Prioritising Truth in Post-War Sri Lanka The Chilean playwright, Ariel Dorfman, posed these questions in his play Death and the Maiden, after witnessing massive human rights violations in his home country, and alludes to a delicate balance needed in terms of the past, present and future. The Chilean National Commission on Truth and Reconciliation documented violations and published a report which recognised past events. Subsequent action in Chile held to account the perpetrators, and introduced much needed reforms. The delicate balance was achieved in Chile through several state and non-state initiatives. Truth telling was a critical part of it. Diverse memories and perceptions of the past lead to a rich mosaic of narratives that are complex and sometimes at odds with each other. Such diversity should have space in a multi-ethnic and multi-religious society. More than five years after the end of the war, Sri Lanka is facing one of its biggest challenges in making space for multiple narratives. State sanctioned initiatives and extremist majoritarian groups are aggressively working towards creating what Chimamanda Adichie calls the danger of the single story. In such a contested setting, is it possible to achieve the delicate balance referred to by Dorfman? With mounting national and international pressure to address past and ongoing violations, the Government of Sri Lanka (GoSL) has resorted to establishing commissions of inquiry as its chosen path towards truth and justice. The most well-known state initiative in post-war Sri Lanka was the Lessons Learnt and Reconciliation Commission (LLRC). In 2013, the Presidential Commission to Investigate into Complaints Regarding Missing Persons (CoI) was established, seemingly to address the issue of disappearances. Although not directly termed a truth and reconciliation commission, statements by government officials indicate a preference towards a restorative justice model over a retributive one, coupled with a passionate appeal for a ‘home grown’ solution. In the absence of information indicative as to what the state sees as its preferred restorative justice model, it is to be assumed that the present CoI fits its model of truth telling. This article briefly looks at the recent developments with the CoI, the importance of truth telling and its implications towards justice, accountability and reconciliation in Sri Lanka. The government’s notion of a truth telling process, vis-à-vis the LLRC and now the CoI, reflects attempts at shaping a single narrative within the veneer of investigations and inquiries. The dangers faced with this notion of truth, and the tools used for this purpose, are attempts to legitimise a flawed process. This has also kept at bay, calls for independent investigations and created confusion among the larger public reliant on the limited public information available as to the real implications of such processes. Furthermore, such attempts will only exacerbate the culture of impunity and the spiral of silence. Problems with the Most Recent Truth Telling Initiative in Sri Lanka Recent discourse surrounding the present CoI highlights several issues related to its expanded mandate and the inclusion of an ‘Advisory Council’ consisting of international legal experts. The CoI appointed by President Mahinda Rajapaksa on 15 August 2013 was mandated to investigate and inquire into disappearances from 1990-2009 in the North and East area, which later expanded to include similar cases during 1983-2009. The overwhelming number of complaints made by affected communities who continue to search for their loved ones resulted in the CoI receiving two extensions, with the new term extended till February 2015. Gazette No. 1878/18 dated 15 July 2014 which expanded the CoI’s existing mandate on disappearances to one that include violations of international humanitarian law (IHL) and international human rights law (IHRL) requires attention. It also established an ‘Advisory Council’ naming three internationally known lawyers as advisers with the prospect of expanding the number of advisers at a later date. Unknown at the time of writing are the terms of reference (TOR) for the advisers and what role they are to play in the CoI process. A closer reading of the gazette expanding the mandate poses several questions: 1. Would the momentous task of investigating and inquiring into over 19,000 complaints of disappearances be sidelined at the expense of the expansion of the mandate? This is in the context when the number of complaints has increased and the already high number of complaints of disappearances cases is likely to increase with the mandate being extended to February 2015. Would the CoI be able to continue to investigate disappearances when the expanded mandate includes other key issues? 