Colombo Telegraph

The Challenges Of Implementation Of The UNHRC Resolution

By Chandra Jayaratne

Chandra Jayaratne

It is most likely that the post OISL, transitional justice, reparations, reconciliation, and accountability, mechanisms and non-recurrence assurance systems and structures will be made up of the following initiatives:

* Public petitions be called for by the TRC and received possibly regionally and also centrally. It is not known as of now, whether the Commission members, spread out amongst regions, with their support teams will have a process of regional hearings, in addition to receiving petitions. Will such a structure of preliminary hearings identify prima facie, the key historical events, incidents, harassments, denial of rights, ethnic-religious discriminations etc, along with other war crimes complained of to have taken place. It is also unknown whether only impacted persons or groups collectively can submit petitions/complaints or whether Institutions of the state, including the armed forces and police, Public Institutions (like HRC, NGO, INGO’s) and civil society leaders and activists will also be allowed to submit petitions/complaints and or submissions. Further it is not sure as to whether the petitions received by LLRC, Paranagama Commission and those collected recently by Office of National Unity & Reconciliation, as well as evidence gathered by Darusman Panel, OHRC, UN, UNIWEG, Red Cross, recently published torture reports and others purported evidence will have any part within this process and will be included as complaints. The role allowed to Diaspora to petition is a further issue of uncertainty

* A support arm of the TRC to record, collate, classify, group, prioritise, the petitions, and separate them by incidents/ events and by types of IHL violations

* The investigative arm to investigate the specific prioritised petitions and incidents/ events and IHL violations and discriminations sent for investigation by the TRC

* The investigation reports compiled by the TRC to be reviewed by AG’s department and classified by those for reference to

  • TRC for hearing
  • For Prosecution by the specially created courts
  • Recommending amnesty
  • No further action

*TRC may also call for and receive confessions from persons believed to be perpetrators, of any o crimes committed and seeking amnesty for any potential perpetrated crimes

* It is possible that the cases before the TRC seeking amnesty may be selected only if such cases conform to the South African Model, and such cases represent instances which fall in to the following categories:

  • Political Motivation – where the act or the purported crime was done as a part of pursuing a state led objective of fighting terrorism, or on the orders of a superior officer within the formal command structure or in pursuit of an official task assigned to such member eg. like extracting Legitimate information or evidence in fighting terrorism or a firm personal and moral belief that the act was in pursuit of a person’s core values
  • Proportionality -direct and indirect impact of the crime on those affected
  • Commitment to make full disclosure of the truth

* TRC will in respect of cases referred to them grant amnesty or in other cases refer the determined cases to the compassionate council for healing and reconciliation or actions within a framework of advisory and guidance toward reformation and reconciliation

* Reparation process to be adopted in the selection and assessment ;and administration and funding associated structures are unclear at present

* Missing Persons Commission will continue afresh with the process of dealing with the balance petitions/complaints received and any additional information transmitted to it by the TRC,. Its current mandate will from inquiry to include investigation, tracing, issue of death certificates, support closure, reconciling, associated reparations and payment of damages where appropriate to family members

* Towards non recurrence the planned strategies include, the new constitution and legal due diligence to assess statutory and legal reforms necessary to prevent a recurrence which will be initiated alongside a plan for economic and social upliftment/development facilitations essential in respect of the identified family members of the impacted as well as those bystanders impacted

The above initiatives are presently being planned and co-ordinated by a select team of experts, with parallel initiatives carried on in the PM’s office , foreign minister led team at foreign ministry, and several other initiatives running concurrently.

We presume that the several US /Norwegian and Japanese officials who visited Sri Lanka in the last two months have already had their say about their expectations of the structure and outcomes from these initiatives.

The next challenge will be to have these plans vetted by the South African delegation and. UNHRC teams due in January.

Thereafter the final process will be adopted by the Cabinet only after agreement of the final process with the President. Presumably this step will be preceded by informal reviews to win the support of the AG ‘s department and the Armed Services Personnel. The recent of a privilege card to ‘War Heros’ may be a part of this process.

As of now it is uncertain whether the cabinet will be forced by the Opposition to table in Parliament, debate and transparently adopt the planned processes.

