CHOGM mooted TRC, ill-fit for Sri Lanka, say ANU fellow, legal scholar
[TamilNet, Sunday, 08 December 2013, 17:54 GMT]
Establishing a Truth and Reconciliation Commission (TRC) modeled on the South Africa (SA) experience, viewed by Sri Lanka backers as an urgent need to mitigate possible strong actions by the International Community against Sri Lanka over its rights violations, appears as an imminent outcome from the recently concluded Commonwealth Meeting [CHOGM]. But a Sri Lanka journalist who is a visiting Australian National University fellow, says whereas in the post-apartheid South Africa context and under the leadership of Mandela, TRC was made to work in SA, in Sri Lanka proposing a TRC without defining what it means, makes the effort appear only as "another procrastinating tactic." The scholar cautions, in Sri Lanka, no credible investigations into rights violations are likely to happen, and the consequences for Sri Lanka, in terms of being outlawed from the community of nations, are dire.
Ms. Kishali Jeyawardena writes, TRC "was meticulously planned and carefully executed by the country’s leading clergy, judicial figures and public personalities of unimpeachable integrity. Importantly this was accompanied by a gradual crafting of workable democratic structures, an advanced Bill of Rights and a proudly independent South African judiciary. "The TRC was not conceived out of the blue as it were and dropped down into the country as an excuse to avoid dealing with the general democratic process of government while everything remained dysfunctional elsewhere. It was peculiar to South Africa. Similar models have not worked elsewhere, even in the African region as we have well seen. Where Sri Lanka is concerned, suggesting a TRC without any conception of what this actually means but as another procrastinating tactic seems so childishly simplistic that it truly beggars belief," Ms Jeyawardena adds.
While the political and social context in post-war Sri Lanka and those of the post-apartheid SA differ markedly in the required fundamental aspects to make a TRC viable and a useful instrument to provide transitional justice, Sri Lanka will likely embrace TRC as an exercise to delay international action, political observers said.
Sri Lanka has routinely created several "sham" Commissions to forestall punitive actions from the IC over rights violations.
Experts have pointed out that the nearly twenty Truth Commissions have been active during the past 25 years and the general consensus of practitions of transnational justice is that the political and social context should drive, first whether a TRC is applicable to the prevailing environment, and if so, secondly, should the formation and sponsorship of the TRC.
A spokesperson for Tamils Against Genocide (TAG), a US-based activist organization, commented, "Functionally, a truth commission, in general, substitutes for the retributive accountability that is provided by a criminal justice tribunal, a non-punitive forum where reconciliation between the victim and victimizer is achieved through truth-telling. This model of transitional justice is unresponsive to a post-conflict scenario where the victimizer, such as the Rajapakse administration, denies wrongdoing, and where the alleged perpetrator gets to choose the form and membership, and generally control the outcome of the Commission.
"Denial of wrongdoing logically obviates the reasonable possibility of meaningful truth-telling, and by extension, reconciliation flowing from such truth-telling, which a truth commission is instituted to deliver. If implemented in such a scenario, a truth commission will not deter but rather will encourage the recurrence of wrongful conduct by signifying that the international community is willing to tolerate gross violations of international criminal law perpetrated by the GoSL without consequences," TAG said.
Establishing a Truth and Reconciliation Commission (TRC) modeled on the South Africa (SA) experience, viewed by Sri Lanka backers as an urgent need to mitigate possible strong actions by the International Community against Sri Lanka over its rights violations, appears as an imminent outcome from the recently concluded Commonwealth Meeting [CHOGM]. But a Sri Lanka journalist who is a visiting Australian National University fellow, says whereas in the post-apartheid South Africa context and under the leadership of Mandela, TRC was made to work in SA, in Sri Lanka proposing a TRC without defining what it means, makes the effort appear only as "another procrastinating tactic." The scholar cautions, in Sri Lanka, no credible investigations into rights violations are likely to happen, and the consequences for Sri Lanka, in terms of being outlawed from the community of nations, are dire.
