By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence is due to visit Sri Lanka on the invitation of the Government of Sri Lanka, on rather a long visit, from 10th to 23rd October 2017. Almost two whole weeks.

According to the Office of the High Commissioner’s (OHCHR) website, Mr. Pablo de Greiff’s visit is “to examine the progress made in redressing the legacies of massive past violations and abuses, including those that resulted from a conflict that spanned more than 25 years.” 

Describing him as a “UN Expert on Transitional Justice” the news item adds that “In 2015, the Government of Sri Lanka committed itself to designing and implementing a comprehensive transitional justice strategy.”

In September this year, in the Special Rapporteur’s report (A/HRC/36/50) to the Human Rights Council, Mr. de Greiff thanked Sri Lanka for the invitation and “regrets that his requests for visits to Brazil, Cambodia, the Democratic Republic of the Congo, Guatemala, Guinea, Indonesia, Japan, Kenya, Nepal and Rwanda are still pending.” Interesting.

He also revealed that “On 16 and 17 May 2017, the Special Rapporteur participated in the inter-agency retreat on the theme ‘United Nations support for transitional justice in Sri Lanka’, held at United Nations Headquarters.”

Transitional Justice

According to Report of the UN Secretary-General in 2004 on ‘The rule of law and transitional justice in conflict and post-conflict societies’, “The notion of ‘transitional justice’ …comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.”

What prompted the present Sri Lankan government to commit itself to “designing and implementing a comprehensive transitional justice strategy” in 2015? What was Sri Lanka transitioning from? What was it transitioning to? TJ evolved as a response to transitions to democracy from dictatorships (military, one-party, apartheid) and its mechanisms were aimed at establishing ‘rule of law’ in contexts where independent institutions had been wrecked.

The Special Rapporteur’s report presented in September 2017 confirms that “Even a cursory review of the development of the paradigm of transitional justice over the past 30 years suggests that it emerged from the experiences of a set of countries – in the Southern Cone of Latin America, to a lesser extent from those in Central and Eastern Europe, and then in South Africa – that shared many characteristics.”

In this context, he says “Assisting societies devastated by conflict or emerging from repressive rule to re-establish the rule of law and come to terms with large-scale human rights violations, especially within a context marked by broken institutions, exhausted resources, diminished security, and a distressed and divided population, presents a daunting challenge…”

This challenge is identified as “…the establishment or reestablishment of an effective governing administrative and justice system founded on respect for the rule of law and the protection of human rights.”

The situation in Sri Lanka was not exactly “a context marked by broken institutions, exhausted resources, diminished security, and a distressed and divided population…” The institutions were not “broken” and we had a functioning judiciary.

What made Sri Lanka in 2015 require “the establishment or reestablishment of an effective governing administrative and justice system”? Sri Lanka emerged from an armed conflict, certainly, but the State’s strength, coherence and functional competence were manifest in that it successfully defeated a separatist terrorist army and reestablished its territorial integrity, while remaining a multiparty democracy with functioning institutions. Throughout the war, the state paid the salaries of government employees and transported food and medicine to the population in the conflict areas which was not under its control. This is considered unprecedented in an armed conflict. So what made Transitional Justice applicable to Sri Lanka?

The Report of the Special Rapporteur

In the impressive report (A/HRC/36/50) presented to the UN Human Rights Council this September, the Special Rapporteur queries whether “the same model of transitional justice forged in post-authoritarian transitions can be applied to post-conflict transitions without modification.”  He further states that “transitional justice is not a “universal policy tool” that works equally well in all contexts.” He identifies what he calls “a generalized tendency to copy institutions regardless of contextual fit” using a term from economics called “isomorphic mimicry” which is unhelpful. He calls instead, for a “close fit between problem and remedy, between context and solution”.

In the situations that have shaped TJ so far, the Special Rapporteur identifies commonalities such as “a type of transition that may be characterized as “regime failure”, either “outright collapse or terminal weakening.” Clearly, this was not the case in Sri Lanka.

In addition, “Most States concerned regarded themselves as recovering legal traditions temporarily disrupted by authoritarianism…Transitional justice was also made feasible by the fact that the violations were predominantly and overwhelmingly perpetrated by just one actor…”

He adds that “proponents of transitional justice have been much less ready to heed rhetoric about context sensitivity than it should have been, as evidenced by the suspicious resemblance of institutional policies despite the very significant differences in the contexts in which they are applied.”

In 2015, when the incoming Sri Lankan government readily agreed to design a transitional justice process, I wonder if it had thought the matter through or was guilty of “isomorphic mimicry”. Or was it something else altogether? 

