Transitional justice relevant to Sri Lanka?
By Neville Ladduwahetty
UN Special Rapporteur, Pablo de Greiff, at a media briefing following his 14-day visit to Sri Lanka stated: "Sri Lanka continues to deprive itself of the benefits of Transitional Justice". Before addressing the benefits of Transitional Justice, certain fundamentals need to be clarified. Some of these fundamentals are, for instance: What is Transitional Justice? Is it relevant to Sri Lanka? From what to what is Sri Lanka supposed to transition? Is Justice to be restorative or retributive?
Answers could be found in a publication by the "International Center for TRANSITIONAL JUSTICE".
Addressing the question of "What is Transitional Justice"? the publication states as follows:
"Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition of victims and promotion of possibilities of peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuses…"
"This approach emerged in the late 1980s and early 1990s, mainly in response to political changes in Latin America and Eastern Europe – and to demands in these regions for justice. At the time, human rights activists and others wanted to address systematic abuses by former regimes but without endangering the political transformations that were underway. Since these changes were popularly called "transitions to democracy", people began calling this new multidisciplinary field "transitional justice".
RELEVANCE of TRANSITIONAL JUSTICE
If Transitional Justice is an attempt by a country to transition from systematic and widespread violations of human rights, or societies transforming themselves after a period of pervasive human rights abuses as in Latin America and Eastern Europe to one of "peace, reconciliation and democracy", how relevant is it to a country such as Sri Lanka that has experienced uninterrupted representative democracy even before it became a sovereign independent state? Furthermore, during the time frame referred to in the UNHRC Resolution 30/1, which was February 22, 2002 to May 19, 2009, the conduct of the parties to the conflict, i.e., the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam, should be judged on the basis of International Humanitarian Law and NOT International Human Rights Law, since the conflict was a Non-International Armed Conflict applicable to Article 3 common to the four Geneva Conventions; a fact acknowledged in the OISL report of the Office of the High Commissioner for Human Rights paragraphs 182 and 183, cited below.
Paragraph 182: "Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common Article 3 binds all parties to the conflict to respect, as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely, without any adverse distinction".
Paragraph 183: "In addition the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict"
If the "benefits" of Transitional Justice are peace and reconciliation, on what basis does Mr. Pablo de Grieff infer that such benefits do not already prevail since standards, parameters and guidelines do not exist to measure either or both benefits? He cannot deny that the derogation of civil liberties in Sri Lanka is currently far less than what exists in countries such as the US, UK and France in their efforts to deal with threats from terrorism, judging from comments made by none other than the High Commissioner for Human Rights regarding the derogation of civil liberties in those countries. Therefore, how relevant is Transitional Justice to Sri Lanka?
The whole premise for recommending Transitional Justice is because of a belief that human rights were violated during and after the armed conflict. As far as the armed conflict is concerned there is agreement between the UN High Commissioner’s Office for Human Rights and the Panel of Experts headed by Darusman, appointed by the UN Secretary General, that the conflict was an armed conflict, and that the applicable law is International Humanitarian Law and NOT Human Rights Law. The Executive Summary of the latter’s report states thus: "…the Panel proceeded from long settled premise of international law that during an armed conflict such as that in Sri Lanka, both international humanitarian law and international human rights law are applicable". Despite this "long settled premise" the summary states: "There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct in the conflict of both the Government and the LTTE" . Therefore, it could justifiably be concluded that Transitional Justice, the basis of which is pervasive human rights violations, is not applicable to the period February 22, 2002 to May 19, 2009.
Furthermore, there is opinion that International Humanitarian Law applies even after hostilities cease. Such an opinion was conveyed during the case of the Prosecutor v. Dusko Tadic, when the Security Council appointed the Appeals Court of the International Criminal Tribunal for the Protection of Persons responsible for serious violations of International Humanitarian Law committed in the former Yugoslavia since 1991. The Tribunal stated: "…we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflict and extends beyond the cessation of hostilities until a general conclusion of peace is reached, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring State or, in the case of internal conflicts the whole territory under the control of a party, whether or not combat takes place there".
