A Measure of Justice: Alternatives to Pursuing Criminal Accountability for Conflict-Related Sexual Violence in Sri Lanka

Abstract

Recent research conducted in Sri Lanka has revealed that victim survivors of conflict-related sexual violence (CRSV) and their notions of justice and accountability are influenced by their lack of trust in an ineffective criminal justice process. Moreover, the fear of reprisal by State allied perpetrators deters them from accessing formal justice. The failure of a criminal justice system steeped in patriarchal, discriminatory gender insensitive procedures in which CRSV victim survivors search for justice is analyzed through a recent judgment. The case highlights that searching for accountability in the current political context is not feasible and that CRSV victim survivors must be provided with support systems and forms of relief to move on with their lives until justice and accountability can be achieved. The article argues that although criminal accountability is the ideal, alternative possibilities for justice for CRSV victim survivors in Sri Lanka need to be explored, given the Sri Lankan political context and a criminal justice process fraught with many challenges. The role of the Office for Reparations in providing reparations to CRSV victim survivors and the options of a “partial” justice are discussed.

Keywords

reparations Sri Lanka justice accountability conflict-related sexual violence access to justice

Contextualizing Conflict-Related Sexual Violence in Sri Lanka

Conflict-related sexual violence (CRSV) is rarely discussed in the mainstream. The silence that surrounds CRSV is reflective of how nations address its impact. The priority theme of CSW65, addressing the elimination of violence for achieving gender equality and the empowerment of all women and girls, presents an opportunity to bring the problem of CSRV to light. Women's groups in Sri Lanka and international organizations outside Sri Lanka have documented CRSV against women in Sri Lanka both during and after the 26-year war that ended with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 (Centre for Policy Alternatives [CPA] 2016; International Crisis Group, 2017; International Truth & Justice Project [ITJP], 2013; Minority Rights Group International, 2013; Office of the High Commissioner of Human Rights [OHCHR], 2012). Although the war ended, its impact has taken a toll on families that live in the North, East, North Central, and North-Western provinces. The Tamil minority communities living in the North and East have been the most affected by the war. While the likelihood of experiencing sexual violence for war widows living in the Northern and Eastern provinces is higher due to the culture of violence and the heavily militarized context, Sinhalese and Muslim women have also been victims of CRSV (UN Security Council [UNSC], 2021).

Forms of CRSV Documented by Women’s Organizations in Sri Lanka

Sinhalese, Tamil, and Muslim women in war-affected communities have been subjected to various forms of CRSV during and after the war. Sexual bribery (sextortion), rape, sexual assault, sexual exploitation, sexual slavery, sexual threats, sexual humiliation, and sexual harassment have been documented by several women's organizations (FOKUS WOMEN, 2016a, 2016b; The Women & Media Collective, 2017; Women’s Action Network, 2016). A Sinhalese woman from a border village in the North Central province stated that women living in the displaced camps during the war suffered sexual violence by their family members and others, and that these incidents also amount to sexual violence. According to her, it is irrelevant whether the perpetrator was affiliated with the State or not, and if a woman was subjected to sexual violence during the conflict; such violations should fall under the definition of CRSV. Where the State does not take action to ensure that sexual violence does not take place in displaced camps, the State must be held accountable for such omissions. During the war, Tamil girls in the North and East, and Sinhalese girls under the age of 18 in border villages of the North Central province were given in marriage by their parents, due to economic hardship and other challenges. Many teenage pregnancies occurred as a result (Woman Participant, personal communication, August 24, 2020). Although underage marriages or early cohabitation take place in other parts of Sri Lanka, interviews with cohabiting partners revealed the links their cohabitation had with the conflict and its aftermath (Centre for Equality & Justice [CEJ], 2018c). With the breakdown of family structures, many teenage Sinhalese and Tamil girls in the North, East, and North Central provinces lived or cohabited with their partners resulting in de facto “child marriages” (CEJ, 2019a). Heavy militarization in war-affected districts and fear of sexual violence by the security forces were additional drivers of early cohabitation or “child marriage,” where parents of young girls encouraged these unions. A case of CRSV directly linked to the war occurred when a girl under the age of 16 had cohabited with an army officer who had been charged with statutory rape (CEJ, 2019a).

Sexual Bribery

Sexual bribery of Tamil and Muslim women has been documented from the war-affected districts. Public officials, including the military and police, demand sexual favors from war-affected in exchange for services (CEJ, 2018a, 2018d; FOKUS WOMEN, 2015a, 2015c, 2016a); Sinhalese military widows have also fallen prey to security forces and law enforcement officers who demanded sexual favors in return for their services (CEJ, 2018a). Although sexual bribes are solicited even in nonconflict contexts, in these cases, military widows were asked for sexual bribes by officers attached to military camps when the women approached them to gather information or documentation related to the death of their spouse (CEJ, 2018c). A recent study documented the experiences of 10 war-affected Muslim women who had been asked for sexual favors in exchange for public services. These incidents occurred when they lodged complaints at the police station, when applying for government employment, and when approaching government officials. All the perpetrators were agents of the State. According to these Muslim women, law enforcement officers were the worst predators (CEJ, 2018d). The State must acknowledge these violations and provide avenues for redress through the courts or, alternatively, provide reparations for harms caused.

