By Jehan Perera –

Jehan Perera

The commencement of the UN Human Rights Council session this week has prompted the government to give renewed attention to post-war issues to which the international community has given its attention. President Maithripala Sirisena has said that Sri Lanka is considering withdrawing its co-sponsorship of the October 2015 resolution at the Geneva-based UN Human Rights Council which wants the government to address accountability issues, including alleged violations of human rights during the final phase of the military operations to defeat the LTTE. The president had earlier promoted the idea prior to attending the UN General Assembly last September that Sri Lanka should withdraw from its commitments to the UNHRC resolution that was co-sponsored by the government. On the other side of the divide, a hartal and shutdown of Tamil areas in the North and East is taking place to protest against the government’s delay in implementing its Geneva commitments.

Among the key challenges to which the government has been giving its attention to since the co-signing of the UNHRC resolution are the return of land to the people, release of those held in custody for long periods without trial and the question of missing persons. In addition, the government is presently focusing on the replacement of the Prevention of Terrorism Act which was approved by the parliament as a temporary measure in 1979, but which has remained on the law books to become the mainstay in the country’s national security arsenal. It was used in full measure to tackle both the Tamil and JVP rebellions. The government has come up with a draft Counter Terrorism Act (CTA) which has still to be presented to parliament for its consent, which will most likely be forthcoming without too much revision.

The CTA is a considerable improvement over the PTA, especially in terms of its human rights protections, which includes making confessions given to the security forces inadmissible for legal self-incrimination purposes. Although more palatable than its predecessor, the CTA itself has yet to be presented to parliament which will be ultimate authority of passing and implementing the law. There have been criticism from the various sides of the ethnic and political divides. On the one hand, those viewing the legislation from the perspective of human rights have been critical of its potential for abuse. On the other hand, proponents of national security, to whom the president has become increasingly deferential, are critical that it is too lenient to potential terrorists. The difficulty of reaching a decision is compounded by the fact that after the breakdown of the UNP-SLFP alliance, the government does not have a majority in parliament.

Truth Commission

The other major legislation that the government is working on is the Truth and Reconciliation Commission which is one of the four mechanisms to ensure post-war justice in terms of the October 2015 UNHRC resolution. So far the government has fully established only one of these four mechanisms, the Office for Missing Persons, which has in recent weeks been playing an active role in ensuring that the mass grave in Mannar is properly investigated. This itself shows the controversial but yet important nature of this mechanisms. The remains of more than 300 persons have so far been recovered from this mass grave including those of nearly 30 children. Some of the remains have been sent to the US for laboratory testing with regard to the dates of their burial.

The government has also passed legislation to set up an Office for Reparations which is meant to compensate those who became victims during the past period of violence and repairing the damage to the extent possible. The law states that persons who have suffered damage as a result of loss of life or damage to their property or persons in four contexts are those who are entitled to reparations. These are in the context of the war that took place in the Northern and Eastern Provinces, in connection with political unrest of civil disturbances, in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or due to an enforced disappearance. The closeness of the vote in parliament, with just 59 of the 225 parliamentarians voting for it, and 43 opposing it, reveals the wariness with which post-war reconciliation continues to be viewed. One of the controversial issues highlighted during the parliamentary debate was whether families of LTTE members would also be entitled to reparations.

The government has so far not publicly disclosed the content of the legislation regarding the proposed Truth and Reconciliation Commission. In October 2015 when the government co-sponsored the UNHRC resolution it referred to a truth-seeking mechanism that would be accompanied by a compassionate council drawn from the religious clergy. This suggested a provision for amnesty along the lines of the South African Truth and Reconciliation Commission that functioned more than two decades ago. However, in the intervening years international law has grown more strict with regard to amnesties and certain types of offences, including war crimes, are not eligible for amnesty. While the draft legislation has been prepared, it is awaiting President’s Sirisena’s concurrence. In the context of the narrow vote in favour of the Office for Reparations, the president’s political support will be essential in mustering the required number of votes in parliament.

Overarching Goal 

The most difficult mechanism for the government to deliver on in terms of its commitments to the UNHRC resolution of October 2015 would be the judicial accountability mechanism which would deal with the issue of war crimes. It is a difficult issue on because this would be seen by the general population as targeting those soldiers who won the war, and would be projected as such by those who are politically opposed to the government. Indeed, President Sirisena has gone on record several times saying that he will protect the armed forces. The UNHRC resolution also calls for the participation of international judges, prosecutors and investigators which is anathema to those who call for the protection of Sri Lankan sovereignty under all circumstances. In addition, the question of accountability has been challenged by members of the former government who are concerned that they will also be held to account through the international legal principle of command responsibility.

During his recent four day visit to the North, Prime Minister Ranil Wickremesinghe referred to the issue of past violations of human rights. Addressing a gathering in the former LTTE administrative capital of Kilinochchi, he said “It is time that Sri Lankan communities forget and forgive the past difficult history and move forward.” He added that “We all must admit that mistakes were made, apologise to each other and moved forward to achieve reconciliation.” In a reference to the proposed Truth and Reconciliation Commission to deal with issues of the post-conflict reconciliation he also said legal action against those responsible may achieve nothing but a lot more could be achieved by forgiving and forgetting the past.

However, the indications are that the prime minister’s words did not have the positive and healing impact he may have intended them to have. There is much evidence from psychological studies that letting go of hatred and vengeance is the better way forward for those who have suffered violations of their rights and human dignity. But while individuals may forgive and forget, the state needs to hold every wrongdoer accountable for their actions, whether high or low, which is the rule of law. Former president Mahinda Rajapaksa has recently said both the security forces and the LTTE were responsible for crimes. He has also said that if those crimes were unrelated to the war, and such things actually happened and there should be punishment for the culprits. What he had objected to was a policy of pardoning one side and punishing the other. Prime Minister Wickremesinghe needs to make it known that his words did not mean that the Sri Lankan state would close the door on the past but it would continue to deal with the issues of crime and punishment in an overall context in which reconciliation is the goal.