By Jehan Perera –

Jehan Perera

Countries re-emerging from decades of violent internal conflict are encouraged, sometimes against their will, into following an internationally prescribed trajectory of transitional justice. This is a concept that has taken root within the UN and international human rights systems after decades of being honed by practitioners and academics in the field. The basic idea of transitional justice is that accountability and punishment are necessary if there is to be sustainable peace, democracy and justice in those cases of protracted conflict in which there have been large scale violations of human rights.

Colombia is one of the countries at the cutting edge of transitional justice. Its government has reached a peace agreement last year with FARC, a long standing guerilla organization that has a history of engaging in armed struggle that goes back over half a century. Colombian president Juan Manuel Santos was awarded the Nobel Peace Prize as a result. Today, as part of its commitment to the negotiated peace process it has entered into with the Colombian government, FARC has yielded large tracts of territory it once controlled as it demobilizes its armed forces on the ground. Colombia might seem to be in an ideal situation but in reality the situation is much more complex.

Last month I was in Colombia with a group of peace workers from different parts of the world, but with an emphasis on South America. We came to take part in an interactive learning process, where the learning was not only in the conference hall but also out in the field. Among the highlights of the week long programme was a visit to the high security prison in the capital city of Bogota, where FARC rebels continue to be kept in captivity.

I expected to meet with war hardened veterans who had been fighters and part of an underground mafia of drug dealings and guerrilla killings. These had happened too, no doubt, but these aspects did not come across as the chief character of the FARC prisoners. What we encountered were leftist activists who might have been democratic political party cadres if they had not taken to weapons. We were taken up by their ideological clarity and continued passion. Any rebel who goes against the established order has to sacrifice the things we take for granted, such as family and normalcy.

Rebel Message 

Their message to us was that they had joined the rebel organization to change an iniquitous society. They had now been captured and imprisoned for terms of between 10 to 20 years and some of them had spent the larger part of their prison sentences. They expressed their support for the peace process. But they also expressed their anxiety that the agreements reached would not be implemented by the government. We heard reports that with the withdrawal of the FARC guerillas from the territories they once controlled, paramilitaries and state armed forces had stepped in to fill the vacuum.

It was not only the FARC members who were anxious about the future. Those who had been members of the government armed forces and police who we met also did not feel reassured by the peace agreement. They did not trust the FARC and believed that they would violate the peace agreement. They were also anxious about the prospect of being held accountable for human rights violations that had taken place in the military operations against FARC and the punishment that transitional justice processes might inflict upon them.

The majority of Colombian citizens voted against the peace agreement at the referendum as they thought that the FARC guerillas would get off too lightly while those in the security forces of the government would be penalized and national security would be jeopardised. Sri Lanka and Colombia bear a resemblance in respect of the suspicion and opposition to international standards of transitional justice in the majority of the population. The transitional justice commitments that Sri Lanka has pledged to deliver on is seen by the majority of the country’s ethnically divided population as being unfair by the Sri Lankan security forces.

In both Colombia and Sri Lanka, the majority of the population, and those in the political establishments, see the military as having performed their duties in the national interest. In both cases those on the losing side represent a minority of the population. Those on the winning side represent the majority. Those majorities who dominate the power structures in the two countries side with the military and not the rebel forces. This accounts for the governmental malfunction in both countries to implement the agreements they have signed.

In the prison in Bogota when we asked the FARC prisoners what they saw as the way forward, they said they wanted international monitors. They were sceptical that the government would implement the peace agreement on its own. In Sri Lanka, the Tamil minority is supportive of international intervention and tribunals. Those on the weaker side of the divide in internal conflicts do not trust the stronger side to be fair and impartial. There is a role for the international community as a counter balance to the asymmetry of power that cannot be overcome through reliance on internal actors alone.

Overcoming Problem 

In Sri Lanka, the UNHRC resolution that the government agreed to in October 2015 in Geneva to deliver on is victim-centered, and rightly so. It requires that the fate of missing persons be ascertained, that land taken over by the military during the war be returned, accountability for war crimes be ensured and the security sector reform including demilitarization and replacement of oppressive laws take place. The Sri Lankan government has been slow to deliver on all of these, which is why the government had to ask for a two year extension from the UNHRC in March this year.

A key problem in moving forward it appears, is the central role given to accountability and punishment in the public discussion of transitional justice. But it does not have to be this way. Transitional justice is composed of four pillars – those of truth, accountability, reparations and institutional reforms. It is when attention is focused on accountability and punishment, the desire for revenge and for getting even, that the other three pillars of transitional justice get sidelined in the public discourse.

There is perhaps a need to rethink how best to achieve transitional justice which a means to an end. The goal of transitional justice is a society that is set irreversibly on a course of sustainable peace and justice. There is a need to win the support of both the majority and the minority groups, so that the process is acceptable to all. The concept of restorative justice was developed most strongly in South Africa in its truth and reconciliation process, as opposed to retributive justice. This may be the way forward in Colombia and Sri Lanka.

Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within communities. This contrasts to more punitive approaches where the main aim is legally imposed punishments to meet legal standards. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the security and dignity of all. The realization of the Sri Lankan government’s commitment in terms of the UNHRC resolution to set up the Truth seeking Commission and to gazette the Office of Missing Persons (OMP) under a selected ministry could be the start of this restorative process.