Ms. Kishali Jeyawardena writes, TRC "was meticulously planned and carefully executed by the country’s leading clergy, judicial figures and public personalities of unimpeachable integrity. Importantly this was accompanied by a gradual crafting of workable democratic structures, an advanced Bill of Rights and a proudly independent South African judiciary. "The TRC was not conceived out of the blue as it were and dropped down into the country as an excuse to avoid dealing with the general democratic process of government while everything remained dysfunctional elsewhere. It was peculiar to South Africa. Similar models have not worked elsewhere, even in the African region as we have well seen. Where Sri Lanka is concerned, suggesting a TRC without any conception of what this actually means but as another procrastinating tactic seems so childishly simplistic that it truly beggars belief," Ms Jeyawardena adds.
While the political and social context in post-war Sri Lanka and those of the post-apartheid SA differ markedly in the required fundamental aspects to make a TRC viable and a useful instrument to provide transitional justice, Sri Lanka will likely embrace TRC as an exercise to delay international action, political observers said.
Sri Lanka has routinely created several "sham" Commissions to forestall punitive actions from the IC over rights violations.
Experts have pointed out that the nearly twenty Truth Commissions have been active during the past 25 years and the general consensus of practitions of transnational justice is that the political and social context should drive, first whether a TRC is applicable to the prevailing environment, and if so, secondly, should the formation and sponsorship of the TRC.
A spokesperson for Tamils Against Genocide (TAG), a US-based activist organization, commented, "Functionally, a truth commission, in general, substitutes for the retributive accountability that is provided by a criminal justice tribunal, a non-punitive forum where reconciliation between the victim and victimizer is achieved through truth-telling. This model of transitional justice is unresponsive to a post-conflict scenario where the victimizer, such as the Rajapakse administration, denies wrongdoing, and where the alleged perpetrator gets to choose the form and membership, and generally control the outcome of the Commission.
"Denial of wrongdoing logically obviates the reasonable possibility of meaningful truth-telling, and by extension, reconciliation flowing from such truth-telling, which a truth commission is instituted to deliver. If implemented in such a scenario, a truth commission will not deter but rather will encourage the recurrence of wrongful conduct by signifying that the international community is willing to tolerate gross violations of international criminal law perpetrated by the GoSL without consequences," TAG said.
TRCs are set up in response to
specific human rights abuses, which in turn are an outgrowth of the
particular history, political culture, and institutional structure of a
country. Experts acknowledge that any given political context provides
both enabling and constraining forces, and provide five specific areas
of importance, and the following highlights the unsuitability of a TRC
for Sri Lanka.
- Nature of violence and human rights abuses to be investigated: The crimes to be investigated will likely point to command responsibility to high officials in the Government, (see Ambassador Butenis memo exposed by Wikileaks) including Sri Lanka's President, and one could see the futility of the local TRC officials allowing "their" President to be incriminated.
- Nature of political transition: Unlike in SA where the regime change involved the victims gaining power, in Sri Lanka, there was no change in power that would enable the victims to rightly expect justice. The perpetrators, the victors, and the rulers before and after the war are all Sinhalese.
- Extent of dominance and power of perpetrators after transition: While the victims, black africans, gained power under Mandela in SA, in Sri Lanka, the Rajapakse family rule was further consolidated after the war. UN High Commissioner, Navi Pillay, cautioned that Sri Lanka is moving towards an authoritarian state.
- Prevailing focus on healing or justice: In SA, the victims under the visionary leadership of Mandela pursued reconciliation with the perpetrators of the crime, and sought political accommodation in a democratic setup. In Sri Lanka, during the four years after the war, and years before, under Rajapakses, NGOs have documented sham commissions created by the ruling family to divert focus and as a delaying tactic.
- Public support for a truth commission: In Sri Lanka the support and opposition to TRC will likely be in the ethnic lines. TRC will unlikely to be accepted by the Tamils.
Sri
Lanka legal scholar, Niran Anketell, concludes in a fitting article
presented at the International Centre for Ethnic Studies in May 2013:
"...any attempt to mimic a SA TRC process unless accompanied by a
genuine and concrete change of behaviour and strategy on the part of
government—including a demonstrable willingness to investigate and
prosecute crimes, as well as securing a full and final political deal on
restructuring the nature of the state through power sharing—will not
succeed. The Sri Lankan government’s unwillingness to consider criminal
investigation and prosecutions of those responsible for atrocities
committed during and after the war forecloses the prospect of hidden
truths being unearthed through a TRC. Further, with or without a
political deal, a TRC that offers any amnesty to perpetrators will be
perceived as illegitimate by Tamils and illegal by the international
community, and will exacerbate divisions between the state and victims."
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