Contextualising victim and witness protection for transitional justice: Part I

Foreign Affairs Minister Mangala Samaraweera heading the Sri Lankan Government delegation to the UNHRC’s 34th Session addressing a side event at the Palais des Nations last week. The event was organised by the Permanent Mission of Sri Lanka to the UN in Geneva and chaired by Permanent Representative of Sri Lanka to the UN, Ambassador Ravinatha Aryasinha. Secretary General of the Secretariat for Coordinating Reconciliation Mechanisms Mano Tittawella, MP and Constitutional expert Dr. Jayampathy Wickremaratne and Ariyasinha are also present – Pic by Sunanda Deshapriya

By Medhaka Fernando, South Asia Centre for Legal Studies

Introduction 

Since the end of the war in 2009, Sri Lanka has been pushed to address issues relating to wartime accountability and reconciliation within the country. The Geneva resolution which was co-sponsored by Sri Lanka, in the year 2015, constituted the country’s first meaningful step towards truth, justice, reparations and non-recurrence. Under this resolution, Sri Lanka promised the international community as well as its own citizenry, an onwards march towards transitional justice via a Truth and Reconciliation Commission, an Office on Missing Persons, an Office for Reparations and a Special Court with a Special Counsel. 

The Office on Missing Persons Act which was brought into force in August 2016 encouragingly provides for an autonomous and seemingly self-sufficient victim and witness protection ‘Division’ to protect, support and assist victims and witnesses engaging with the Office. This is a welcome break from Sri Lanka’s past, where many Commissions of Inquiry established to investigate human rights violations and disappearances were either without any witness protection capabilities or had protection schemes which were fundamentally flawed. There is thus some reason to hope that the remaining transitional justice mechanism too would establish robust victim and witness protection units to facilitate the fulfilment of their respective mandates. 

What is victim and witness protection? 

According to the International Commission of Jurists victim and witness protection refers to measures taken to protect the safety of victims, witnesses and other persons closely associated to them from physical violence, threats of violence, intimidation, retaliation or other threatening or harassing conduct. The Council of Europe states that witness protection could take the form of ‘protection measures’ or ‘formal protection programs’. The former refers to procedural and non-procedural measures that could be taken to protect witnesses who do not meet the required threat level to enter into a formal protection program. 

Procedural safeguards such as in-camera hearings, video link testimony, expunging identifying information could be guaranteed by courts, truth commissions and disappearance commissions while law enforcement bodies could generally grant non-procedural protection such as surveillance activities, escorting the witness to work/court, lending personal alarm devices, increasing police patrols in the area where the witness lives or even offer 24-hour police protection. Where the threat level faced by an individual is extremely high, rendering such protection measures inadequate, a formal protection agreement between the victim/witness and the authorities could be concluded for the provision of all types of protection measures including identity change and relocation of the threatened victim/witness.

Generally any witness protection scheme would also engage in witness assistance measures to ensure the psychological wellbeing of victims and witnesses. Witness assistance focuses on financial, medical, material, psychological and social support of victims, witnesses and their families through governmental, voluntary and community-based means. Many of the leading witness protection schemes around the world provide for both witness protection and witness assistance measures. 

A legacy of failure 

Sri Lanka has, from time to time, attempted to deal with its chequered history of killings, abductions, disappearances and communal violence through the establishment of ad-hoc Presidential Commissions of Inquiry. Almost every Commission established to investigate human rights violations of this nature, have worked within a backdrop of general lack of political will and institutional inadequacy to carry out meaningful investigations. 

The International Independent Group of Eminent Persons (IIGEP) which was invited to the country by the President in 2007 to observe the inquiry of the Udalagama Commission also observed that the lack of an effective and credible victim and witness protection scheme in the country was a further stumbling block towards any meaningful investigation. The IIGEP noted that the Udalagama Commission’s Victim and Witness Protection Unit was hampered by the lack of trained staff, adequate funds and an inability to provide meaningful protection beyond the life of the Commission. 

Troublingly, the Commission’s Investigative Unit comprised of police officers seconded to the Commission on a full time basis. Since most of the Commission’s investigations were against State functionaries, the ability of the Commission to provide meaningful witness protection was hampered by such conflicts of interest. These flaws ultimately resulted in certain witnesses to the ACF aid workers murder of 2006 being killed or abducted, whilst other potential witnesses refused to testify before the Commission or fled the country in fear. 