The President of this Tribunal was a highly respected and internationally recognized jurist, Antonio Cassese. The opinion of the Tribunal was that only International Humanitarian Law applies, not only during an armed conflict but also beyond the "cessation of hostilities", and that it applies throughout the entire territory of the State. This opinion rejects the notion held by some that international humanitarian law and international human rights law apply concurrently. In view of the opinion of the Tribunal, Transnational Justice has no relevance to Sri Lanka.
The UNHRC resolution 30/1 requires Sri Lanka "…to investigate allegations of violations and abuses of human rights and violations of humanitarian law, as applicable". The notion that Human Rights Law and Humanitarian Law are applicable concurrently during an armed conflict is a commonly held false premise because the tendency is to assume that the full scope of human rights law that applies at peace time is applicable along with humanitarian law during an armed conflict. This assumption ignores that certain provisions of human rights could justifiably be derogated provided certain provisions of Article 4 of the International Covenant on Civil and Political Rights are retained. Thus, for human rights and humanitarian laws to apply concurrently, it is absolutely necessary for human rights to be derogated to the limits stated in Article 4 (2) of the Covenant. However, since human rights in its derogated form are incorporated in provisions of Additional Protocol II of 1977, the applicable law during an armed conflict should be humanitarian law.
The principle of derogation is also recognized by Article 15 (7) of the Sri Lanka’s Constitution in the interest of national security. Furthermore, Sri Lanka’s Emergency Regulations were also in operation during and after the conflict. Therefore, the determination by the Criminal Tribunal for former Yugoslavia that humanitarian law is applicable during an armed conflict and beyond is valid. Thus, Transitional Justice is arguably irrelevant to Sri Lanka.
A statement by the Foreign Ministry reported in The Island of October 27, 2017 stated: "Since Sri Lanka is not a signatory to the Rome Statute regarding international jurisdiction with regard to war crimes, ensuring justice with regard to such matters will be the business of national independent judicial mechanisms". This statement is an exact reproduction of "point 93" of the President’s 100 Day work programme. Having committed to a national judicial mechanism in January 2015, how did the Foreign Ministry co-sponsor the UNHRC resolution in September 2015 – nine months later - that calls for a judicial mechanism that includes a "special counsel’s office, Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators", in violation of the President’s commitment to the People?
The Foreign Ministry statement commits "to present its own set of national proposals for a transitional justice process, involving truth, justice, reparation, and guarantees of non-recurrence". Is the government aware that by committing to base its national proposals on transitional justice it has agreed to establish truth, justice, reparation etc. on the basis of human rights, whereas both the Panel of Experts report and the OISL report accept humanitarian law as the applicable law?
Is the Foreign Ministry serious when it claims that it could establish the truth and administer justice, when access to the very evidence that could have a bearing to address alleged violations is denied not only by the UN but also by US and UK who are the chief initiators of the UNHRC 30/1 resolution.? This is a disgrace and a violation of rules of natural justice for which the Ministry is accountable. Furthermore, how could issues relating to reparation be addressed without establishing the number of persons affected as a consequence of alleged humanitarian law violations, bearing in mind that to arrive at this number, one has to know how many were affected by violations committed by the LTTE as well? This is not a realistic undertaking regardless of whether the judicial mechanism is national or not.
A recent statement by the Foreign Ministry stated that engaging in debates over the number of civilians dead is a meaningless exercise except for a "feel good factor" for the individuals concerned. Those engaged in this so called "meaningless exercise" of challenging contrived numbers such as 40,000 dead suggested in the Darusman report did not do it to win debates or feel good. They did it because they saw the injustice of spuriously concocted numbers. Had the Foreign Ministry been effective in challenging these numbers picked out of thin air, there would not have been the need for members of civil society to step up to the plate and fill the void.
Also, the Foreign Ministry did not present the conflict as an armed conflict nor that the conduct of the security forces and the LTTE should be judged on the basis of international humanitarian law as stated in the Darusman and OISL reports.