In his excellent report, the Special Rapporteur admits the difficulties in applying TJ in post-conflict situations. “…Some of the background conditions … in post-authoritarian settings are simply absent in most countries in a post-conflict situation. In these contexts, drawing familiar lines between contending forces, between civilians and armed agents, and even between victims and perpetrators, becomes increasingly difficult.” (My emphases- SdeSJ)

The existing mechanisms, according the Special Rapporteur, were a response to “the result of the brutal exercise of State power …These States were emerging from authoritarianism… The violations were the result of the abusive exercise of a tremendously asymmetric State power”. 

This description does not apply to a State fighting a formation such as the LTTE, with its own army, navy and fledgling air-force, not to mention large numbers of suicide bombers in civilian areas outside the conflict zone.  The Special Rapporteur recognized this in his differentiation:

“…while in post-authoritarian contexts the State is overwhelmingly responsible for violations, conflict scenarios have a more “horizontal” or symmetrical distribution of violence… in which multiple agents of violence operate. In the words of one author, ‘chaos has replaced tyranny as the new challenge to human rights in the twenty-first century’.”

As such, his recommendations include “further research and discourse aimed at clarifying the role of armed non-State actors in the international legal framework. The lacunae in this framework concerning their obligations, rights and responsibilities, especially in post-conflict settings, are an obstacle to the implementation of transitional justice measures. Different United Nations organs, in particular OHCHR, could take the lead in these discussions.”

However, even in the differentiation of post-conflict as opposed to post-authoritarian transitions in the Special Rapporteur’s report, things don’t exactly fit with regard to post-conflict Sri Lanka:

“…post-conflict transitions are conducted in a context of significantly greater scarcity of security and development.  Cycles of violence, to which many of these countries have been subjected, affect all dimensions of life. Conflict decimates infrastructure, diminishes foreign and local investment, distorts government expenditures, decreases revenues, disrupts education, and generally depletes social capital.”

Certainly by 2015, when we signed up for TJ, all of the issues mentioned had been taken care of by the State, as part of the post-war processes. As for government revenue, today with a new government in place after democratic elections in peacetime, the growth rate has halved from that maintained during war time, and well below the spurt Sri Lanka experienced in the immediate aftermath of the victory.

Another indicator of post-conflict societies requiring TJ is described in the report as containing “…institutions that are considerably weaker in terms not only of their extent of coverage but also of their depth. In such contexts, State institutions do not cover the entire territory, and significant legal vacuums exist, in addition to enforcement deficits”. This had also been dealt with when the LTTE was defeated, and certainly by 2015, democratic elections had been held at all levels of the political and governance structure in the former conflict areas.

When TJ is applied in the Sri Lankan context, these therefore cannot be the relevant considerations for its application. The question has to be posed then, whether the Sri Lankan context qualifies for Transitional Justice at all.

Can a legitimate State with uninterrupted democratic elections and several changes of governments throughout the period of violent conflict, and with functioning democratic institutions, be a subject for a Transitional Justice solution? Justice, most certainly, but Transitional Justice? Is there a line of demarcation, or does every post-conflict process, even after a decisive victory for the democratic State rather than a mediated/negotiated peace, come under TJ, and if so on what basis?

In preparation for the Special Rapporteur’s report on his global study on Transitional Justice, (A/HRC/36/50/Add.1), five regional consultations were held, with States, UN agencies, regional organizations and civil society to understand the regional specificities, share priorities, lessons and good practices. The consultations took place in: Cairo, Buenos Aires Kampala, Berlin and in Colombo last year.

In the comprehensive report that followed, Mr. Greiff identifies what he calls “The most important contribution of transitional justice”. He says that it is “quite simply, its unpacking of the concept of justice into constituent and mutually reinforcing elements: truth, justice, reparation and guarantees of non-recurrence, in recognition of the fact that criminal justice alone would not be enough to satisfy the justice claims of victims of massive or systematic human rights abuse.”

This then seems to be where the line of demarcation exists. TJ applies where ‘criminal justice’ alone would not be adequate and it would not be adequate only in cases where “massive or systematic human rights abuse” has taken place.

Sri Lanka had not agreed that these conditions exist in its case, according to the outcome document of the independent commission appointed to look into allegations of abuse during the conflict. The LLRC report (as it is commonly known) identifies individual instances of abuse which it recommends should be independently investigated under the criminal justice system, but does not find evidence of ‘massive’ or ‘systematic’ abuse.

According to the OHCHR, Mr. Greiff is expected to meet “Government officials at central and provincial levels, representatives of the legislature, members of the judiciary, the armed forces, law enforcement officials, religious leaders, political parties, the Human Rights Commission, civil society, victims’ groups, academics and representatives of the international community.”

In this context, serious critical engagement with this mandate holder by all who are concerned in order to help him understand the complexity and specificity of the context, political and contemporary historical, in which TJ is sought to be applied in Sri Lanka, could be the most constructive approach.