Monday, 11 December 2017 09:02

Managing Expectations Aout Post-War Justice Processes - Jehan Perera

The government’s commitment to the post-war transitional justice process can be seen in the Constitutional Council’s nomination of seven members to be commissioners of the Office of Missing Persons. As the Constitutional Council includes the Prime Minister, governmental sanction necessarily accompanies its choices although constitutional council members include the opposition and civil society. The movement forward of the reconciliation process has been in fits and starts, in particular where issues of transitional justice that involve the victims of war are concerned. But it is to the government’s credit that they have never abandoned it. This is particularly true of the office of missing persons, with its mandate to investigate any action where people went missing in any year on in any part of the country. The OMP has been constituted to be a permanent body with a standing not less than that of the Human Rights Commission.

The OMP was initially legislated in August 2016. Thereafter there have been prolonged delays in getting it functional. First the legislation regarding it had to be amended. This was on account of the original legislation failing to take into account some amendments made by political parties that were supportive of the legislation. The next delay was due to the President’s failure to allocate the OMP to any ministry. Finally in July 2017 President Sirisena allocated the OMP to the Reconciliation Ministry which comes under his direct purview. But this seemingly responsible gesture was not taken kindly by supporters of the reconciliation process who found fault with the President for taking on the OMP as they believed it was an over extension of his powers which had been limited by the 19th Amendment.

The latest delay has been in the appointment of commissioners to operationalise the OMP. It is reported that the Constitutional Council has now made its choice. The question is how long it will take to approve the commissioners. It is reported that one of the members of the Constitutional Council has objected to one of the proposed commissioners. However, the willingness of the Constitutional Council to nominate their choices of commissioners to the President suggests that even in the midst of an important election campaign, the government leaders do not think that the issue of the OMP is politically too sensitive to take up at this time. This indicates their belief that the majority of people also accept the need for a mechanism to inform families of missing persons of the whereabouts of their loved ones.

The desire to know the fate of persons who went missing without a trace is not unique to any one community. In the course of the three decade long war with the Tamil militant movement the majority of victims were Tamil. But large numbers of military personnel who were mostly Sinhalese also went missing. The Presidential Commission to Investigate into Complaints regarding Missing Persons that was appointed in August 2013 by former President of Sri Lanka, Mahinda Rajapaksa received over 24,000 complaints relating to missing persons of which about 5000 were from families of missing military personnel. There were several incidents during the course of the war in which the LTTE overran military camps and killed almost all they captured. In the case of the Mullaitivu army camp which fell in 1996, about a thousand soldiers were killed in two days and many of the bodies disposed of without record.

Another very large group of people who went missing was the tens of thousands who perished during the period of the JVP insurrection in the late 1980s. Even today there is no commonly accepted figure for casualties, although the figure of 60,000 is frequently mentioned. This is not dissimilar to the figure of 40,000 which is also frequently given in regard to those who lost their lives in the last phase of the LTTE war. Tracing what happened to the soldiers who died or to the victims of the JVP insurrection will be very difficult as the hard evidence will be lacking. As the OMP has not been given a time frame within which they need to conduct their investigations nor are they limited in their freedom to decide which incidents to investigate, they will certainly be asked to investigate the fate of these missing persons too.

The difficulties that the OMP will face in attempting to track down missing persons from the security forces and from the JVP period is an indication of the problems they will face when it comes to tracing the fate of those who went missing in the last phase of the war. The disposal of the bodies of the victims will mean it is going to be very difficult to find out what actually happened to them individually. A similar situation would exist in the cases of the JVP insurgents or suspects, some of whom were cremated on tyres on roads. The discovery of mass graves in Mannar in the North of the country and in Matale in the South of the country and a hotbed of JVP activity would suggest that many of the victims were also cremated or buried in mass graves.

However, these investigations have been proceeding very slowly due to both lack of forensic evidence expertise and resistance from vested interests. Studies done in other parts of the world have shown that the process of tracing people and identifying the identity of human remains after many years is an extremely difficult task. In Kosovo where over 30,000 people went missing even a well staffed and well equipped investigation system is able to process only about 100 cases a year. With Kosovo being in the middle of Europe it has access to both financial resources and expertise from neigbouring European countries. But the slow rate of tracing is an indication of the complex nature of ascertaining what happened in the past.

There are several challenges that the OMP will be subjected to that need to be considered. The first will be to manage the high expectations of the families of the missing persons. Many if not most of them continue to hope against hope that their loved ones continue to be alive and are being held in some place of detention, most likely by the security forces. Whenever government authorities tell them that there are no such places they get highly agitated and accuse those in government of being deceitful. Both President Sirisena and Prime Minister Wickremesinghe have each said that their government is not holding anyone in places of secret detention .

After the setting up of the OMP the expectation will be rife that it will swiftly locate the missing persons. But as the situation in Kosovo indicates the pace of finding out what happened to those who went missing is extremely time consuming. Such a slow pace will not be acceptable in Sri Lanka. The families of the missing are likely to believe that the OMP too is duping them. On the other hand, if the OMP discloses to the families that their loved one is either dead or they are unable to trace what happened to him, this truth will be difficult for the families to bear. It would be necessary that the OMP should function as part of a package of reforms that include the provision of psychological counseling and economic assistance for development purposes.

The biggest challenge will be that of ensuring accountability. The ongoing case former Navy spokesman and five others, who are currently in remand custody over the alleged disappearances of 11 youths in 2008 is an example. Replying to the defence lawyer who was critical of the treatment of a war hero, the lawyer representing the state said this was not an ordinary allegation but an investigation about the disappearances of eleven youths who were not even LTTE supporters. He said,
“We are mindful of the fact about people who had served the nation, but that does not mean that they received licenses to abduct innocent people to demand ransom. Investigations are still going on and much revealing evidence is being filed into this inquiry. So it is not appropriate that counsel behave shouting at the Judge like a bull in a fish market”

The victims are demanding an international or hybrid system of courts in which foreign judges will be active as they are mistrustful of the efficacy of the national system of justice. They want justice which is also important for society as a whole. The government position has been that foreign judges will not sit in judgment in the courts. The government needs to create a credible system of transitional justice in which all sections of the people can place their trust. It is also the responsibility of religious leaders, their clergy and civil society to both demand this and to educate the general population about these issues. It is easy for those who are not ready to bear responsibility to raise the expectations of the people. It is important that those with deep psychological wounds be cared for and unrealistic expectations be managed.