Sri Lanka’s legacy of failure in this area seems to have been left unaddressed despite the enactment of the national Victim and Witness Protection Act in February 2015. Although the Act has still not been put to test, the legislative provisions themselves have a number of flaws. The National Authority for the Protection of Victims and Witnesses established under this Act has been given widespread powers to set normative standards for victim and witness protection in Sri Lanka. 

Despite the scale of this task, the Authority consists of a majority of ex-officio senior public servants and has only a minority of members who are academically/professionally qualified in witness protection or related areas. The Act also provides for a Victims of Crime and Witnesses Assistance and Protection Division, under the Inspector General of Police. The Division is not mandated to be independent from the regular police forces when providing protection. This is a fundamental flaw of the Act since consistent allegations of victim and witness intimidation have been levelled against the Sri Lankan Police in the past. 

Victim and witness protection activities within transitional justice cannot afford to go through the failures that have plagued Sri Lanka in the past. In light of this, Sri Lanka may have to rethink its strategy and amend its flawed Victim and Witness Protection Act. In addition, it may also be necessary to adopt a specialised framework to protect/assist victims and witnesses who will engage with Sri Lanka’s transitional justice mechanisms to account for the unique challenges and needs of the protection of victims and witnesses of mass scale human rights violations. 

Protecting victims and witnesses within transitional justice

Transitional justice is a participatory journey towards truth, justice and institutional reform. Therefore every successful transitional justice process needs to place victims and witnesses at its pinnacle by ensuring that the assistance, support and protection given to victims and witnesses is non-negotiable. However as mentioned above, the support and protection of victims and witnesses in transitional justice contexts brings about a number of unique considerations and challenges.

Under a human rights framework, States have an obligation to take measures for the safety of those within their jurisdiction. Besides the fulfilment of this obligation, witnesses of ordinary crimes are also usually afforded a special protection because their testimony is valuable to a judicial process. In a Transitional Justice process, witness protection is aimed at the fulfilment of additional obligations and serves wider purposes. Significantly, the Human Rights Committee in its Concluding Observations on Kosovo (2006) affirmed that witness protection mechanisms are essential for upholding a victim’s right to remedies. Moreover, victim and witness protection in a transitional justice process should be geared towards encouraging the active participation of all victims and witnesses, irrespective of the value of their testimony. In fact, the United Nations Approach to Transitional Justice (2010) emphasises the centrality of victim participation, safety and dignity within any transitional justice process. 

Secondly, victims and witnesses within transitional justice have different needs and vulnerabilities than regular witnesses of statutory or organised crimes. For instance victims and witnesses within transitional justice contexts often go through brutal, systematic and institutional forms of violence which has sometimes spanned for generations. While this could be true of victims and witnesses of ordinary/organised crimes, such a scenario is generally very rare and is the exception as opposed to the rule. Thus, when it comes to transitional justice, witness assistance measures would arguably need to be prioritised in a manner that gives it an equal level of prominence to witness security measures. Additionally, witness assistance would need to take a multidisciplinary approach by integrating psycho-social support with a keen understanding of the history and root causes of a given conflict. 

Thirdly and most importantly perhaps, violence/threats of violence against victims and witnesses within transitional justice settings often originates from State level/former State level entities – as opposed to individuals or organised private parties. The reason for this is that victims and witnesses in transitional settings often testify about past atrocities committed by State level entities. 

Furthermore, insider witnesses from State law enforcement mechanisms often testify in transitional settings, spiking the possibility of State level violence against them. In such a backdrop witness protection units within transitional settings must primarily focus on threats emanating from entities having the coercive authority of the State. This is especially relevant within Sri Lanka, where allegations of conflict related killings, torture and enforced disappearances have been levelled against law enforcement and security sector personnel. Thus victims/witnesses before the Office on Missing Persons, the future Special Court and/or Truth Commission are likely to testify against law enforcement and security sector bodies. 

Therefore it would be a mistake for Sri Lanka to blindly adopt protection models followed in countries like the United States, Canada or Australia which rely heavily on official law enforcement bodies within the country such as the US Marshals Service, the Royal Canadian Mounted Police and the Australian Federal Police, to provide witness protection. 

Conclusion

Due to the specific challenges and needs identified above, it is paramount for Sri Lanka’s future transitional justice mechanisms to establish independent and self-sufficient victim and witness protection systems within themselves, rather than rely on the flawed national witness protection system. Taking this approach would instil confidence and faith in victims and witnesses and better guarantee their active participation in Sri Lanka’s march towards truth, justice and reconciliation.