Truth and Reconciliation Commission Proposal Unlikely To See Fruition

Sri Lanka is gradually coming under the influence of the West, with the non-Western powers clearing the ground for that. China is dragging its feet on helping Lanka get out of the debt trap. India has already done its utmost, in terms of emergency assistance, and is waiting to see what the rest of the international community has up its sleeve on the issue of debt restructuring. That leaves Sri Lanka with no option but to bank on the West and its institutions to help it emerge from the economic rut.

But the West's demands have wide-ranging domestic political implications. Colombo has to meet not just the IMF's demands for drastic adjustments in the economic structure, but also the expectations of the UN Human Rights Council (UNHRC) and the human rights stipulations attached to the European Union's trade concessions under its GSP + scheme.

The September 6 UNHRC resolution on Sri Lanka urged the government to "re-launch a comprehensive and victim-centered strategy on transitional justice and accountability, with a time-bound plan to implement outstanding commitments, including taking steps in relation to the establishment of a credible truth-seeking mechanism and an ad hoc special court." Victims should be given a role in determining the shape of the mechanisms, it added.

The resolution urged States to cooperate in accountability efforts, "including by using available avenues of extraterritorial and universal jurisdiction, to investigate and prosecute crimes under international law committed in Sri Lanka."

Sri Lanka rejected the resolution on the grounds that these stipulations violated the country's Constitution. But it admitted the need to promote human rights and ethnic reconciliation as per international standards, and kept the door open for cooperation with the Office of the High Commissioner of Human Rights (OHCHR).

Sri Lanka could not totally shun the UNHRC as the latter is dominated by the Western powers on whom Sri Lanka is heavily dependent economically. Most of its trade is with the West.

That brings one to the EU's GSP+ scheme. GSP+ gives Sri Lanka preferential access to the EU, the single biggest market for the island's US$ 5 billion garment industry. Reuters reported in September 2021 that Sri Lanka exported 45 percent (worth US$ 2.7 billion) of its garments to the EU in the first seven months of 2021. And 60 percent of the island's apparel exports to the EU had benefited from the EU's GSP+ concessions, at 9.5 percent cost benefit.

But the concessions are linked to the ratification of 27 international protocols on labor, environment and human rights. And here is where Lanka has been wanting. The EU has been regularly complaining about the indifferent application of these protocols. In June 2021, the EU parliament had adopted a resolution suggesting that the EU consider withdrawing the GSP+ facility citing "deep concern" over rights violations.

In October 2022, the EU's Sixth Working Group on Governance, Rule of Law and Human Rights, visited Sri Lanka. It expressed concern over the continued existence of the draconian Prevention of Terrorism Act (PTA) and the continued detention of suspects without trial.

Sources close to the government said that they are confident that the EU will not withdraw GSP+ in view of the severe economic crisis in the island. But withdrawal is a theoretical possibility. And the stakes for Sri Lanka are high. The apparel sector employs 350,000 Lankans directly, and 700,000 indirectly, 80 percent of whom are rural women. These will be badly affected if GSP+ is terminated.

Aware of this, President Ranil Wickremesinghe has launched a fresh ethnic reconciliation program. A Sunday newspaper said that the President has appointed a ministerial team to put together the broad outlines of the program that could be discussed with all stakeholders. The team, led by Prime Minister Dinesh Gunawardena, has Foreign Minister Ali Sabry, Fisheries Minister Douglas Devananda and Justice and Constitutional Reforms Minister Wijeyadasa Rajapaksha. The team will meet every Monday so it can finish its task early.

One of the mechanisms the government wants to set up is a modified form of South Africa's Truth and Reconciliation Commission (TRC), in which people can unburden themselves and either accept or reject the charges. They could get death certificates and reparations. Errant security forces personnel could get amnesty but at least they would have owned their guilt. It is a way to bring about "closure" said a legal expert.

When Wickremesinghe was Prime Minister in 2018, he had done a concept paper on a TRC for Sri Lanka (TRCSL). It was to be established by an Act of Parliament. Its mandate was to be to investigate and make recommendations about complaints "relating to damage and/or harm caused to persons as a result of loss of life, or damage and/or harm to persons or property, (i) in the course of, or reasonably connected to, or consequent to the armed conflict, or its aftermath; or ii) in connection with political unrest or civil disturbances in Sri Lanka; or (iii) where such violations are in the nature of prolonged and grave damage and/or harm suffered by individuals, groups or communities of people of Sri Lanka."

The Act of Parliament was to incorporate statutory provisions to appoint a Monitoring Committee to "enable all Sri Lankan citizens, irrespective of race or religion, including families of police and security forces personnel, civilians in villages that came under attack by terrorists, security forces personnel and police personnel, and all affected persons in all parts of the country, to submit their grievances suffered during any phase of civil disturbances, political unrest or armed conflict that has occurred in the past.

"The proposed TRCSL should have sufficient administrative and investigative powers, including those granted to Commissions of Inquiry. This includes powers to compel the cooperation of persons, State institutions, and public officers in the course of its work.

"While the TRCSL will not engage in prosecutions, it should be vested with sufficient investigative powers. But the TRCSL's recommendations shall not be deemed to be a determination of civil or criminal liability of any person," the paper clarified.

The feasibility of the scheme has been questioned. While the perpetrators of State terror can be traced and punished, the perpetrators of terrorism cannot be tracked. The latter could well be among the killed or missing.

Will anyone in the Security Forces admit to war crimes and rights violations even when there is a provision for amnesty? Will civilian victims of violations by the State accept amnesty as a fair solution? Would nationalistic feelings allow the personnel of the forces to be exposed? No wonder the 2018 proposal fell by the wayside.

The model, the South African TRC (TRCSA), itself did not deliver its objectives fully, studies have pointed out. On the positive side, the TRCSA held public hearings, received more than 22,000 statements from victims, and the victims of the State as well the liberation movements gave vent to their feelings freely.

While the top brass of the Security Forces did not cooperate, the lower ranks did, with the violators applying for amnesty. Members of the liberation forces argued that they had done no wrong as they were fighting a just war but eventually they too testified. Seven thousand applied for amnesty and 1,500 got it. Public exposure went a long way toward reducing the trauma of the victims.