Sunday Times 2
What is ‘reparations’ in the context of transitional justice?
View(s):By Dhara Wijayatilake, Chairperson of the Office for Reparations
It is six years since the establishment of the Office for Reparations in Sri Lanka. There is, however, no clear understanding among many as to its mandate or role within the broader context of transitional justice in a country that seeks to recover from a civil conflict, promote reconciliation and ensure non recurrence. This article seeks to clarify the concept and highlight the statutory mandate of the Office for Reparations (“OR”) established in terms of the Office for Reparations Act, No, 38 of 2018 (“the OR Act”).
Reparation is one of the measures recognised within the broader context of transitional justice, which is defined by the United Nations 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, in order to ensure accountability, serve justice and achieve reconciliation.”
According to the OR Act, those who have suffered loss arising from the armed conflict that took place in the Northern and Eastern Provinces or its aftermath are entitled to reparations
Interventions to address transitional justice challenges became necessary at the end of the North-East conflict as Sri Lanka sought to restore democratic systems and promote unity among its multi-ethnic and multi-religious peoples.
Reparations in the context of human rights and humanitarian interventions, are granted to victims of conflict who have suffered harm, to alleviate their situation which has arisen consequent to the harm suffered as a result of conflict. It is accepted that some of these violations are irreparable and nothing granted by way of reparations can restore the status quo ante of the victim.
Among the basic tenets recognised in the transitional justice regime are the following:
(a) the State obligation to investigate and prosecute alleged perpetrators of gross violations of human rights and serious violations of international humanitarian law, including sexual violence, and to punish those found guilty;
(b) the right to know the truth about past abuses and the fate of disappeared persons;
(c) the right to reparations for victims of gross violations of human rights and serious violations of international humanitarian law; and
(d) the State obligation to prevent, through different measures, the reoccurrence of such atrocities in the future.
On December 16, 2005, the United Nations General Assembly adopted Resolution 60/147 on “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.”
Each State identifies what mechanisms and interventions must be set in place to address these issues. There is no one-size-fits-all formula to determine the methodologies that must be adopted by countries. Clearly, in Sri Lanka the establishment of the Office on Missing Persons (OMP) by Act No. 14 of 2016 was to deal with component (b) above and the establishment of the OR by the Act of 2018 was to deal with component (c) above. Neither of these institutions have responsibility for (a) above. Importantly, it must be noted that there is no expectation that the OR handles law enforcement functions to investigate and prosecute alleged perpetrators. Nor is the Office on Missing Persons (OMP) vested with that responsibility given that its principal mandate as set out in the statute is to search for and trace missing persons and to protect the rights and interests of missing persons and their relatives. Investigation and prosecution of alleged human rights violations are functions to be discharged by existing law enforcement Authorities that are adequately vested with powers to do so.
The OR Act and its provisions
The OR Act came into operation on October 22, 2018 and was operationalised with effect from April 2019 with the appointment by the President of five members on the recommendation of the Constitutional Council. Its provisions went beyond merely providing for monetary relief measures. It articulated the basis for granting relief and the macro-level expectations. In its preamble it stated that the Constitution of Sri Lanka recognises the inherent dignity and the equal and inalienable human rights of all Sri Lankans and recognised the obligation of the State to respect, secure and advance these rights. It also stated that a comprehensive reparations scheme which is anchored in the rights of all Sri Lankans to an effective remedy will contribute to the promotion of reconciliation for the well-being, and security of all Sri Lankans including future generations.
There was thus an acceptance that reparations were designed to contribute to the broader objective of reconciliation. In introducing the Bill, the then Prime Minister stated that “the Office for Reparations Bill is one of those that we have proposed to ensure reconciliation in this country.”
The OR Act provides for the grant of reparations to specified categories of victims, i.e., persons who have suffered loss (i.e. personal injury, death and damage to property) arising from the armed conflict that took place in the Northern and Eastern Provinces or its aftermath, or due to political unrest or civil disturbances or due to enforced disappearances. It established a regime to deal with past and future incidents.
In pursuance of its mandate, the OR began its work by formulating its polices and guidelines after conducting stakeholder consultations in several regions of the country. The consultations revealed similar needs among the aggrieved persons, be they inhabitants in the North, East, South or West of the country and are common to the wider communities as a whole, and consequently, although some of the interventions that can be offered as reparations are those that are needed by the wider community, the increased vulnerability of the icings of conflict were identified to recognise that their needs be addressed as a priority. The policy document was laid before Parliament and can be accessed via the OR website at www.reparations.gov.lk. The policy identifies eight areas of interventions.
The COVID pandemic and staff shortages that were imposed during the economic crisis across government, impacted the work of the OR. Within these constraints OR decided to implement activities that were considered to be most meaningful to the aggrieved communities.
Monetary grants
As regards the victims of the North-East conflict, the focus was on providing interventions that empowered the people. The OR members accepted that handouts by way of monetary grants while useful to a limited extent will, however, not empower victims, but knowledge transfer and skills development programmes that will enhance capacities to undertake sustainable revenue generating activities will be meaningful. Hence, while some amount of financial grants were made, more importantly activities to provide psycho social support and support livelihood development were implemented. A psycho social support programme especially designed for the post-conflict victim community was carried out in some parts of the country with the assistance of the UN through the IOM, and livelihood development programmes were implemented, as a priority. In pursuance of its gender sensitive approach, programmes to empower women to cultivate skills that generate sustainable income generation activities were designed and implemented.
The categories of victims that received monetary relief from the OR have included victims of the North-East conflict, vicitms of the Easter Bomb Attack of 2019 and victims of the 2022 civil disturbances. Details of monetary relief granted to all categories of victims can be found on the OR website.
In January 2023, the OR was mandated by the Supreme Court to establish a Victim Fund to receive monies ordered by the Supreme Court to be paid by respondents in Fundamental Rights litigation, and to formulate a scheme for disbursements and to make grants thereform. Schemes to provide grants to families of those who died, to persons injured, to children for secondary school education support, to students for tertiary education support and to vulnerable elders, were formulated and disbursements made from the Victim Fund. All of these tasks have been handled and details can be accessed via the OR website. Reports on monies credited to the Fund and disbursements made are also periodically submitted to the Supreme Court.
The OR has completed six years since its establishment in April 2019, and while there was a period of inactivity during the COVID pandemic and staff constraints impacted its work due to the economic crisis that the country went through, all of which are common to all of government institutions, the OR has been able to complete a significant workload, including the completion of monetary grants to applicants from the North-East conflict. Details may be accessed via the website.