- TRANSITIONAL JUSTICE - SRI LANKA
Shreen Saroor on transitional justice and victims' participation in Sri Lanka
I however see women as being the future of Sri Lanka’s transitional justice process.
Shreen Saroor is the founder of the Mannar Women's Development Federations
Interview conducted by Panuga Pulenthiran
Sri Lanka went through a thirty-year long civil war, opposing Sri Lankan governmental forces and the Tamil rebel group, the Liberation Tigers of Tamil Eelam. The conflict ended in a bloodshed in 2009, killing 40 000 civilians, according to United Nations’ estimates. War crimes and crimes against humanity were allegedly committed by both parties to the war, and the road to justice is still very long.
1. Can you briefly describe the process of transitional justice than unfolded since the end of the war, in 2009, and the current impediments to it?
The process started in 2015 because of the international pressure and support to the currently elected government to defeat Mahinda Rajapaksa. In that context, the government agreed to go through this process of transnational justice. Despite civil society commitment since 2009, the international community was not pressurizing the government enough and it took two years for the Sri Lankan civil society to start lobbying properly the UN Mechanisms and Special Rapporteur Procedures. It resulted in the adoption of three resolutions on war crimes and crimes against humanity. The resolution 30/1, co-sponsored by Sri Lanka, really started the transitional justice process. The Government of Sri Lanka agreed to establish four mechanisms namely the Office of Missing Persons, a Truth Commission, a Reparations’ Office and a Special Court. The process is stuck because the Sri Lankan representatives are reluctant to agree to an international process. The victims have although made it very clear to all UN bodies and representatives of their refusal of a Sri Lankan local mechanism for justice. After the signature of the resolution 30/1, the Sri Lankan government somehow managed the international pressure by ratifying Convention on Enforced Disappearances in 2016 and then establishing the Office of Missing Persons. The government however delayed the physical establishment of the office, as the President was nervous that former war heroes will be pinned down for war crimes.
It has to be reminded that, since 2015, space for dissent and transitional justice opened up because of the street mobilization, specifically led by women. Mothers, women who lost their lands, political prisoners’ wives started protesting in every district thanks to the return of democracy in the country in 2015. My problem is that the government is not willingly establishing these transitional justice mechanisms, there is no political will. Opposition arose in the North and East where the very victims who asked for a separate mechanism for disappearances don’t want to engage with the Office of Missing Persons. In fact, an OMP office was about to be opened in Mannar, I spoke to the mothers there who refused to cooperate with the office. They are convinced that the OMP will not deliver justice, the government is just doing a tick-the-box exercise for Geneva by establishing these bodies right before being reviewed by the Human Rights Council. Therefore, they don’t want a Geneva process anymore but an ICC referral. It’s highly complicated to engage the victims even though they drove the process and brought all these mechanisms.
Added to these challenges, the Executive is divided after the constitutional coup of October 2018 and Sinhala-Buddhist ideology still prevails within many of the political elites, rendering nearly impossible the indictment of military personnel framed as war heroes. Universal jurisdiction seems to be the only way here, and last week, the former Defence Secretary, Gotabaya Rajapaksa, has been sued in a US court over torture allegations.
2. Are the few established mechanisms victim-led processes, or at least, inclusive of victims’ perspectives?
Resolution 30/1 and follow-reports specify that the process should be victim-led and any mechanism established as part of the transitional justice process should go through a consultative process. Foreign Minister Mangala Samaraweera appointed a Consultative Task Force on Transitional Justice processes comprised entirely of civil society, eleven members in total, with half being women. The task force then appointed regional committees named zonal task forces, set up across the country. All the zonal forces are composed of six members, and were mostly led by women, with more than 50% women being represented. A very long report was published afterwards, in which people reiterated their opposition to local justice and demanded international involvement. But the report was overlooked by the government.
Regarding the OMP and the Reparations’ Office, we pushed for women’s representation as they were the most affected by the conflict. In the OMP, out of the seven commissioners, three are women: two Tamil women – Jayatheepa Punyamoorthy, from the Women’s Action Network, whose husband was abducted in 2009, Major General Mohanti Anthonette Peiris – and prominent civil society actor, Nimalka Fernando. For the Reparations Office, which has recently been operationalized, Sumi Sellamthamby, a counsellor who used to work in the Eastern Province, was nominated and the head of the Office of Reparations is Dhara Wijayathilake – former Secretary to the Education Ministry.
