'Security Forces in Sri Lanka Continue to Operate With Impunity'

Sooka spoke to The Wire about Sri Lanka's transitional justice process, the sequencing of judicial mechanisms for the same and the role other countries can play.

Yasmin Sooka. Credit: Youtube screenshot

Yasmin Sooka. Credit: Youtube screenshot

Yasmin Sooka is the executive director of the Foundation for Human Rights in South Africa, and the International Truth and Justice Project (ITJP). She is regarded as a leading human rights lawyer, activist and an international expert in the fields of transitional justice, gender and international war crimes. She previously served on the UN Secretary-General’s Panel of Experts on Sri Lanka.

This interview has been edited lightly.

Would you tell us a little bit about ITJP’s work?

ITJP documents human rights violations and abuses as well as gathers evidence for the purposes of building a prima facie basis for criminal trials and truth recovery processes. In addition, the ITJP also carries out transitional justice work including the training of CSOs [civil society organisations]. The key elements of our documentation and evidence gathering include taking detailed witness statements from survivors of war crimes, torture, arbitrary detention, abductions and sexual violence. Our statements are supported by medico-legal reports. Typically, taking a statement may take between three and four days to complete, with statements running into many pages supported by exhibits like maps, sketches of cells and forensic reports. To date, we have taken 240 statements, which means we have one of the biggest databases of in-depth testimonies attesting to recent Sri Lankan human rights violations and abuses. The evidence gathered constitutes a basis for an independent investigation as in many instances we have identified several alleged perpetrators in the military and police. We hope one day a credible international independent investigative unit with an independent prosecutor will be set up so the people of Sri Lanka can discover the truth.

The evidence gathered also provides the basis for a submission to the truth commission in Sri Lanka if it is ever established and will expose the violations perpetrated by the security forces. Of course we have pointed out in our recent publication Putting the Wolf to Guard the Sheep that all of this also depends on witness protection for the witnesses.

It’s been more than two years since Maithripala Sirisena was elected president. How much has changed in Sri Lanka since January 2015?

Internationally the approach towards Sri Lanka has shifted 180 degrees. Where once there would have been intolerance and frustration with the Rajapaksas now there is patience and a willingness to give more time. In terms of the situation inside the country, clearly the atmosphere has eased and activists have more space in which to function, the Human Rights Commission has credible leadership but still lacks capacity and generally civil rights have improved in the south. However in the former conflict areas, Tamil civilians live under a militarised and securitised system in which surveillance and intimidation constitute everyday life. The violations and abuses are ongoing and include abductions, torture and sexual violence which the ITJP unfortunately continues to document once the victims flee the country. This level of militarisation is unacceptable eight years after the war. It also demonstrates that the security forces continue to operate with impunity.

In terms of fulfilling its transitional justice commitments, how would you describe the government’s performance?

The Sirisena government came to power amidst great hope and good will for transformation particularly from Tamil citizens who voted for this government. Shockingly we have witnessed two years of inaction. We have argued that the Sirisena government is complicit in the ongoing violations and abuses because it has done nothing to investigate the very grave allegations of system crimes set out in the [UN Office of the High Commissioner for Human Rights] OHCHR Investigation report (OISL).

The emphasis has been on procedures, rhetoric and box-ticking but what this government has failed to do is set out a clear vision of why Sri Lanka needs a transition from the past. The government has also failed to impress upon society in the south that this is necessary if Sri Lanka is to take its place proudly in the international community. The transition is necessary to transform Sri Lanka from a state mired in serious violations and abuses which quite frankly amount to war crimes and crimes against humanity in which its criminal justice institutions have been tarnished. While there is a great deal of glib talk about reconciliation; it is extremely shallow as reconciliation involves a reckoning and an acknowledgement of the truth about the past including past violations. In reality, what we have witnessed is denial from the politicians and many in civil society about the extent of mass atrocities perpetrated by the security forces. What we have is a structural and institutional problem in the country which unless addressed will result in ongoing violations and abuses as we know is happening. Reform is urgently needed for Sinhalese and Muslims as well as Tamils.

In terms of the transitional justice process, we all heralded the national consultation process which took a long time and was perceived as doing the job. When it was farmed out to NGOs we stifled our criticism. It is precisely this farming out of a function, which the government ought to have led, which has allowed the president and prime minister to disown the recommendations, leading many to ask whether the government is serious about the transition. Sadly civil society and many political parties were also duped into believing that the government was sincere in its commitments and now to their cost they are discovering differently.

