COLOMBO: Rendering Transitional Justice to the victims of the long-drawn out war between government forces and the Liberation Tigers of Tamil Eelam (LTTE) has been a commitment made by the Sri Lankan government to the United Nations since 2015.

But that commitment is yet to be honored by the Sri Lankan government because of an entrenched fear among the majority Sinhalese that their fellow men in the armed forces will be victimized, and that the Sinhalese will become the underdogs in their own country thanks to a West-manipulated Transitional Justice system while the minority Tamils will become the top dogs with the help of the same system.

The Sinhalese as well as the Tamils have been seeing Transitional Justice as a “zero sum game” with all the advantages accruing to one side and all the disadvantages to the other side. The notion is that one side has to be punished severely, while the other has to be let off the hook entirely.

The Sinhalese think that Transitional Justice is meant to benefit the Tamils only, ignoring the sufferings inflicted on the Sinhalese by the LTTE and other Tamil militant groups over a 30-year period. On the other hand, the Tamils think that they are the sole victims, and therefore justice should be done only to them The killing of Sinhalese, Muslims and soldier prisoners by the Tamil militants should be brushed under the carpet and forgotten.

And both the Tamils and Sinhalese ignore the woes of the Muslims, who got caught in the crossfire. They had to quit the Northern Province en masse at 24 hour notice and were massacred in Kathankudi in the Eastern Province, both in 1990.

The Maithrpiala Sirisena-Ranil Wickremesinghe government pledged to put in place Transitional Justice mechanisms through a co-sponsored resolution in the UN Human Rights Council (UNHRC) in 2015. But no mechanism has been set up till date except an Office of Missing Persons (which again is still to be staffed).

The delay in setting up the mechanisms is due to the fears over the consequences of the mechanisms. No one, whether in Sri Lanka or from outside, has tried to bridge the gap between the differing perceptions on the mechanisms.

It was left to the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees on Non-Recurrence, Pablo de Greiff, to attempt to bridge the gap in perceptions and clear the misconceptions by explaining what Transitional Justice actually means or implies, and how all communities and all interest groups including the armed forces and women will benefit by it.

Speaking to reporters here on Monday at the end of his 14 day tour of Sri Lanka, de Greiff said that Transitional Justice is meant for all victims of war irrespective of ethnicity ,religion or gender, and not just the minority Tamils, as is imagined by a wide cross-section of Sri Lankans.

“Those who oppose questions of truth, justice, reparations, and guarantees of non-recurrence as if they are the subject of a zero sum game, a matter of interest to one community alone, do a great disservice to the country. This includes some politicians, members of the media and even some religious leaders who speak as if the measures either target or benefit one group alone,” de Greiff said in his forthright and well-argued presentation.

He suggested that in addition to the Tamil victims of the conflict, a quick list of other victims be drawn. The list should include, among others, those who had suffered during the two Marxist insurrections in South Sri Lanka (1971 and 1989); victims of Tamil terrorist attacks; families of the over 600 policemen gruesomely murdered by the LTTE in 1990; and the Muslim population forced out of Jaffna in 1990.

Looking at Transitional Justice as justice for all, will help across-the-board acceptance of it and promote reconciliation, de Greiff argued.

Correcting the belief among the majority Sinhalese that Transitional Justice with a judicial mechanism will be a “witch hunt” in the Sri Lanka armed forces and will put in the dock “war heroes” who had liberated the country from terrorists and separatists, de Greiff said that Transitional Justice processes do not involve massive purges and holding large numbers guilty on the basis of collective responsibility or guilt by association.

Only those military men who had broken the rules of war and exceeded the limits of “legitimate use of force”, will be probed and brought to justice, he clarified.

Denying that Transitional Justice has an anti-Security Forces agenda, the UN official said that expert investigators know the difference between legitimate use of force and that which is not.

“In this regard I note with concern rhetoric such as: war heroes will be brought to trial,” he said.

“However, no one who had committed violations of human rights law or laws of war, deserves to be called a war hero,” he added.

Unjustifiable Controversy Over Nationality

In 2015, the Sri Lankan government had agreed to set up a Sri Lankan-led “hybrid” international Judicial Mechanism to try war crimes cases. But the mechanism is yet to see the light of the day given the controversy over the nationality of the judges.

Regretting this, de Greiff said: “The criterion for appointment of judges should be competence and expertise in war crimes cases, and not their nationality.”

He pointed out that competence in this field is very limited in the world and said that the Sri Lankan government should either enter into agreements with countries with expertise in this field, or train its own judicial officers in the required skills. But so far, nothing of this sort has been done.

Though the Sri Lankan government is cooperating with the Office of the UN Human Rights High Commissioner by facilitating visits by Special Rapporteurs and giving them unrestricted access, it has “under-utilized” the support offered by the United Nations, de Greiff said.

Delays Will Aggravate Problem

The UN Special Rapporteur said that in 2015, Sri Lanka had given itself two years to achieve a list of Transitional Justice goals. But when it did not implement them by 2017, it got two more years. But things continue to be in the doldrums causing concern. The delay has led to politicization and complication of the issues involved, de Greiff noted.

He stressed the urgency of drawing up a time-bound plan for implementation of various aspects of Transitional Justice. Specifically, personnel should be appointed to the Office of Missing Persons set up recently. The Prevention of Terrorism Act (PTA) must be repealed and replaced. Cases under PTA must be concluded fast. Deadlines should be set for release of lands and the armed forces should not be the sole determinant of decisions on land. A Truth Commission must be set up promptly and the victims must be recompensed.

However de Greiff made it clear that reparations and economic aid alone will not assuage the victims. Justice must be rendered by bringing the perpetrators of human rights violations to book, he stressed.

He opposed letting the perpetrators of human rights violations off the hook, on political or nationalistic grounds as this will only give rise to the culture of impunity which will spread to other areas and communities eventually.

At the end, nobody, no community, anywhere in the island, will be safe, he warned. This according to de Greiff is the most pressing argument for post-conflict justice mechanisms, as one of the key aims of the proposed justice mechanisms is guarantee of non-recurrence.

Asked about the possibility of Sri Lankan military personnel being hauled up before courts in other countries under the principle of Universal Jurisdiction, de Greiff said that such a possibility exists always.

However, such cases are difficult to sustain in the absence of adequate evidence and competence of the investigators and prosecutors. But competence in this field will develop, and therefore, Universal Jurisdiction will be hanging like sword of Damocles over the heads of the Lankan military.

The only way to avoid an ugly situation such as the one in which the Sri Lankan Ambassador in Brazil and former Army Commander, Gen.Jagath Jayasuriya, found himself in recently, is for Sri Lanka to have a credible and functioning justice mechanism to go into war crimes cases, de Greiff said.

(Cover Photograph: UN Special Rapporteur Pablo de Greiff with Sri Lankan President Maithripala Sirisena )