Human Rights Commission of Sri Lanka

Transitional justice and the rule of law

Remedies to victims...

On transitional justice, with the overall goals of combating impunity, providing remedies to victims and promoting respect for human rights and the rule of law. The outcome document could be further elaborated in a publication.

Background

In recent decades there has been an increased focus on transitional justice and the rule of law in post-conflict societies. Transitional justice strategies have become a necessary step in promoting justice for past abuses and efforts at reconciliation.

In 2004, in his report to the Security Council, the UN Secretary General noted that important lessons can be learned from different experiences of transitional justice.

The Secretary General mentioned that “success will depend on a number of critical factors, among them the need to ensure a common basis in international norms and standards and to mobilize the necessary resources for a sustainable investment injustice”.

Rather than investing on “one-size-fits-all formulas” or “importation of foreign models”, the Secretary General report encourages to support “national assessments, national participation and national needs and aspirations”.

As a matter of act, “effective strategies will seek to support both technical capacity for reform and political will for reform.”

In line with the Secretary General and General Assembly’s position, the OHCHR Plan of Action 2006-2007 focuses on fighting against impunity as one of the key actions to ensure respect for justice and the rule of law, which are, in turn, necessary to effective promotion and protection of human rights.

Particularly, OHCHR works to foster transitional justice, strengthen the rule of law and national systems of human rights protection, “including institutional capacities for the administration of justice and remedies available for those claiming their rights”.

This involves providing assistance to programmes aimed at combating impunity and providing effective remedies and reparations to victims of human rights violations.

National Human Rights Institutions (NHRIs) are crucial for ensuring promotion and protection of human rights at the national level. OHCHR strongly support NHRIs to play an effective role in assisting in developing and implementation of transitional justice strategies.

The role that NHRIs are called to play in such a crucial phase is as sensitive as relevant, as they can, for example, raise awareness about various transitional justice mechanisms as well as experiences and lessons learned worldwide; engage civil society and institutional actors to spearhead the process towards transitional justice options; assist in developing and implementing transitional justice strategies; and ensuring appropriate follow up.

Moreover, they can, by their mandate, gather information and document cases of past abuses, monitor and investigate human rights violations, co-operate with national judicial mechanisms, assist victims and promote the adoption ad-hock measures for them, advice on institutional reforms, and promote an appropriate achieving of the documented cases of violations.

Therefore, an informed background and overview of how to best perform their institutional role of guarantor of the human rights protection and promotion is indispensable.

As stated in the Secretary General’s report, “advancing in fragile post-conflict setting requires strategic planning, careful integration and sensible sequencing of activities.

Approaches focusing only on one or another institution, or ignoring civil society or victims, will not be effective”.

In June 2006, in Belfast, the Office of the United Nations High Commissioner for Human Rights (OHCHR), together with the Northern Ireland Human Rights Commission, organised an International Roundtable on “The role of National Human Rights Institutions in conflict and post conflict situations” with the aim of strengthening the capacity of National Human Rights Institutions (NHRIs) to promote and protect human rights during conflict and post conflict periods.

During this three day roundtable, NHRIs discussed, inter alia, the challenges they face and the remedies they can propose in relation to mediation and reconciliation in situations of conflict; what avenues NHRIs may turn to when faced with situations of severe conflict and post-conflict; the importance of co-operation and mutually reinforcing regional and international relationships among NHRIs in situation of conflicts.

Participants agreed on the importance of maintaining the mandate of NHRIs in monitoring human rights situations and reporting human rights violations.

They also highlighted the importance of ensuring accountability and addressing human rights violations which occurred during conflict. Finally, participants greatly appreciated the opportunity to exchange experiences and reinforce the co-operation among themselves and with OHCHR on these issues.

In light of the increasing involvement of NHRIs in transitional justice activities (e.g.: Mauritania, Nepal, Sri Lanka, East Timor, Morocco) and as a follow up to the Belfast roundtable, the National Institutions Unit has been requested to facilitate a global reflection on how NHRIs can ensure accountability and contribute to combating impunity.

In March 2007, in a meeting held at margin of the 19th Session of the International Co-ordinating Committee of NHRIs (ICC), the National Institutions Unit discussed with NHRIs from Palestine, Azerbaijan, Afghanistan and Northern Ireland the opportunity to hold an ad hoc event on transitional justice for NHRIs.

Immediate objectives

The main objectives of the roundtable are:

* Engaging NHRIs, together with international and regional experts, in a joint reflection on transitional justice related issues. The roundtable will provide the forum for NHRIs to discuss and share their experiences and lessons learned in the area of transitional justice.