Legislation establishing the Office of Missing Persons (OMP) was passed last year. However the chaos and confusion regarding the text in parliament has seen nothing happen. Six months later there is no body established. Best international practice around appointments indicate the need for a transparent vetting process for the selection of persons to run the OMP and any other transitional justice mechanism; rumours abound that the government intends to appoint mainly Sinhalese persons to head a body that will primarily deal with Tamil disappearances. Consideration should be given to appointing Sinhalese, Tamils and Muslims in order to inspire confidence and trust amongst the families of the disappeared. An open nomination and vetting process would ensure that affected communities have the opportunity to nominate people they consider credible particularly those amongst them who have spent a great number of years working on issues of the disappeared. A number of Tamil activists including priests spring to mind as they have risked their lives over years to collect lists of the disappeared.

How involved should international actors be in Sri Lanka’s transitional justice process?

Any transitional justice process, if it is to succeed, must be locally owned not by the elites and the politicians but by the victims. However decades of violations and abuses as well as disillusionment with the government and its institutions have left many, if not all Tamil victims and witnesses, deeply distrustful. Many have indicated that if they are to testify to a truth commission or court there needs to be meaningful international involvement in that body to win their trust. A “credible domestic mechanism” is a contradiction in terms. They have all failed; why would things be different now when what’s at stake is the investigation of even greater crimes than in the past. This is compounded by the fact that no witness protection exists and whether a witness is in Sri Lanka or abroad there needs to be international involvement in any witness protection programme.

There’s been some debate surrounding the sequencing of transitional justice mechanisms. What do you think would be the most effective approach?

In many countries politicians and elite always try to argue that there should be sequencing not just of the mechanisms but also many argue a peace versus justice option. The issue of sequencing is largely dependent on the context in a particular country. In the Sri Lankan context one already has the outcome of the OISL inquiry as well as the evidence gathered by groups, including the ITJP, which provides a basis for any criminal accountability mechanism to carry out its work. At the same time, this should not preclude other mechanisms like the truth commission and the OMP from doing their work. This has happened in many countries including Sierra Leone, and Colombia will soon see a plethora of transitional justice mechanisms operating side by side.

Of course, what has to be worked on is the relationship between these mechanism to optimise resources and access to information. However, given the different purposes, written into the mandate of the truth commission should be the obligation to name names and pass this onto the criminal justice mechanisms as well as to refer the cases of the missing and the disappeared to the OMP.

A lesson that we all learnt from the Sierra Leonean experiences which saw a truth commission operating side by side with the special court is that there should be guidelines on the relationship between these bodies if they are to be successful and achieve their respective mandates.

Some people have argued that accountability for wartime abuses should be de-prioritised in favour of a political solution to the longstanding ethnic conflict. Relatedly, others have asserted that economic justice should be front and center, and that the call for accountability is actually driven by international actors. What’s your take on all of this?

In the Sri Lankan context a political and economic solution to the conflict is absolutely essential. However, this does not preclude that accountability and addressing entrenched impunity for serious crimes is equally important. The scale and gravity of the crimes perpetrated in 2009 against civilians demands justice. Listening to the traumatised survivors as I did on the UN Panel of Experts as well as the many courageous individuals who stayed behind in the war zone, it is obvious that these are extraordinary crimes for which there must ultimately be accountability.

In my view it represents one of the great tragedies of our time that tens of thousands of civilians were killed in a matter of weeks in a tiny area of the country without the international community intervening – this challenges the entire regime of international humanitarian law and the very notions of decency on which the responsibility of the international community is built. The world cannot let this slip. Nor can Sri Lankans. In my work in South Africa and Sierra Leone as well as many other parts of the world, political change is important as is economic transformation but bitter experience has taught me that the guarantee of non-recurrence requires measures of accountability – particularly prosecutions of those who were in command responsibility positions.

Victims also require institutional reform in order to regain trust in the institutions of the state believing that they will work for them irrespective of their religious belief, ethnicity, race and group. In many countries the politicians argue that victims need development rather than reparations and we remind them that every citizen is entitled to development, but the recognition of the wrongdoing suffered by a victim demands acknowledgement and reparations. They need to eat but not at the expense of justice. Both the national consultations as well as the various consultations which were carried out outside of the country have indicated that justice is critical and for victims this means holding the perpetrators criminally accountable. It is false to portray the demand for criminal accountability as an international demand – this is done by those who want to avoid it because they have something to hide.

The 34th session of the UN Human Rights Council runs from February 27 to March 24 and Sri Lanka is on the agenda. What would you like to see happen?

A tough, honest report by the High Commissioner assessing Sri Lanka’s lack of good faith in implementing Resolution 30/1 with the council setting clear benchmarks and time frames for the full implementation of all commitments, including essentially the foreign and commonwealth judges, investigators and prosecutors for the court which must be hybrid not domestic. OHCHR has been very clear that a domestic process will not work – we’d like to see them impress this point on the international community more forcefully.