Overstressing The Proposed Truth & Reconciliation Commission
By Jehan Perera –
The ongoing session of the UN Human Rights Council in Geneva is proof enough that the international quest for justice and accountability in Sri Lanka is continuing. UN Human Rights High Commissioner Volker Turk who presented the annual report noted that “In Sri Lanka, although the government has regrettably rejected aspects of the Council’s resolutions related to accountability, it has continued to engage with our presence on the ground. Sri Lanka has received a dozen visits by mandate holders in the past decade and I encourage the authorities to implement their recommendations.” The change in the presidency from Gotabaya Rajapaksa to Ranil Wickremesinghe has made no difference to the expectations of the international community and to the demands placed on the government.
Coinciding with the events unfolding at the UNHRC session in Geneva, there was a launch of a report on the past investigations into mass graves and on missing persons in Sri Lanka by five leading civil society organisations. Civil society activist Brito Fernando, long time founder of Families of the Missing said that “After three decades and twenty attempted exhumations, only a handful of bodies have ever been identified and returned to families. We all know tens of thousands of bodies lie in shallow graves all over the island, so we can’t describe this dismal rate of progress as bad luck – it’s a clear lack of political will.” There has been significant media coverage of this event which reflect the pain and agony of those who suffered the loss of their loved ones during the war—and also during the JVP insurrection which also has left a legacy of mass graves.
One of the most positive features of the post-war period has been the willingness of the media to take up controversial issues of human rights violations. The Island newspaper not only gave front page coverage to the launch of the publication on the missing persons, it also clarified with the Canadian mission in Colombo regarding the stance of its government on the charge of genocide leveled against the Sri Lankan government. Canadian Prime Minister Justin Trudeau pointed out that the Canadian Parliament in May 2022 unanimously adopted a motion to make May 18 Tamil Genocide Remembrance Day. The Canadian High Commission reiterated that this statement to mark the first Tamil Genocide Remembrance Day reflected the Canadian stand and that Canada will not stop advocating for the rights of the victims and survivors of the Sri Lanka conflict, as well as for all in Sri Lanka who continue to face hardship.
The government’s position has been that it is continuing its focus on the long-term measures towards reconciliation and accountability within the framework of the constitution and that it opposes international mechanisms that would erode national sovereignty. Since the first UNHRC resolution brought against Sri Lanka in 2009, the year the war ended bloodily on the military battlefield, successive governments have either sought to defeat them, and indeed succeeded the first time when then ambassador Dr Dayan Jayatilleka led the Sri Lankan team in Geneva. But when the government of President Mahinda Rajapaksa failed to implement the promises it had made, including the recommendations of the Lessons Learnt and Reconciliation Commission it had set up, the tide turned and Sri Lanka was at the receiving end of more resolutions.
The only time that the Sri Lankan government sought to collaborate with the international community on the issue of UNHRC resolutions was when (then) Prime Minister Ranil Wickremesinghe led the government in 2015 and agreed to co-sponsor the updated resolution. The government accepted a range of recommendations, ranging from the vetting of security forces personnel, getting those accused of human rights violations to be removed from the security forces and setting up special courts with international participation to look into questions of accountability. During that period the government made some attempts to deal with issues facing the people, such as returning land to them and reducing the military role in civilian life. But institutions it set up, such as the Office on Missing Persons soon lost credibility due to the limited nature of their work. There was resistance to probing the past from within the governmental system and larger society itself who saw, and continue to see, the security forces as having performed a necessary service to the country to end the war and preserve its unity and sovereignty.
A few months ago, the international media reported that in Spain volunteers and forensic archaeologists exhumed 53 bodies from shallow graves in the Basque town of Orduna that were dug in 1941, as part of a process of healing the country’s wounds from the dictatorship era. More than 500,000 people were killed during the 1936-1939 Spanish civil war. Historians estimate more than 100,000 people remain missing, many in unmarked mass graves. It took the government more than 80 years to approve a law in 2020 to finance exhumations from the unmarked graves as part of a wider effort to find out the truth about the dictatorship’s crimes and heal wounds still open four decades after former President Francisco Franco’s death. To this day, Spain continues to have unhealed wounds and divisions from its civil war that have contributed to Basque separatism.
The binding elements in any society are justice and accountability in which people feel they are treated fairly and will have justice if they are not treated so especially by the government. The international community is led by Western countries that have achieved high levels of development and prosperity. The western countries have created societies that work in the interests of their people and are just to them to a greater rather than lesser extent. Therefore, the guidelines they hold out to Sri Lanka ought to be followed as we lag behind in development, justice and prosperity. In her oral update to the UNHRC, Deputy High Commissioner for Human Rights Nada Al-Nashif noted that “What is needed is a coherent plan that connects the different elements of truth, redress, memorialisation, accountability and creates the right enabling environment for a successful and sustainable transitional justice process.”
The government’s response to these pressures from the international community is to revive and strengthen the mechanisms already in place such as the Office on Missing Persons. Under new leadership the OMP is building its capacity with support from both the international community and CSOs. The government is also continuing the process of returning land to the people. This is accompanied by efforts to increase the role of the Office for Reparations in offering financial and symbolic compensation to families of the missing and victims of human rights violations. But the main instrument in the government’s arsenal appears to be the proposed Truth and Reconciliation Commission. The TRC draft is to be shared with the diplomatic community by next month. Minister of Justice Dr Wijeyadasa Rajapakshe has said that once the TRC draft receives parliamentary approval, it will be implemented by December 2023.
According to Tamil leaders who have seen the draft of the proposal, the TRC will not provide the solution to the problem of accountability. It does not include holding perpetrators of crimes to account. Such a level of accountability cannot be expected at this time when those leading the government both openly and covertly are those who played key roles in suppressing the insurrections of the past. It is not reasonable to expect government leaders to self-indict themselves or to pave the way to such indictments and prosecutions. Any targeting of the security forces will also lead to a division in society, much like has existed in Spain over the past 80 years, and can lead to the popular vote going against such a government leadership. Indeed, this happened in 2019, when former President Gotabaya Rajapaksa made the rejection of the co-sponsored UNHRC resolution his battle cry and swept into power on ethnic majority Sinhalese votes.
The role of a TRC at the present time will need to be accepted as a limited one, in which the truth will be ascertained, both what happened to the missing persons as individuals and addressing the accusation of genocide in the larger picture which is gaining international traction with the passage of time. There is a great need to create awareness about the past, both in Sri Lanka and abroad, in order not to repeat the mistakes of the past. The TRC will not be the magic bullet or provide the answer to the UNHRC resolutions which will need to be addressed In multiple other ways in a process of change. Sincerity needs to accompany that process.