The President having made three pronouncements already, stating that

  • no foreign judges will be included
  • Judicial processes will be strictly in accordance with Sri Lankan law and
  • War heroes and military commanders who led the battles will not be persecuted and will be protected

can agree to above and at the same time get the SLFP, the party whom he leads to agree to parliamentary support, thus obviating and early obstacles..

The President and PM, with the Foreign Minister, will need to change the present policy of keeping these processes under cover and unless it be a part of a major strategic communications programme commonly supported by media in general, it could be a real barrier when attempting implementation.

The President and PM, with the Foreign Minister could be heavily stretched and challenged in holding former President, and extremist political forces at bay and at the same time keep extremist monks, BBS down from challenging the planned processes supported by organized public protests. Civil society activists and newly formed resistance groups ( eg. Singha Le) and some media especially using the social media could also fan resistance and promote protests by their advocacy which can arouse the citizens and even military personnel and get them to join in the protest. A further challenge could be to hold the new coalition political grouping in the North and extreme Diaspora groups from challenging any moderation of what is planned.

In the face of these challenges will the government be able to deliver to tight deadlines, as now planned,the processes which can finally deliver on expectations of the UN, UNHRC , US, EUROPE, UK, Japan, India etc in line with OISL. This in my opinion may need a magician who is not easy to find within the present team in leadership!!!!.

With the PM still not believing in effective communications and hoping for a fait accompli based implementation processes, the planned processes can lead to the emergence of risks, especially as the government wants to hurry up the process.

In the above context a few serious questions arise ;

  • Is there political will ??? and will it be there long enough ??? and will it be able to withstand challenges from the several sources identified above ???
  • Will the military leadership accept the planned process ??? and allow it to be implemented in earnest, with Command Responsibility connected Joint Criminal Enterprise led prosecutions being instituted as part of the Process??? If so, can the systems and structures of governance be strong enough to charge the former Head of State, The Defence Secretary, armed services Commanders and the Senior Major Generals who ran the critical battles, if there is evidence to link them with serious war crimes???
  • Will the different political forces within the current coalition support the passage of new laws essential to progress the planned process?
  • Will the AG’s Department key staff be behind this process believing in the essential steps of the process to which their commitment is a must???
  • Will there be adequate funding for this initiative as well as funds for the payment of reparations and economic and social development in the former conflict affected areas ???
  • Can a devolution process that is effective and acceptable to all citizens be implemented alongside these prosecution and truth seeking processes???
  • Can this initiative be completed within a reasonable time as anticipated by the government and to the satisfaction of the UNHRC review of progress led deadlines?
  • How long before the Tamil militancy will re-emerge due to youth being alienated and feel that only the south has changed and they have yet again been cheated?
  • What positions will the new Northern Political heavy weights led hard line group take and can it derail the process if they demand devolution beyond acceptable and this lead to a boycott of proceedings?
  • How long before the extreme forces of the south begin to disrupt the processes? Can the BBS and Slngha Le and other groups be moderate with their demands?
  • Ever hardening and intensifying political challenges of the coalition government, party differences coming to the fore during the forthcoming local government elections, and underhand destabilising forces of the previous regime and extreme forces of the North and East at play, can this process be initiated before the next UNHRC Session?
  • Can effective steps in reforming the macro economy, fiscal deficit and balance of payments (impact due to widening trade deficit) be managed alongside this initiative (all in the context of rising US Dollar interest rates and the heavy debt burden) ? Having thrown away in unaffordable consumption, the savings from lower oil prices globally, can essential reforms, especially the essential need to prepare reserves to be adequate to face the 2018 lumped up USD 5 billion repayment of debt, be progressed through parliament and without hard response cation by the impacted public?

In addition to the above, the following concerns will also challenge the successful achievement of the end objectives of the joint OISL resolution:

What will be the state of mind of those whose petitions yet again may not receive an individual review and response? and will reconciliation and effective closure be denied to a majority of complainants?

What will the state of mind and response reactions be of those, who having played out their trauma before the TRC, find that either

  • no response action is taken by TRC or
  • an amnesty is granted as a blanket cover to perpetrators or
  • No prosecutions follow even when strictures are placed by the TRC?

What will the state of mind and response actions be of those who complained, if the TRC refers the wrong doers to the compassionate council for repentance and reconciliation?

