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Transitional justice: Lanka needs its own formula, says US law don
The transitional justice field has created its own industry and language with a tendency to repeat mantras, resulting in the stifling of critical thinking, a visiting professor of transitional justice and international human rights law said this week.
“There are some good things one can learn from the transitional justice field,” said Prof. Ronald C Slye, from the Seattle University’s Faculty of Law. “But it’s almost created its own industry and its own language. And I think there’s a tendency to repeat certain mantras like, ‘The truth will set you free’. With many things like that, there’s a kernel of truth, but I think they tend to lead to a lack of critical thinking.”
Ronald C Slye
“So, just because something worked in South Africa does not mean it’s going to work here,” Prof. Slye, who also specialises in public international law and international criminal law, said. “I think that’s a mistake many countries make. They say, oh, South Africa was so successful. Kenya was so successful or not. I think one needs to ask why it was successful or why it failed.”
On July 31, Prof Slye delivered the 17th Neelan Tiruchelvam Memorial Lecture titled ‘Difficult Issues, Strategic Choices: Crafting a Coherent Sri Lankan Transitional Justice Process’ in Colombo. Dr Tiruchelvam was killed in 1999 by a Tamil Tiger suicide bomber.
The United Nations describes transitional justice as 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. While this discussion is ongoing in Sri Lanka, it is still limited to certain civil society and political circles.
“Any sort of endeavour in a democracy needs very strong public engagement,” Prof Slye warned. “Otherwise, while decisions may be made, they may not last. If people don’t know what they are, or they have not been part of the process, they are less likely to support whatever decision that has been made.”
“Part of what I understand the problem to be here is that there has not been a lot of public discussion or communication,” he continued. “There are things happening. And there are also perceptions that things are happening without understanding what they are. That is something that has to be addressed.”
“You want a process like this to have support from a wide variety of stakeholders and constituencies,” Prof Slye said. “So, if it’s only a particular community that is supporting it, then it just means it will be less effective.”
The proposal for a hybrid court involving foreign judges has proved controversial. Prof Slye said foreign involvement could help provided the local judges had control. “The pros are that you can get some comparative experience,” he said. “There is that perception and reality of a more objective view from somebody from the outside who is not viewed as being aligned with a particular internal political or ethnic faction. This can increase the legitimacy of the processes both domestically and internationally.”
“The cons are that you don’t want to see it controlled by foreigners, both because that’s just bad but also because it is going to mean that the local population of Sri Lanka is not going to accept it,” Prof Slye emphasised. If it is controlled by foreign judges or it is perceived as being controlled by foreign interests, then its legitimacy will be undercut.”
“What is important if one is going to have foreign involvement is to be really careful about who those foreigners are,” he said. “You don’t want somebody coming in who thinks he or she has all the answers. You want somebody to come in who is somewhat humble.”
Prof Slye was one of three international commissioners for the Kenyan Truth, Justice and Reconciliation Commission. “One of the things in Kenya perhaps similar to Sri Lanka is that there are very strong ethnic divisions,” he explained. “People tend to view themselves in Kenya, first by their ethnicity, then by their national identity.”
“What was needed in Kenya, and has certainly not been accomplished yet, is to create a more cohesive sense of being Kenyan,” he said. “That is also something that is needed in Sri Lanka. So, creating a new constitution, creating an accountability mechanism, creating something like a truth commission or engaging in truth commission type processes could contribute to that, importantly.”
Civil society had roles in supporting as well as in monitoring and critiquing this process. “Individual civil society organisations need to be careful in not merging those two because, if you’re going to be part of implementing the process, then it’s harder to be a more objective critic or monitor,” he said.
These processes were difficult and somewhat sui generis. What happens in Sri Lanka will be influenced by Sri Lankan history, culture and ethnic differences. “Some victims and survivors may not want to talk about what had happened and I think that needs to be respected,” Prof Slye asserted. “And some of them want to talk about what happened, and that also should be respected.”
There was considerable fluidity in Sri Lanka that complicated ongoing efforts, he reflected: “You have a new coalition government. You have, not only divisions within the government, but within parties within the government. On the one hand, it makes things very complex politically. It also opens up opportunities because things are more open.”
However, it could go forth in a positive way or in a negative way. People on the ground and civil society should push things in a positive direction. Everything needs to be talked about in terms of the Sri Lankan experience. “I don’t think it’s necessarily bad that the UN Human Rights Council is prescribing certain things for Sri Lanka to do, but I think, ultimately, it is going to be a Sri Lanka decision,” he reiterated.
But nothing should be off the table, including punishment for wrongdoers. For Sri Lanka, if the starting point will be that certain people and certain communities will be off limits in terms of accountability, then, already that’s going down the wrong path,” he said.
This did not mean that there would need to be a spate of prosecutions. “It may have to lead to some,” Prof. Slye said. “Again, that is for Sri Lankans to decide.” Realistically, it would have to be decided who will be prosecuted and it would have to be publicly explained why. But there could be creative punishments, such as contribution towards reparations or community service. “What they have done in Colombia is interesting,” he described. “They have created peace tribunals where, if you reveal what you know about the past, you are subject to much lower sentences than you might otherwise be. So there are incentives, trade-offs, for getting that legal benefit. I think the big mistake is to just give people legal protection without getting anything in return.”