Furthermore, thus far no attempt has been made to challenge the ability of anyone to distinguish civilians from combatants in claims to the number of civilians who died, since it is a well established fact that the LTTE shed their uniforms, thus violating one of the two key principles of humanitarian law, namely, distinction and proportionality. Additionally, was the issue of civilians losing their right of protection when they provided material support to the combatants ever raised? Was the issue that the respective parties to an armed conflict are responsible for the protection of civilians in their charge ever taken up by the Foreign Ministry or any other? Was the issue of supplying humanitarian aid NOT being an obligation of the government as a party to the armed conflict under rules of humanitarian law, ever raised? Were such issues not raised to stay "engaged" and/or to "feel good" in the eyes of the UNHRC and the international community? Clearly, the current attitude towards Sri Lanka is due to the failure of the government led by the Foreign Ministry to develop an effective strategy as far as Geneva is concerned; a failure that continues to persist.
Since the first UNHRC resolution on accountability in 2012, Sri Lanka has been taking a defensive strategy - always explaining its actions during and after the conflict. This is a flawed strategy. Instead, Sri Lanka needs to change course and adopt a proactive approach and present the conduct of the armed conflict in the context of what it really was, that it was an armed conflict in which humanitarian law applied and human rights law applied ONLY in its derogated form both during and after the conflict until the transit camps were dismantled.. Such an approach amounts to Sri Lanka using the provisions of internationally accepted law and its approaches, to counter issues relating to accountability. Since the Foreign Ministry is unlikely to transform itself to fulfill such a role, the task of presenting issues relating to accountability should be undertaken by a representative of the Defense Ministry to present the segment on accountability. Since a national mechanism or any other would not be in a position to establish the truth as to who was a victim of government action or LTTE action, the remit should be to identify the victims and arrange for reparations, justified on the basis that no post conflict mechanism anywhere has established the "truth", and that without the "truth" there is no "justice". Therefore, transitional justice boils down only to reparations.
Special Rapporteur Pablo de Grieff was an emissary representing Geneva and sent to Sri Lanka to promote transitional justice. The concept of transitional justice evolved to help countries in Latin America and Eastern Europe that had experienced pervasive human rights violations under repressive regimes and to assist their transition into democracies. Such concepts have NO relevance to a country such as Sri Lanka that has experienced representative democracy even before it became a sovereign independent State, and has continued to be so without interruption even during the conflict that is recognized internationally as an armed conflict, wherein humanitarian law applies and NOT human rights law. Therefore, violations if any should be judged on the basis of the norms of humanitarian law. This makes transitional justice irrelevant to Sri Lanka.
Notwithstanding this, the government co-sponsored resolution UNHRC 30/1 that calls for the establishment of a judicial mechanism to address issues relating to accountability with the participation of foreign judges etc. (para. 6 of UNHRC Resolution 30/1), completely ignoring a commitment by the President in his 100 Day Programme for a "national independent judicial mechanism". Despite its commitment to Geneva, a recent statement by the Foreign Ministry confirms that the President’s commitment for a national independent judicial mechanism would prevail. However, the Foreign Ministry statement did not specify what the remit to a national judicial mechanism would be.
Whatever the mechanism, what is of relevance is that starting from the first Resolution in 2012, Sri Lanka has taken a defensive approach explaining its conduct during the armed conflict without taking a proactive approach to justify that its conduct should be judged on the basis of humanitarian law as an entitlement. Perhaps the strategy adopted thus far is based on the notion that all issues relating to Geneva are political. Since this approach has not helped Sri Lanka get off first base, it is time a different track is used, that being the legal approach.
Those who represent Sri Lanka in Geneva are not likely to change course because they lack the needed understanding and conviction to make a credible case to justify its conduct based on humanitarian law as an entitlement. Therefore, the team representing Sri Lanka should consist of a member from the Defense Ministry to address accountability issues in a credible manner to convince some members of the Human Rights Council of the need to revisit the position taken by the UN High Commissioner. While the legitimacy of such an approach is unquestionable, the question is whether the Government led by the Foreign Ministry or any other that represents Sri Lanka has the chutzpah chutzpah chutzpah chutzpah to be up to the task.