Transitional Justice in Sri Lanka: Moving Beyond Promises Edited by Bhavani Fonseka The Centre for Policy Alternatives (CPA) is an independent, non- partisan organisation that focuses primarily on issues of governance and conflict resolution. Formed in 1996 in the firm belief that the vital contribution of civil society to the public policy debate is in need of strengthening, CPA is committed to programmes of research and advocacy through which public policy is critiqued, alternatives identified and disseminated. 6/5, Layards Road, Colombo 5, Sri Lanka Tel: +94 11 2081384, +94 11 2081385, +94 11 2081386, 011 5552746, 011 5552748 Fax: +94 11 2081388 Email: [email protected] Web: www.cpalanka.org Facebook: www.facebook.com/cpasl ISBN 978-955-4746-82-4 Printed March 2017 Positioned at a vital confluence of maritime routes, Sri Lanka has always been influenced by the dynamics of varied peoples. Transition is inherent on this island, which composes in infinitely complex, evolving systems, like a nautilus. The static component of our fractal growth is our attachment to the soil we were born on, that is eternally defined by maps and claims. Sunela Jayawardene “How do we keep the past alive without becoming its prisoner? How do we forget it without risking its repetition in the future?”1 1 Ariel Dorfman, Death and the Maiden, 1991 Table of Contents Preface - Juan Mendez 8 Introduction and Overview – Bhavani Fonseka 14 List of Contributors 35 Transitional Justice in Sri Lanka: Issues & 42 Challenges 1. Politics of Reconciliation in Sri Lanka - 43 Paikiasothy Saravanamuttu 2. The Role of Constitution Building Processes in 61 Advancing Transitional Justice and National Reconciliation: Options for Sri Lanka – Sakuntala Kadirgamar 3. Prospects for Transitional Justice in the 92 Constitutional Reform Process of Sri Lanka - Nabeela Raji 4. Buddhist Teachings, Ethnic Tensions & The 119 Search For Solutions – Kalana Senaratne 5. Conflict Legacies and Plural Histories: What are 143 the Possibilities for Sri Lanka’s Future? – Farzana Haniffa 6. The Difficulties and Probable Impossibility of a 170 Coherent Conception of Transitional Justice in Sri Lanka - Kumaravadivel Guruparan Key Areas in the Design and Implementation 189 of Transitional Justice Mechanisms and Initiatives 7. Truth telling in Sri Lanka: Past Experiences and 190 Options for the Future - Bhavani Fonseka 8. A Post-Conflict Criminal Justice Mechanism for 212 Sri Lanka: Practical Challenges and Next Steps - Pubudu Sachithanandan & Annie O’Reilly 9. Judicial Accountability for Conflict Related 245 Sexual Violence in Sri Lanka - Annie Woodworth 10. The Importance of Reparations within Sri 272 Lanka’s Reform Agenda - Bhavani Fonseka 11. Transitional Justice and the Right to Know: 298 Investigating Sri Lanka’s Mass Graves – Mytili Bala 12. The Right to Memory: A Forgotten Facet of 330 Transitional Justice - Gehan Gunatilleke Comparative Cases and Lessons for Sri 335 Lanka 13. ‘Saviours, Victims and Savages’ on the Post- 356 Conflict Circuit: The Field of Transitional Justice Vasuki Nesiah 6 14. “More than a Domestic Mechanism”: Options 391 for Hybrid Justice in Sri Lanka - Beth Van Schaack 15. Designing Sri Lanka’s Special Court: Cautionary 428 Considerations from the Cambodian Experience – John Ciorciari 16. Transitional Justice, Popular Participation and 450 Civil Society: Lessons From Sierra Leone and Peru - Rebekka Friedman 17. Truth and Justice in East Timor & Indonesia: 474 Lessons Learnt - David Cohen & Leigh Ashley Lipscomb 18. Reparations in Latin American Countries: 497 Lessons for Sri Lanka? - Naomi Roht-Arriaza Bibliography 513 7 Preface Transitional Justice in Sri Lanka à Juan E. Mendez 8 In its short history as an independent nation, Sri Lanka has accumulated a terrible legacy of human rights violations of the most serious kind. The most recent armed conflict, between the State and the Liberation Tigers of Tamil Elam (LTTE), ended seven years ago with the complete defeat of that armed insurgency. And yet there has been no attempt to heal the open wounds in the social fabric created by disappearances, torture, prolonged arbitrary detention without trial, forced displacement of civilians, child recruitment and extrajudicial executions. Undoubtedly, it is still also necessary to provide redress to the many victims of LTTE murders and attacks against the civilian population. In 2009, it appeared that a victorious government and its armed and security forces felt no compulsion to offer any explanation for those crimes. In that sense, the situation in Sri Lanka was and is very different from those peace agreements that are desperately needed to bring resolution to a cruel armed conflict and the urgency of peace supposedly justifies amnesties and policies of oblivion for atrocities committed by all sides. Indeed, perhaps LTTE crimes had rendered Sri Lankan civil society voices advocating for accountability in 2009 unable to gain any momentum. The strength of the State apparatus and its triumphalism drowned those calls; fear of reprisals from the vanquishing security forces and the violence