we could have observed how Tamils would be swiming to North via the strat.

  • 2
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    ..educating SL people about what happened during the war with a view to binding up the nations wounds …with int. supported progr. of reparations to those who lost in the war..!!
    seeing the opposition to a new Constitution and refusal to give back lands to people or finding those disappeared …the majority are not in a mood to know the truth nor ready for any reparations in any way!!! a very sad situation for the future of the country! Hence we all have to do more to awaken the majority of the dangers ahead

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      Sleemanpillai the greatest danger to your reputation was your association with the LTTE.

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      Father S.J.Emmanuel,

      “..educating SL people about what happened during the war with a view to binding up the nations wounds …”

      Educate the hypocrites in the west on what happened during three decades long Tamil terrorist campaign in Sri Lanka. Tell them who financed the terror campaign. Tell how some western countries turned a blind eye to fund raising for terrorism. Now they talk only about war crimes committed by SL Armed Forces. Tell them there are LTTE war criminals hiding in western countries. Tell the British Government to release the report that says SL Armed Forces did not commit war crimes.

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      This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 0
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    Jehan Perera: Sinhala people should be prosecuted infront of foreign Judges, Foreign Jury, English speaking lawyers and when needed transitional justice or laws burrowed from foreign organizations. On the other hand, Tamil terrorists should be considered political prisoners and their criminal cases should be heard only every the people speaking tamil, tamil copies of the law, and not any languages or those except speaking Tamil. Anyway, cases infront of non-tamils would discriminate Terrorists.

  • 0
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    To compare World War Heroes with Lankawe Rapist Army, neither America nor Britain did deport Germans to India. Neither American nor British governments conducted 1958, 1961, 1977, 1983 pogroms against Germans. Never Britain or America Standardized German students studies in their countries. Germany invaded weaker nations. Other than Russia (USSR) none of the allies who fought the war was affected by Germany’s attacks. There is no comparison to Tamil rebels to Germany’s war. Interestingly, Japan and Germany accepted their crime and changed their constitutions. Germany accepted the Nuremburg judgments. It did not tell “No leader, No Commander, No Soldier will be prosecuted”. There no were special attempts to teach Germans to accept UN interference on the investigation of the war criminals. Jehan PhD eat from the donations of those two countries now trying name them as war criminals and accuses their leaders use the 2nd world war atrocities to win election. In America, neither Senior Bush nor Junior Bush secured any victories for their parties by war victories. In Britain Tony Blair was defeated and accused of war crime. The ultra-racist Jehan PhD is telling that how hard it is being to tech American or British people of their dead ones on liberating the Germany occupied countries are not heroes, but only rapist genocide-rs. Interestingly American and Russian scientists, who were involved in the Atomic bomb research, regretted their participation in inventing those mass destruction arms. But even after hard evidence submitted, Lankawe genocide criminals are denying using chemical booms and cluster bombs. American, Russian leaders do not conduct a referendum when they negotiate with each other on arms reduction. It just goes ratified by their parliaments.
    This is human tragedy.
    We cannot accept Jehan PhD staring his auction at lowest Zero Casualties and fixing his maximum at 100,000.

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    . 90,000 war widows number alone is suggesting the total murders must be above 500,000 civilians. Lord Naseby said it was UN estimate. In 2009, UN only handed down what Nambiar gave to them. Brother Prince told to UN it was only zero Casualties. First crude estimates started from Gordon Wise accusations on UN. “Still Counting the death” gave more incite. OISL is the first one used real 6000 witnesses. So UN reviewed it numbers every time when a new report come out of it. Jehan PhD clinging on to Lord Naseby number or Brother Prince’s Zero Casualties is not going to bring reconciliation unlike Jehan PhD is preaching. So better he be ready to accept UN’s next number 146,000 the real Northern estimate.
    Most important witness for the Lankawe carnage is UN-SG Ban-ki-Moon. He has said that he had not seen devastation like the one he saw in Mullivaaikkaal. So it is not Lord Naseby’s 7000. (It may be Zero Casualty) That was only after all the bodies were bulldozed in very deep graves. He had obtained promise from Old King to take responsibility for that carnage. UN-SG, seeing the promise was not moving, appointed a Panel to fact find for him. UNSG’s Expert Panel interviewed witnesses and guessed it as above 40,000. In the light of more information, UN internal investigation put the number on 70,000. It is at that time, UN-SG had confessed that UN has done serious mistake in ignoring the Genocide took place in Lankawe. Lord Naseby is no part on any of these. Lord Naseby is only Chameleon witness for the fence eating the crops.

  • 0
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    Jehan PhD is saying there is no other way for Tamils, but to surrender to majoritarianism. Tamil who have the right to self-determination will never appoint Jehan PhD as their consultant on that. Further he is saying entire world is passing, year after year, anti-minority bills to win election. He is defining that’s all as democracy. But sadly, he won’t be able to point out one single democratic county are passing every year an electioneering anti-minority bills to keep election winning.
    Ironically, however, the UN special rapporteur’s strictures against the government for not implementing the promised transitional justice mechanisms may help rather than hurt the government when it comes to the local electorate, especially with local government elections around the corner in January 2018. It will strengthen the government’s defense that it is not betraying the country at the bidding of the International community as alleged by the opposition.
    This is the classic talk of Jehan PhD. He turns it around and uses anything for election winning. Now he is saying UN Special Rapporteur Pablo de Greiff censuring is good for Yahapalanaya government. He is saying to Ranil that more they hit him more surely he will win. These are the Yahapalanaya donkeys all these times fooling the Modayas as that they have turned around the opinion of the IC and that is how they saved the war heroes. Now he is telling to the Modayas that Yahapalanaya is not any inch shorter to Chitanta government on fooling the IC with their Aappa diplomacy. This new courage to publicly dupe to IC came only after Ranil had signed & sealed all his Hangbangtota and other Land sales with China.

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    UN and UNHRC also know what Jehan PhD and Yahapalanaya are cooking. When they lose Lankawe to China fully, they will wake up and take action on Lankawe for that.
    Jehan PhD is advising Ranil of how to milk votes from Modayas using UN Special Rapporteur Pablo de Greiff censures. Yet, I doubt if Ranil needs Jehan PhD’s advice. He must be having even better methods to use it. What is interesting in the entire essay is still Ranil and Jehan are scheming to win election using UN Special Rapporteur Pablo de Greiff’s statement. But, on the other side, for the first time one Japanese consultant (all Japanese consultants and envoys from Akashi has been talking favorably to Lankawe) Dr. Motoo Nuguchi has said something that is not getting along with Appe Aanduwa. Basically this is what it is:” Lankawe has enough setup to carry forward the Transitional Justice, but is lacks the will to do it”. He brought their war experience to tell Lankawe what technology needed to accomplish the UNHRC resolution 30/1. He has found he has nothing to advice as all laws needed are there in place. So, will ever in history of Lankawe, the Yahapalanaya or any other politicians go to public and say, “It is not for Prince Zeid, It is not for Pablo de Greiff, it is not for Ben Emmerson, It is not for Yasmin Sooka, It is not for Motoo Nuguchi, but as we are Lankaweyans, it is for us; it is we who have to restore the law order for us. It is time for us to accept the responsibility for the genocide crime we committed!”

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