An opinion piece by Nikhil Narayan, ICJ’ South Asia Senior Legal Adviser.
“The regime has changed, but the system remains the same; how can we expect justice from them?,” asked a Tamil nun who survived the brutal conflict between the Sri Lankan Government and the Tamil Tigers in Vavuniya district in Sri Lanka’s Northern Province.
Her sentiments echo a growing sense of skepticism shared by many in the country’s north and east in the willingness and ability of the Sri Lankan State to deliver justice and accountability for victims of the conflict and their families.
Interviews with local lawyers, activists, victims and victims’ families during my recent visit to the north and east reinforced the importance of ensuring a credible transitional justice process that will provide a genuine remedy to victims and survivors, and in so doing restore public confidence in the State.
Achieving this credibility requires, among other things, the participation of a majority of foreign judges, prosecutors, lawyers and investigators in any proposed special tribunal created to address alleged war crimes, crimes against humanity and other serious human rights violations committed by all sides during the conflict.
Since the new government came to power a little over a year ago, Sri Lanka has taken some important and welcome steps towards national reconciliation.
Particularly, victims’ hopes for justice were bolstered by the government’s apparent acceptance of the September 2015 report of the UN High Commissioner for Human Rights documenting alleged serious human rights violations and abuses committed by all sides to the conflict.
The Sri Lankan government even co-sponsored the subsequent Human Rights Council resolution, which affirmed the importance of the participation of foreign judges, prosecutors, lawyers and investigators to ensure the credibility of a “judicial mechanism” as part of the justice and accountability process.
But the government has yet to demonstrate any concrete initiatives towards fulfilling this promise of accountability.
Recent statements emanating from various quarters of the government have fed mistrust among victims in the war-affected north and east.
President Sirisena’s January 2016 BBC interview, in which he emphatically rejected the possibility of foreign participation in a proposed accountability mechanism, alarmed many.
Equally troubling were his comments expressing full confidence in the existing justice system and questioning the UN report’s allegations of war crimes committed by the Sri Lankan Army.
Prime Minister Wickremesinghe’s statements only a few days later during his visit to Jaffna to mark Thai Pongal, that the majority of missing persons should be considered deceased, also did not go unnoticed.
Families of the disappeared have the right to know, to the extent possible, the whereabouts of their family members.
The PM’s message suggesting knowledge and admission of their fate, but without further details, left families wanting; I was told more than once that the PM’s statement on the missing was “hurtful” to the families of the disappeared.
Lawyers, activists and medical officers dealing with ongoing human rights cases complained that it is common for such cases to drag on for as much as 10 years due to delays in the police investigative stage, as well as further delays in prosecuting the case by the Attorney General’s department if and when the investigation is concluded.
When asked whether these delays were due to lack of political will or capacity, I consistently received some form of non-verbal response amounting to: “Take your pick.”
Police also remain inadequately trained in investigative methodology, continuing to rely almost exclusively on confessions, often elicited by torture or other forms of coercion.
Under the current government, the climate of fear in the north and east has no doubt markedly improved; under the prior regime, for instance, I myself would not have been able to visit, move around and conduct interviews as freely as I did.
At the same time, surveillance, threats and intimidation have not ended completely.
Victims and lawyers in cases involving the armed forces as alleged perpetrators still face intimidation and obstruction of investigations.
Sri Lanka has had a long and well-documented history of creating domestic commissions of inquiry into serious human rights violations during the conflict, none of which has been successful in adequately addressing issues of impunity, justice or truth-seeking.
The ICJ has for the past thirty years documented the gradual erosion of judicial independence under successive governments, and the resulting culture of impunity in the justice system.
In its 2010 report, for example, the ICJ highlighted the failure of the criminal justice system, as well as the many commissions that have been established, to satisfy the State’s obligations to its citizens due to an absence of State accountability, limitations in the investigative and prosecutorial system and limitations in the law.
While the new government has taken some steps to address this, most notably with the restoration of the Constitutional Council, much more work remains to be done.
In such a context, the existing justice system is poorly equipped to handle cases of gross human rights violations and violations of international humanitarian law, including alleged war crimes and crimes against humanity, that will require not only highly technical forensic evidentiary and investigative expertise, but will also involve specific prosecutorial and judicial capacity to deal with issues of modes of liability such as command responsibility for superior officers.
The nun in Vavuniya told me: “We want them to accept responsibility, tell us the truth, and then we can have reconciliation; it is not about revenge.”
The call by domestic and international human rights activists and observers for an accountability process that involves, as a minimum prerequisite, the meaningful participation of a majority of foreign judges and other personnel is very simply a matter of restoring public trust in the rule of law in the country, through a credible, impartial, independent, victim-centric transitional justice process that effectively addresses victims’ right to truth, justice, remedy and reparation, and on whose foundation the country can move forward with genuine reconciliation.
The GOSL can take a significant step towards bridging this trust gap in the immediate term by reaffirming in no uncertain terms its commitment to the promises to which it voluntarily agreed in Geneva last year, including its recognition: that “accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system[;]” that “a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality;” and, of “the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”.