Reparations are key to achieving transitional justice

Updated: 00:00 GMT, Jan 1, 1970 | Published: 05:43 GMT, Aug 22, 2018 |

On July 17, Prime Minister Ranil Wickremesinghe presented a Bill to Parliament to establish an Office of Reparations (“the Office”). Before the Bill was presented, members of civil society issued a joint statement expressing concerns over aspects of the Bill. Civil society’s principal concerns related to limitations on the powers of the Office. The Bill provides that the Office can formulate and recommend reparations policies and guidelines to Cabinet, but can only implement policies if Cabinet approves them (section 11(g)-(h)). This means that the decision-making power over matters that could include the eligibility of persons for reparations as well as guidelines concerning the amount individuals or communities should receive, lies with Cabinet – not the Office. Another concern was the requirement that Parliament approve policies authorising the disbursement of funds by the Office (section 22(4)). According to civil society, this introduces an “unnecessary layer of Parliamentary oversight”, particularly as the Office would have an established fund to carry out its mandate. These issues could hamper the ability of the Office to be independent and impartial, which is critical to the success of a reparations scheme.

Irrespective of legitimate concerns regarding the proposed powers of the Office, Sri Lanka is legally required under international law to provide reparations to victims of violations of human rights and international humanitarian law (“IHL” – a body of laws governing the conduct of hostilities in armed conflict). Accordingly, the Bill does not exclude ex-fighters or their families from claiming reparations. As per the Bill, to be eligible for reparations, the violation must have occurred in connection with the war, in the course of systemic gross human rights violations, or be due to an enforced disappearance (section 27). While the Bill does not exclude ex-fighters from its definition of eligible persons, it is concerning that some Cabinet ministers oppose the provision of reparations to families of ex-LTTE cadres. (Minister Patali Champika Ranawaka and Joint Opposition member Wimal Weerawansa are reported to have stated their opposition to providing reparations to families of ex-LTTE fighters. Even more concerning is President Maithripala Sirisena reportedly recently refusing to allow Cabinet to discuss a proposed policy on reparations for ex-LTTE fighters and their next of kin.)

Limiting the categories of persons who may receive reparations is inconsistent with Sri Lanka’s international legal obligations, its commitments to the U.N. and the recommendations of the Lessons Learned and Reconciliation Commission (“the LLRC”) (at page 250 of its Report). According to international law, a person who participates as a fighter in an armed conflict may still suffer violations of his or her human rights or be affected by violations of IHL. Moreover, efforts to limit the scope of reparations seriously threaten Sri Lanka’s progress towards transitional justice.

States have specific obligations to provide reparations to victims of violations under international human rights law. Sri Lanka has ratified a number of international human rights treaties which require Sri Lanka to ensure that individuals have access to remedies for violations of treaty rights. These treaties guarantee the right to reparations of victims of torture, arbitrary arrest and detention, arbitrary killings, enforced disappearance and, more broadly, violations of civil and political rights.

Additionally, there are emerging norms under IHL supporting a person’s rights to receive reparations from a State for violations of IHL. International law scholars have argued that this right has achieved a degree of recognition as forming part of customary international law. (Christine Evans makes this argument in her book “The Right to Reparation in International Law for Victims of Armed Conflict” (2012).) Transitional justice mechanisms in countries such as Columbia and Guatemala and in international courts and tribunals, have provided reparations to victims directly. These institutions are evidence of developing State practice to enable victims to receive reparations for IHL and other human rights abuses.

Thus reparations should be available for all persons whose rights under international human rights law or IHL were violated, regardless of whether they participated in hostilities. Such an approach would not only ensure compliance with international law, it would also be in line with the recommendations of domestic commissions such as the LLRC. In fact, the LLRC embraced an inclusive approach to eligibility for reparations by stating that “in principle, ex-combatants and next of kin should also be considered eligible for compensatory relief”.

Reparations are a critical component of Sri Lanka’s commitment to transitional justice. Accordingly, the creation of an Office of Reparations is one of Sri Lanka’s core commitments under U.N. Human Rights Council Resolutions 30/1 and 34/1. The government’s commitment reflects the centrality of a comprehensive, inclusive and non-discriminatory reparations scheme to achieving reconciliation. The government must therefore honour its international obligations and the spirit of its previous commitments to the international community. If it does not, the majority of war-affected people are unlikely to trust that the government is making meaningful attempts to come to terms with the past.

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