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Tamil Civil Society Forum:

Summary of Recommendations for Transitional Justice Mechanisms


Oral Submissions to the Consultation Task Force on Transitional Justice
made on 05 July 2016, Sri Lanka Foundation, Colombo-07

Judicial Mechanism
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Operation Paragraph 6 of UNHRC Resolution 30/1 is not subject to consultation. Given


that the consultation process cannot come up with a single narrative/suggestion on the
matter, the standard of solution-acceptable-to-all is likely to weaken OP6. The text of the
resolution itself constitutes the framework of the TJ process. It is the details that have to
be worked out through the consultation. The larger framework itself which was arrived
at through a process of political compromise (at the UNHRC) should not be open for
amendment.

The special court should be made up of a majority of international judges appointed by


the President on the recommendation of the Office of the High Commissioner for Rights.
Preferably the GoSL should sign an agreement with the UN where such broader
arrangements could be discussed. A useful reference point is the treaty signed by the
Government of Sierra Leone with the UN in the setting up of the Sierra Leone Special
Court. The judicial panel may consist of investigating judges, trial judges and an appellate
division. All sections of the court will have to have a majority of international judges.

The office of the prosecutor should be independent to that of the AGs department. The
Chief Prosecutor has to be appointed by the President on the recommendation of the
OHCHR and a majority of prosecutors also have to be appointed adopting a similar
process.

A victim and witness protection mechanism should also be facilitated through a body
independent of the Sri Lankan security sector. The involvement of the OHCHR and
member states who voted for Resolution 30/1 should be solicited in the setting up of a
victim and witness protection office.
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A Special Statute that codifies all crimes (Articles 5 to 9) identified by the Rome Statute
of the International Criminal Court and those relating to command responsibility should
be adopted. The statute should provide for a retroactive application of the crimes.

The existence of an OMP shall not be bar to the court prosecuting enforced
disappearances.

Truth and Reconciliation Commission


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Given that the judicial mechanism can only deal with emblematic and persons in the
higher echelons of command responsibility a TRC would be an essential. However given
that the TRC is generally pitched in the current political climate as an alternative to
prosecutions we are of the opinion that until the specifics of a judicial mechanism are laid
down and the mechanism set up in a credible manner, that a TRC would not be deemed
credible.

A TRC should not provide for amnesty. Its composition should represent the plural
composition of the country and also draw from eminent personalities and experts who
have done similar work in other post-war contexts. These nominees should be
recommended by the OHCHR.

The establishment of a second chamber of the TRC with religious personalities, in our
view would be unnecessary.

The victim and witness protection system suggested previously should be utilised for the
TRC as well.

Non-recurrence
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North-East should be demilitarised. Demilitarisation is required in both a quantitative


sense (reduction of troop levels, release of BOTH private and state land) and a qualitative
sense (i.e the activities that the military is involved in). The North-East administration
should have a say in future deployment of armed forces in the NE.
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Security sector reform vetting of those involved in war crimes, CAH necessary.

A political solution along federal lines that gives the North-East political unit control over
land, education and police and important sectors of the economy

Memorialisation should be community-driven. All state-imposed memorialisation should


be dismantled in the North-East

Reparations
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Formal official apology from Government and other relevant parties to victims

A separate reparations office for the North-East (under the purview of the Northern and
Eastern Provincial Governments / North-East Government) composed of victims
representatives and civil society representatives with technical assistance from relevant
international experts should be set up. The reparations office should receive adequate
funds from the Annual Budget as well as have the ability to raise funds from foreign
sources both Governmental and Non-Governmental.

A special sub-office of the North-East Reparations office to coordinate the rehabilitation


and reintegration of ex-LTTE cadres and political prisoners who have been released on
rehabilitation or as a result of not having been found guilty.

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