By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

When UN Special Rapporteur Pablo de Greiff arrived in Sri Lanka on the 10^th of October, the Foreign Ministry issued a statement the next day which said that “the government is under no obligation to take his advice and will decide whether there was anything that they needed to heed in September 2018 when his final report would be presented to the Human Rights Council.”

Pablo de Greiff however was to create a mini-storm at his mandatory press briefing at the end of his two week tour, when he chastised the government for its slow progress in the implementation of Transitional Justice and noted his concern at “the use of rhetoric such as ‘war heroes will never be brought to trial’.”  The Special Rapporteur explained that “This seems to me to misrepresent the target of transitional justice accountability measures …also by forgetting that no one who has committed violations of human rights law or of the laws of war deserves to be called a hero.”

It was President Sirisena who assured the country that war heroes would be protected, while his Prime Minister and the Foreign Minister (at the time), committed the government to Transitional Justice.

On post-conflict processes such as issues of reconciliation and accountability, while respecting universal norms and guidelines, it is still the sovereign decision of a country how it will best serve the people’s and the nation’s interests. This is evidenced by numerous and widely diverse instances of post-conflict decisions on accountability by governments around the world. It is a process so fraught with difficulties and contending narratives that the people look to their political leadership to tread with caution and wisdom in handling such responsibilities.

It is this grave responsibility for the consequences of its action that demands that States search seriously and relentlessly for conceptual clarity and underlying assumptions when offered advice and solutions by the well-meaning quarters of the international community and in order to benefit from the collective expertise of the United Nations. One’s own unique circumstances should be carefully analyzed and presented in order for those solutions to be meaningfully adapted, and for our experiences to be of use to the rest of the world.

Transitional Justice, the supposed panacea for all our post-conflict problems, was hastily introduced deep into Sri Lanka’s own system and embedded within it way before the public came to know about it, without adequate discussion of its underlying logic for applicability to Sri Lanka, or examining the spread of its remit.

Instead, it was swallowed whole and entered the mainstream to be regurgitated by our own Foreign Ministry as Minister Mangala Samaraweera threw himself with unrestrained enthusiasm at Resolution 30/1 which promised the implementation of Transitional Justice. And now we have the Special Rapporteur hurrying us along, disappointed at the delay in implementing its promises.

However, Pablo de Greiff, Special Rapporteur, presenting his report at the 36^th Session of the Human Rights Council on the 21^st August 2017 admitted that it was still an evolving concept and its application to post-conflict situations needed further study, considering its origins, when he stated “Although the relevance of the distinction between post-authoritarian and post-conflict transitions has not often been explicitly thematized in literature on transitional justice (perhaps because of its origins in cases of post-authoritarianism)…”

In his submission, he recommends further study:

“The Special Rapporteur calls for further study and reflection about appropriate means to satisfy the rights to truth, justice, reparation and guarantees of non-recurrence in the post-conflict cases.”

This was as recently as August 2017, well after we ourselves embraced it tightly to our chest at the UNHRC and here in Colombo with no hesitation. By contrast, Pablo de Greiff himself, in August, attaches certain caveats to its adoption:

“Despite this success, several caveats are in order. First, transitional justice is but a part of a broader and deeper transformative agenda that States that have suffered systemic failure manifested in massive rights violations typically call for. Such States usually need reforms, including reforms of a socioeconomic, administrative and fiscal nature, that go beyond the remit of transitional justice, even though they should be coordinated with it (see A/68/345).”

“Systemic failure”? Would you describe Sri Lanka as a state that suffered “systemic failure” which manifested in massive rights violations? He says, “Such States usually need reforms….” But does the government agree that Sri Lanka is such a State? Since “systemic failure” seems to be the sine qua non for transitional justice, is that the basis on which the government signed up for it?

He goes on to give some advice which this government should have heeded before its headlong plunge into TJ:

“… transitional justice is not a “universal policy tool” that works equally well in all contexts. The rapid dissemination of transitional justice (and a generalized tendency to copy institutions regardless of contextual fit, what some economists and organizational sociologists call “isomorphic mimicry”) may have obscured this otherwise obvious fact.”

Searching for the origin of the decision to apply “Transitional Justice” to Sri Lanka’s reconciliation process, I came across a paper titled “Concept Note Template, Peacebuilding Fund Project, Peacebuilding Priority Plan – Sri Lanka” published with the official logo of the  “UN Peace Building Fund”.  The Project Title is shown as “Support for Sri Lanka to design and implement transitional justice mechanisms: Phase 2”, dated January 2016.