What will the state of mind of southern communities be (ie those who treat the last last regime, it’s leaders and soldiers as heroes) if the Command Responsibility driven Joint. Criminal Enterprise led prosecutions take place?

Yet again expectations are created in victims and families and if dashed again what will Be the response actions to follow?

How will the Diaspora extremists and middle ground groups in the Diaspora play out?

How much of funds will be required for reparations and socio economic development and empowerment of the affected communities and families? And what impact will it make on the deficit and solvency of the state?

Will the historical memory points (especially cemeteries and gravesites) erased by the last regime and the military, be restored and what will be the impact both in the North and South?

Will the hearings before TRC be non adversarial, conducted in local Languages and will they allow participants to be emotional in their presentations and dealt with compassion and understanding?

Where will these TRC hearings be held? (ie. in the usual family residential areas of impacted ) and will those appearing receive the transcripts and follow up action updates from TRC within a reasonable time?

How fair and adequate will be reparations be? and

Will there be some enforced action in forcing the family members of victims to exchange reparations for closure, even where no satisfactory truth of what happened emerge from inquires and no bodies are exhumed for reburial?

When will occupied by military and state lands be released to original owners in full?

When will the security and safety issues of the impacted and single women headed households and young females be normalized?

Will Muslims and Sinhalese evicted from the North and East be resettled or be adequately compensated?

Will the Missing Persons Commission accept responsibility;

  • To give individual attention to all petitions received?
  • To provide Individual responses to petitions and complaints re missing persons?
  • Find the truth of what happened to the missing persons by effective and impartial investigation?
  • Unearth burial sites, and unnamed grave yards and arrange judicial exhumations and recover bodies and where necessary ?and
  • Arrange cremations according to respective cultural and religious practices?
  • Make reparation payments to the victims’ families without conditionality?
  • Arrange effective death notifications processes to be handled with compassion and understanding?
  • Report incidents for investigation and prosecution of perpetrators?

Will psychosocial and trauma needs and medical needs of those with shrapnel and other external impacts be treated with care and concern with best medical and psychological care on a priority basis?

  • Will the end outcomes include clear findings and recommendations on
  • What was the origin of this conflict and what were the drivers of such conflict?
  • How the Rule of Law, Justice ACCOUNTABILITY-and good governance did processes COME TO BREAKDOWN? AND
  • How basic issues of housing, health, sanitation and education, electrification and empowerment be handled with priority after effective communication and agreement with victims and families?
  • What urgent steps supported by empowerment processes will be taken to have restored and take root early, the lives and livelihoods of victims and family members
  • Will the wrong historical records, education curricula and text books and records of origin of peoples, their cultures and practices and religious and ethnic beliefs be spelt out with accuracy and with appropriate sensitivity? and
  • Will it lead to recommendations of how in the longer term ideological differences that have to the forefront during the recent conflicts are eradicated in a manner fitting and embed celebration of ethno cultural and rigorous diversity in society bound by one people of the nation

With more concerns and risks seen in the processes emerging for implementation of the OISL resolution as highlighted above with possible risks emerging of;

  • destabilisation of the government,
  • unhappy international community and Diaspora,
  • risks of military intervention,
  • political instability,
  • taking the eyes away from good economic governance,
  • southern cou minty being disturbed by extremist forces and similar actions in the North,

Should this process initiated by OISL resolution not be rushed and trust upon the impacted without an effective communications campaign in place and with the families of victims already suffering from trauma, poverty and concerns of safety and lack of housing, services, education and health.

In addition any such implementation process must be proceeded by effective psycho social and trauma support, reparations and economic and social empowerment of the impacted and their families, with significant de-militarization and return of land acquired by the state and armed servicse

These prior actions must be in place before attempting restorative justice and accountability led steps.

As for non recurrence, ONUR led actions planned at a macro level and urgent and equitable reform of the constitution removing discriminatory actions and impacts on segments of the society, especially those in the minority and the planned reform of laws to take away barriers to reconciliation, equity, social justice must be in place before action under the other parts of the resolution dealing with restorative justice and accountability are initiated.

Further it is essential that both the Government and the Civil Society plan to institute in the longer term essential processes of de-mobilization of the armed services endowed with other attractive livelihood skills, legal reforms and the restoration of critical public institutions to assure functioning effectively of the rule of law and justice systems.

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