However, legislation pertaining to transitional justice mechanisms were not automatically shared with the communities, citing security reasons. They were only made available after filing right to information requests. Withholding policy documents results is due to the persistence of former regime bureaucrats who are the drafters and thus trying to limit criminal responsibility for them.
3. The most serious crimes i.e. crimes against humanity and war crimes in the case of Sri Lanka are not part of the domestic legal system. What are the other remedies?
The Sri Lankan judiciary is somehow proving itself in some instances, case in point when the President nominated Mahinda Rajapaksa as its Prime Minister in October 2018, the Supreme Court overturned the decision. We need to think about internally reforming the laws and structures, bringing in strategic litigation and collective cases. That’s why we need a special court but I don’t see a complete prosecution happening outside Sri Lankan. The prosecution would not only cover the crimes committed in 2009 but during the thirty years of war, and the high number of perpetrators and victims will impede an efficient prosecution. Moreover, only emblematic cases will be picked up, denying justice to thousands of victims. There has been demands to amend the Constitution to include war crimes and crimes against humanity but that’s a long term process.
4. Do you think that existing judicial mechanisms are inclusive if victims ? Are victims able to interact with the judiciary? What are the impediments met by victims?
We filed 28 habeas corpus cases with regards to disappearances. Victims have gone into courtrooms 30 to 40 times. Cases are postponed because the Attorney General’s Department is delaying the process and indicted military personnel is not appearing in court. The Attorney General’s Department has been a major impediment for justice in Sri Lanka, more predominantly for Tamils regarding disappearances and military land grabbing. The moment national security is involved; the Attorney General’s Department defends the States instead of the people. It’s highly problematic that the Attorney General’s Department supposed to expedite justice for people is with the state, explaining that people do not trust the local judiciary.
Moreover, as long as a conducive environment is not created and security sector reforms not implemented, as per the Human Rights Council resolution, many local court processes cannot move forward because the police and military personnel who have committed crimes are still in the state apparatus. Political elites are also likely to be accused of crimes, including individuals in the former President’s entourage.
We also need a third force in this country that would drive the justice process. For the last thirty years, we are stuck with two political parties, that are either ruling or in the opposition. We need a larger civil society thinking differently because the current civil society joined hands to defeat Rajapaksa but forgot to criticize the current government. Therefore, we kept silent and the government failed the victims. And now the civil society is not even trusted by the victims. We have lost that faith as well.
5. Can you tell me a bit more about the work you do with women victims? What kind of expectations and demands do they have, and what is their sentiment now, given the absence of political willingness and most of the protestors are ageing?
In the North and East, I work in a range of issues including violence against women, sexual violence and war-related atrocities. My current work has been with families of disappeared and physically challenged former-LTTE cadres, and some of the political prisoners’ families who have been in custody for a long time. It’s mostly about creating a space for victims of extreme violence, especially at the end of the war, but also memorialization processes, story-telling and gathering grievances etc. The women want a special court with international involvement. They want perpetrators to be punished and punishment being given. In that context, it’s difficult for us to tell them that justice is slow. In my hometown Mannar, four of the mothers who mobilized for their sons, died because of old age. They do not want to forgive; they want justice delivered. They are tired and currently opposing any local mechanisms, they are upset that the UN has given another two years to this government to fulfil its commitment. Some mothers are even saying that the Rajapaksa government should come back to power so that the international community will exercise pressure again. They perceive this government as being pampered by the international community.
The environment is deteriorating especially after October 2018, subjecting civil society activists working with these women to naming and shaming. The Victim and Witness Protection Act is very unlikely to be efficient as the protection unit consists of war crimes perpetrators.
I however see women as being the future of Sri Lanka’s transitional justice process. If we carefully look at the local protests, such as Lasantha Wickramatunge’s case, cartoonist Eknaligoda’s abduction case or the eleven abduction case, all these cases are driven by women.