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Transitional Justice in Sri Lanka

146,679 Tamils are still unaccounted for following the 26 years old civil war between the Tamil Tigers and the Sri Lankan government.

Tamils had great trust in the international justice mechanisms and lobbied the U.S., UK, India, France, Canada and Australia in an effort to seek justice. They argued their case with international human rights groups when the UN failed to acknowledge the genocide that had taken place.

So far the Tamils have not gotten anything substantial. The military remains in the North, the Prevention of Terrorism Act has yet to be repealed, and sexual violence continues as documented by renowned human rights activist Ms.Yasmeen Sookaii of South Africa. Tamil political prisoners continue to languish in many unknown prisons. Yet Sri Lankan politicians have promised that transitional justice will be done to the Tamils.

There are four key parts of transitional justice.

Truth-seeking – Sri Lanka has yet to identify the model for truth seeking despite the war ending more than six year ago. South Africa’s Truth and Reconciliation Commission (TRC) model has been proposed but will it work in the Sri Lankan context is the big question as Sri Lanka is a country known for institutional impunity and the General who carried out the war is a senior minister in the cabinet. The former president who ran the ‘War for Peace’ and ‘No Mercy’ war on the Tamils heads the reconciliation efforts.

Prosecutions – So far there has been a zero prosecution from the side of the Sinhala soldiers, on the other hand many former members of the LTTE have undergone prosecution under the PTA and some released after rehabilitation, many are still not traceable after surrendering to the armed forces. Crimes like arbitrary killings, disappearances, sexual violence against Tamil women, attacks on the media, attacks on children and unarmed civilians to name a few have not been investigated, closing the doors for prosecution. The high degree of state sponsored impunity makes prosecution a very distant dream.

Reparations – So far no Tamils have received any reparation for the damages that have been caused to them. The UN estimated that nearly 160,000 houses were destroyed or damaged during the civil war, the resolute Tamils have rebuilt them with help from NGOs and other sources. Thousands of them have been maimed, there are 90,000 war widows, yet there is so far no talk of reparations

Institutional reforms – The only notable institution reform after the Rajapakse government is to do away with the presidential form of government. Even the basic demand of the Tamils for provincial autonomy remains in peril. Recently the parliament has announced constitutional reforms, only time will tell what bargain the Tamils can strike from this deal.

With this kind of a background it is hard to understand if a true transitional justice mechanism will ever be implemented in Sri Lanka which would benefit the Tamils.

In the last six decades, the initiatives taken by Tamils in Sri Lanka to convince successive Sinhala regimes that both “The Tamil Nation” and “The Sinhala Nation” (which existed independently prior to the arrival of colonial power) should have equal rights, as recognized in the “International Bill of Human Rights” have failed to meet their aspirations.

Nearly seven years after the ending of the war, legitimate reparation, community recovery and national reconciliation have yet to take place. The community and its members need to be able to benefit from the developmental programs being undertaken. Economic recovery will not be sufficient; people need to reconstruct communities, and re-establish social norms and values which were lost as the result of the 30 years of war.

This justifies the need for rehabilitation as a form of reparation clarified by the UN ‘Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims’ as taking five forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. This should necessarily include psychosocial rehabilitation at the individual, family and community levels.

Significant advances have taken place in recognizing universal human rights, in particular the right to health that is now enshrined in international human rights law, humanitarian law and criminal law.

Transitional justice aims primarily to establish criminal accountability of perpetrators and to respect the rights of victims to reparation. The United Nations, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses.

Most of the victims in Sri Lanka, about half a million displaced people and ninety thousand war widows are still waiting for accountability, justice and reconciliation, seven years after the end of conflict. Transitional justice processes and mechanisms are a critical component of the United Nations framework for strengthening the rule of law and the Tamils should not accept anything less than that.