used to silence their critics undoubtedly played a role as well. Seven years on, however, the legitimate demands of victims to see justice done have not gone away. In the last eighteen months, a reform-minded government has arrived through legitimate elections and conditions now exist for policy measures that can effectively make human rights violations a thing of the past and build the foundations of a genuine democracy based on the rule of law. 9 Despite its very idiosyncratic circumstances, the Sri Lankan effort to deal with the legacy of past human rights violations is clearly a moment of transitional justice. Whether the government has the political will to address that legacy in good faith is hotly disputed among observers and activists. Unquestionably, however, the new government does face objective obstacles in the form of a powerful political opposition with residual power and influence especially in the South, a need to maintain cohesion in the security forces, and the fact that most potential beneficiaries of truth and justice measures are counted among a discreet ethnic, religious and language minority. And yet those factors are also the reason why transitional justice initiatives are necessary. Sri Lanka must design policies to investigate the truth about all the human rights violations of the past and disclose the findings to the victims, their families and the citizenry. Those investigations must also lead to criminal prosecutions against all perpetrators, including those who ordered or tolerated the offenses, wherever the reliable evidence leads. Sri Lanka must also offer reparations to all victims, and reform the institutions that were the vehicle of the violations or acquiesced in them abdicating their protective role. In that process, the State must vet and exclude those who have abused their authority in those institutions and prevent them from serving in newly reformed agencies under democratic control. Neither international standards nor experiences from other latitudes suggest that the four components of transitional justice must be pursued simultaneously. But a piecemeal approach can raise legitimate concerns about the depth of the commitment to a comprehensive, holistic approach. In this sense, it bears remembering that the four components constitute obligations of the State under international law when it comes to international crimes; a State may not choose 10 one of them as in a menu and decide not to implement the others. All four must be pursued in good faith and with due diligence. In this context, due diligence includes the need to proceed without any further delays. Experience shows that, although the demands of justice remain in a society for a long time, the window of opportunity to implement specific plans and mechanisms to realise justice can be short-lived, especially if other pressures for policies also claim attention. In this regard, the Office of Missing Persons that has recently been enacted by legislation is undoubtedly a welcome step in the right direction; it can begin to fulfil the truth seeking and truth telling component by determining the fate and whereabouts of the thousands of victims of disappearances. By providing families with that information it can bring closure to their plight and constitute a measure of reparation as well. That “individualised” truth is important, but the State must also investigate and disclose the existence of systematic patterns of deliberate atrocities. The information and evidence the Office will gather must eventually be followed by broad disclosure of the truth, reparations to the families, prosecution of those responsible for the fate of the disappeared, and their disqualification from serving in the institutions of a democratic State. Similarly, it will also be important to legislate a means for relatives of the disappeared to settle the civil consequences of the uncertainty of whether their loved one is dead or alive. But “certificates of absence” must be viewed by society as a piece of the larger puzzle of transitional justice. The government must avoid the impression that they are meant to “close” the issue; when dictatorial regimes in other countries attempted similar certifications, they were repudiated by society because they were a cynical ploy to put a lid on the problem without truth or justice. 11 Sri Lanka is expected soon to embark on a comprehensive plan to reckon with its legacies of past abuses. Civil society organisations have recovered the initiative and are now well positioned to demand sound programmes, clarity in the attributes and powers of the mechanisms to be created, universality in the designation of beneficiaries of reparations, and – most crucially – the appointment of credible, respected, independent members at the helm of those temporary institutions. If along the way there are attempts that prove less than fruitful, that should not be a reason not to insert corrections or even to begin anew; what would be inexcusable is the deliberate adoption of half-measures that leave every Sri Lankan with a sense of dissatisfaction.