Its Implementing Partner(s) are cited as:

“Secretariat for Coordination of the Reconciliation Mechanism, Human Rights Commission, Office on National Unity and Reconciliation, Ministry of Foreign Affairs, Ministry of Justice, Ministry of Women and Children Affairs, other line ministries as required, relevant justice sector and security sector entities, local civil society partners.”

There, under the heading ‘Rationale for the project’ the paper clarifies the origin of the Transitional Justice project:

“Following more than 25 years of armed conflict, and subsequent lack of progress in addressing past violations and abuses, in 2015 the Government undertook the commitment to implement a comprehensive transitional justice strategy, based on Human Rights Council resolution 30/1 (cosponsored by Sri Lanka) and in follow-up to the report of the OHCHR Investigation on Sri Lanka (OISL, A/HRC/30/61)”.

Referring to UN resolutions on peace building, it elaborates the rationale for Transitional Justice in Sri Lanka, which includes security sector reforms and contribution to “Constitutional aspects”.

It reveals this government’s commitment to this process originating in Resolution 30/1 in a process which it says was to be led by the Prime Minister’s Action Group:

“The Government of Sri Lanka has committed to the design and implementation of a comprehensive transitional justice approach (Human Rights Council resolution 30/1, para. 4) – a process to be led by the Prime Minister’s Action Group (PMAG), with the support of the Secretariat for Coordinating Reconciliation Mechanisms (SCRM), established in December 2015. In January 2016, the Government set-up a Consultation Task Force to elicit views and comments of the public on the proposed mechanisms for transitional justice and reconciliation. On 3 January 2017, the Task Force presented its report to the Chairperson of the Office of National Unity and Reconciliation…Additionally, Technical Working Groups were established to advise on different aspects of the design of the four respective mechanisms for truth, justice, missing persons and reparations. In August 2016, Parliament adopted legislation on the Office on Missing Persons; its enactment and operationalization are expected shortly.”

The Justification for the involvement of the Peacebuilding Fund is elaborated under the heading “Objective of PBF Support, Theory of change”:

“The project is designed on the premise that IF the Government and conflict-affected society commit to a) uncover the facts and openly discuss the past, b) investigate, prosecute and try those involved in gross human rights violations and serious violations of international humanitarian law, c) provide effective redress to the victims and their families and d) reform institutions and other structures which enabled the violations in the first place, AND through an active and meaningful involvement of victims, witnesses, civil society and other relevant stakeholders in the consultations processes in order to design a comprehensive transitional justice framework, THEN the process of accountability, reconciliation and healing stands a better chance to effectively contribute to sustainable peace and security.”

The concept note referred to above refers to two UN resolutions which are very similar. One of them titled ‘Review of the United Nations peacebuilding architecture’ dated 27 April 2016, has an Operative paragraph which refers to TJ as follows:

“12. Stresses that a comprehensive approach to transitional justice, including promotion of healing and reconciliation, a professional, accountable and effective security sector, including through its reform, and inclusive and effective demobilization, disarmament and reintegration programmes, including the transition from demobilization and disarmament to reintegration, are critical to consolidation of peace and stability, promoting poverty reduction, rule of law, access to justice and good governance, further extending legitimate State authority, and preventing countries from lapsing or relapsing into conflict…”

This shows the sweeping remit of TJ, with “a professional, accountable and effective security sector…effective demobilization, disarmament and reintegration programmes…transition from demobilization and disarmament…promoting poverty reduction, rule of law, access to justice and good governance, further extending legitimate State authority…etc.” which sounds more like a prescription for Sierra Leone under Charles Taylor with its dangerous and insane militias rather than the strong democratic state of Sri Lanka with a well-trained and disciplined military that was victorious against unrepentant terrorism and remained a democracy with functioning institutions throughout that period. How is this prescription suitable or relevant for Sri Lanka?

Here we have the Peacebuilding architecture led by the Prime Minister encompassing an array of other institutions, Human Rights academia and non-governmental partners, already neck deep in TJ with its remit spreading far and wide. No serious, critical evaluation as Mr. De Greiff himself had suggested in that architecture, at least none that was seen in the public domain.

When making decisions about the post-conflict order, the State which has to make that unenviable decision to go to war (or not) to protect its people and its territory, is also expected by the people to ensure that the post-conflict process is safely, fairly, prudently and intelligently carried out with carefully considered gradualism and responsibility towards all communities.