* Raising awareness of NHRIs on the potential role they can play during the period of transition also as to contribute to combating impunity and to promoting the rule of law.

* Formulating strategies and recommendations for NHRIs’ engagement on transitional justice

Deliverables

* Take stock of relevant NHRIs initiatives and lessons learned in the area of transitional justice;

* Develop an operational tool for NHRIs on transitional justice, including strategies and recommendations for NHRIs’ engagement

* Report of the roundtable

Expected outcome

Greater awareness and involvement of NHRIs in transitional justice, including strategies and recommendations for their effective engagement in this area, so as to contribute to the overall goal of combating impunity, promoting accountability and respect for the rule of law.

United Nations Country Teams (UNCTs) and OHCHR field offices including Human Rights Components of UN Peace Missions will be key partners and assist NHRIs in implementing transitional justice related projects and activities.

Strategic approach

The ability to promote, monitor and ensure respect for justice and the rule of law in their respective countries is a core component of effective NHRIs. An assisted reflection on challenges and opportunities of transitional justice would strengthen NHRIs capacities at several levels:

* At the national level: specific priorities are to be identified and addressed in collaboration with authorities and civil society (international mechanisms can be activated for support);

* At the regional level: joint activities could be identified through the networks of NHRIs, which can then benefit from each others’ experience;

* At the international level: NHRIs would be more aware of relevant instruments and mechanisms that their countries have to adhere to by virtue of their obligations (if any), and that NHRIs can take as a point of reference to orient/guide their actions.

Methodology

In November 2007, OHCHR (National Institutions Unit, in close cooperation with the OHCHR Regional Office in Southern Africa and the Rule of Law and Democracy Unit), in close cooperation with the South African Human Rights Commission (SAHRC) will organise a roundtable for NHRIs in transitional justice.

The NI Unit will invite five NHRIs (Afghanistan Independent Human Rights Commission (AIHRC); Morocco Advisory Council on Human Rights (CCDH); Northern Ireland Human Rights Commission (NIHRC); Defensoria del Pueblo de Peru (DPP); South Africa Human Rights Commission (SAHRC) to form a steering committee for the roundtable.

The steering committee will assist with both the planning and implementation of the roundtable (e.g.: preparation of key questions, organisation of working groups, etc).

OHCHR will recruit an international expert to assist with overall planning and implementation of the roundtable and draft report of the roundtable including recommendations on the tool for NHRIs on transitional justice.

A background paper on “NHRIs and Transitional Justice” will be drafted by the international expert and distributed, together with any relevant documentation, to the participants at least two weeks prior to the roundtable.

The background paper will present the relevant historical background, legal and conceptual framework as well as relevant experiences and lessons learned.

It will also outline the role played to date by NHRIs in transitional justice. Finally, the paper will provide practical recommendations for NHRIs engagement on transitional justice with the view to combating impunity and ensuring the respect for the rule of law. The background paper and the information kit will help NHRIs participate in discussion on the following issues:

* Conceptual and legal framework on transitional justice, including overview of relevant judicial and non-judicial measures such as prosecutions, truth seeking, reparations, vetting and institutional reform;

* The complex dimension of justice (i.e. criminal versus social; retributive versus restorative, traditional) in a transitional phase;

* Relevance of the role, functions and mandate of NHRIs in the context of transitional justice;

* Experiences and lessons learned by NHRIs while promoting combating impunity in their respective countries;

* Current situation in specific countries; challenges and opportunities;

* Practical recommendations for NHRIs engagement on transitional justice with the view to combat impunity and ensure the respect for the rule of law.

The roundtable will last three working days. It will consist of opening and closing plus five working sessions organised as indicated below. A moderator will oversee each session and facilitate the discussion.

To be continued

Human Rights Commission officers threatened

The Human Rights Commission of Sri Lanka (HRCSL) Project Officer attached to the Mannar branch recently received a telephone call from a person who introduced himself as Mannar leader of the Karuna’s Group and threatened him.

The Trincomalee Branch of the Human Rights Commission of Sri Lanka (HRCSL) and the Mannar Branch, (Interim Displace Project (IDP) - under the HRCSL) have closed temporary due to several death threats and the staff had been transferred to the Anuradhapura Office, a senior authorising officer of the HRCSL said.

The HRCSL Officer also said that the HRCSL are not in a position to inform the close relative of the missing people and bring them over as requested by the unidentified caller.