2. Do the commissioners and their staff have the expertise and resources to handle issues covered by the expanded mandate? The expanded mandate requires specific expertise into IHL and IHRL violations and conducting investigations into allegations of war crimes and crimes against humanity. Going by the public sittings, much more is required if the CoI in its present form is to thoroughly examine issues likely to be brought before them. 3. What is the role of the advisers in the work of the CoI and would they have an independent role? This is relevant with the recent experience of the International Independent Group of Eminent Persons (IIGEP) who were also appointed by the same government in 2007 but left within a year of operation, citing their inability to work in the context of state interference and a lack of political will to support a search for the truth. Media reports indicate funding for the Advisory Council will be from the Presidential Secretariat, raising the question of independence, and whether the advisers will be held hostage by their paymaster. The timing of these developments is hardly a coincidence. The international investigation established in accordance with the United Nations Human Rights Council Resolution A/HRC/RES/25/1 recently commenced operations. The investigation is headed by a panel of three eminent internationals, Martti Ahtisaari, former President of Finland, Silvia Cartwright, former High Court Judge of New Zealand, and Asma Jahangir, former President of the Human Rights Commission of Pakistan. As provided for in the resolution, the investigation will also be able to obtain the assistance of specific special procedures mandate holders. The terms of reference to the investigations spelling out their framework was issued recently, and will be a guide for those observing and/or engaging with the process. It is yet to be seen if/how the victims and affected parties in Sri Lanka will be able send submissions to the investigations. This is in view of the potential security threats in Sri Lanka, where government ministers, officials and those enjoying state support, allegedly threaten anyone sharing information with the international investigation, with violence and possible time in prison. The choice of yet another commission to address violations and to seemingly detract from the international investigations comes as no surprise. The expanded mandate and the shift from its original purpose to a broader mandate leads to concerns of attempting to undermine the gravity of disappearances in Sri Lanka for political and possibly other purposes. The fact that many families from across Sri Lanka sent in complaints and some travelled considerable distance for a brief moment to be heard, yet again, is a reminder of the thousands whose whereabouts are unknown and the many questions that require answers. Is Genuine Truth Telling Possible in Post-War Sri Lanka? Many who complained to the CoI had gone before numerous state initiatives introduced to address disappearances including previous commissions and committees. The present CoI is perceived by many as yet another state initiative which is unlikely to give any genuine response, similar to those countless before it, but families continue to go before such entities with the hope of finding their loved ones. This is captured by one Catholic priest who stated, “We don’t have any hope now but we want to know if our loved ones are alive or dead.” The high number of complaints received so far by the CoI, and the perseverance shown by the affected communities in their search for their loved ones provide a glimpse into a large number of people who are still searching for answers. The families who came before the COI had one simple statement which was captured by a mother who came for the Mannar sitting: “I don’t want any government assistance. I only want my son back.” The search for answers was a single uniform thread in the complaints made to the CoI, and highlights the importance of truth for many who had been affected by violence. The CoI recently held sittings in the Mannar District from 8-11 August with as many as 225 invited to make submissions, and the Commission hearing over 150 complaints in the four days of sittings. Although information about the CoI was available to many in Colombo, limited information was available in Mannar. Several in the area when first contacted were unaware of the CoI sittings with some stating that information was received only through the media and the church. The fact that limited information was available in the areas begs the question whether that in itself deprives families of a basic right to know, and to be heard. Many recounted to the CoI how family members disappeared and the cases ranged from those during the war to a few post-war incidents. Many recounted of disappearances during the last stage of the war who had been forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) or surrendered family members to the security forces who are still missing. A father recounted how he had left his daughter at the Valaignarmadam Church for her safety during the last stage of the war, and how the LTTE had taken all the children at the church numbering over 400 who had subsequently gone missing. Since that fateful day, he has yet to see his daughter. A woman recounted her search for her sister, brother-in-law and four-year-old nephew who had disappeared in 2009. The sister’s complaint of the members of her family, who had disappeared, is not unique. Many families had gone missing in their entirety during the war, and a critical question one could ask is, how will this specific group will be examined, or will they be examined? Others recounted the horrors of war. thesundayleader.lk/2014/08/17/prioritising-truth-in-post-war-sri-lanka/
Posted on: Mon, 18 Aug 2014 02:59:18 +0000