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Ready or not, here comes transitional justice

I got to Colombo just two days ago. I’ve spent most of the time walking and exploring this bustling town that eats lots of very spicy curry and somehow manages to ignore the spectacular Indian Ocean that lies just off its far too rundown shores. This is not Beirut, Tel Aviv or Miami, despite the gaggle of high-rise hotels in the central Fort district.

Friday afternoon I made it over to the Sri Lanka Foundation for a discussion of transitional justice chaired by Colombo University law professor Dinesha Samaratne, with Centre for Policy Alternatives lawyer Bhavani Fonseka and NYU professor Allen Feldman presenting. The focus of the session was on the applicability (or not) of South Africa’s experience with its Truth and Reconciliation Commission and amnesty, but it in fact ranged far more widely.

Sri Lanka ended its war against the Tamil Tigers (LTTE) in 2009 with a government victory over the insurgents, who were trying to establish an independent Tamil state. A year ago (almost to the day), President Rajapakse, who won the war, stepped aside, defeated at the polls by one of his sidekicks, now President Sirisena. He and parts of Rajapakse political coalition cooperated with the leader of the opposition, now Prime Minister Wickremesinghe, to form a “consensual” government, whose forces won a clear parliamentary majority in August.

By all reports, the atmosphere in Sri Lanka has changed dramatically since last January. Repression is far less in evidence. People feel free to speak their minds. The Rajapaksa government, which included close relatives of the president, was triumphalist, centralizing and moving in the direction of autocracy. A constitutional amendment has undone at least part of the damage and strengthened independent commissions. The Sirisena government has said it is committed to truth, justice and reconciliation. It wants a new constitution.

Whereas Rajapaksa rejected international involvement in the war’s aftermath, the Sirisena government agreed to a UN Human Rights Council resolution that lays out a process that includes a special court with still undefined international participation, a truth and reconciliation process, accounting for missing persons (about 16,000) and compensation to victims. All who spoke agreed there can be no backing away from this commitment.

But none of this has happened yet, and lots of important details are still undecided. Fonseka emphasized that those decisions are up to Sri Lankans, who need to make it clear what they want, including things that go beyond what the UN suggested like security sector reform and vetting of officials. What will the balance be between truth and justice? While it is clear that there can be no amnesty for the most serious crimes, what incentives will perpetrators have to talk? How will it be possible to avoid prioritizing some victims over others? It is not even clear what time period the transitional justice process will cover (the civil war lasted, off and on, for 26 years). A government task force has been formed for public consultations, which will last however only two and a half months.

Discussion of the South African experience, led principally by Feldman, underlined that there was no blanket amnesty there. Relatively few people who sought amnesty received it. Forensic investigations are still going on, a South African embassy official said, that sometimes contradict the testimony perpetrators provided to the Truth and Reconciliation Commission. The main impact of the South African process was to make it impossible to continue to deny what had happened and to clarify the political motives that underlay the behavior of both sides. Citizens, Feldman underlined with reference to Solon, need to participate in the post-war process, as they did in the war. The consequences should be democratizing, equalizing the voices of victims with those of perpetrators.

Samaratne and others in the audience made it clear that the issues the war raised did not end with the war. There have been reports Feldman cited of post-war cases of torture, even some abuses during the last year Fonseka said. The problem is that the justice system has crumbled. It needs to be reconstructed. The current Sri Lankan legal framework and institutions are not adequate to the challenges they face.

Sri Lanka is not ready for transitional justice, one participant concluded. The state should be held accountable for what was done in its name. From this perspective, even limited amnesty risks reducing deterrence, which depends on punishment.The situation in South Africa was dramatically different: there the oppressed came to power and magnanimously agreed to a generous Truth and Reconciliation process. In Sri Lanka , many of the same people are in power and are likely to want to protect themselves. People in the north of the country (where the insurgency was concentrated) are still abused and still afraid.The victims want justice before reconciliation.

That expectation will not be easy to fulfill. Ready or not, transitional justice in some form is on its way.