Access to Justice for CRSV Victim Survivors in Sri Lanka

This article discusses the challenges of accessing justice for CRSV victim survivors in Sri Lanka and uses multiple sources of data to highlight the problem and provide interim solutions. Data used for this article include: (i) available literature on this topic including international reports, legal cases, and media reports; (ii) legal materials and media reports related to the Vishwamadu case; (iii) workshop reports and other documents held at the Center for Equality & Justice (CEJ). CEJ works on transitional justice and reparation issues. They conduct workshops for war-affected community women and CRSV women victim survivors to educate them about addressing the wrongs they have faced and how they can access reparations. These workshops also include first-hand information from the women about the resources they need and the challenges faced in seeking reparations. These workshops are documented as reports held on file by CEJ and are not made publicly available as they contain sensitive information. The article argues that these alternative forms of justice must be pursued so that CRSV victim survivors are able to move on with their lives until justice and accountability are real possibilities. It suggests that the Office for Reparations (OfR) must play a critical role in providing reparations to sexual violence survivors until full justice is served.

The delivery of justice and accountability for CRSV women victim survivors and addressing their urgent socioeconomic needs are not mutually exclusive tasks. To access the criminal justice process in search of accountability and justice, women CRSV victim survivors require various forms of support including legal, psychological, professional counseling, and most importantly, the guarantee of protection from the perpetrator (Gomez, 2017). Without these needs being addressed, the victim survivor would be unable to face the challenges that obstruct her path to justice. Globally, very few perpetrators have been brought to justice or held accountable, and CRSV victim survivors have rarely received reparations through the justice system (Lonsway & Archambault, 2012; Spohn & Tellis, 2012). Apart from holding perpetrators criminally accountable, justice for women affected by CRSV can take many forms. “How often do survivors have the genuine agency to make informed, independent choices about what form of justice they want? How often do they have the agency to drive and shape justice outcomes?” (Elliott, 2019, p. 11). Victim survivors in Sri Lanka are unable to voice their notions of justice in a context of increased militarization and surveillance by the State and have no agency in a context that crushes dissent. The needs of CRSV victim survivors are very different from others that have been affected by war, violence, and other human rights violations. This is highlighted in documented cases where CRSV women victim survivors said they wish to be in a position to get married so they can start a new life and leave the past behind (CEJ, 2018c). CRSV victim survivors do not wish to pursue legal remedies due to continued disenchantment with the State, fear of reprisals and intimidation from perpetrators, stigma, delays in court processes, and State allied perpetrators rarely being held accountable. Ineffective witness and victim protection processes are an added challenge (Institute for International Criminal Investigations & REDRESS, 2018). Tamil-speaking women cannot access Tamil-speaking officials in the criminal justice process (Gomez, 2017; FOKUS WOMEN, 2016c). In a study that interviewed 54 CRSV victim survivors, only 22 of them had attempted to access justice by approaching law enforcement or the courts (CEJ, 2018c). Some victim survivors who received justice opined that perpetrators being held criminally accountable was not an end-all solution.¹ Victim survivors were rarely satisfied by successful prosecutions in cases of sexual violence and the final outcome of the justice process (CEJ, 2018c). The pandemic added another layer of injustice to the attainment of justice. The overall functioning of the courts, the criminal justice process, and accountability mechanisms either ceased or slowed down (UNSC, 2021). CRSV does not occur in a vacuum. Wider security factors also exacerbated the consequences of COVID-19 and contributed to the climate of impunity. Where presidential pardons have been given for political associates and military officers sentenced to death by a court of law for murder, the incentive to pursue sexual violence cases in the courts is understandably low (AI, 2020b).²

Accountability Denied: The “Vishwamadu” Case ( Attorney General [AG] v. Pandith Gedhara Shantha Subasinghe )

A justice process fraught with many challenges for women who have experienced CRSV is witnessed in the trajectory and final judgment in the Vishwamadu case. The case dealt with the gang rape of a woman by four members of the Sri Lankan Army in Vishwamadu in the North of the country.³ The rape of the 28-year-old married Tamil woman occurred in June 2009, almost a month after the 26-year civil war ended in the military defeat of the LTTE. The woman had been living in a temporary shelter when the violation occurred. This is one of a handful of CRSV cases where a woman accessed formal justice and the case was argued to completion in the Sri Lankan courts ( Somaratne Rajapakse Others v. AG, 2010 ; Sooka, 2014; Yogalingam Vijitha v. AG, 2001 ).⁴

A woman who was with her at the time was able to escape attempted rape by the soldiers as she had indicated that she was menstruating. The High Court Judge opined that “she had been saved due to her period” and that the soldiers had not raped her due to this fact (AG v. Pandith Gedhara Shantha Subasinghe, pp.254–255). The judge was of the view that “the evidence given by the prosecution witnesses can be accepted beyond reasonable doubt. They had spoken the truth” ( AG v. Pandith Gedhara Shantha Subasinghe , p. 236). The judge stated that the acts of the soldiers had brought disrepute on and had tarnished the image of the Sri Lankan Army and held the four soldiers guilty of the offense of rape ( AG v. Pandith Gedhara Shantha Subasinghe , pp. 255–256). The need for corroboration of the evidence of the prosecutrix was emphasized in the High Court case. The judge stated that “If a case is based on the evidence of a prosecutrix as corroboration, it would not be illegal on that sole ground. However, in the case of a grown up and married woman, it is always safe to insist on such corroboration” ( AG v. Pandith Gedhara Shantha Subasinghe , p. 180). Corroboration is no longer a prerequisite to proving the offense of rape under the Penal Code in Sri Lanka. However, judges often insist on corroboration in sexual offenses. The Court of Appeal reiterated the need for corroboration and stated that it was not “safe to act on the evidence available” ( Subasinghe v. The Hon. AG, 2019 ).

The trivializing of the rape is highlighted in the plea of the defense counsel who argued on behalf of three soldiers that a lenient sentence should be considered because two soldiers were married and had children and the third was a “bachelor” who looked after his parents ( AG v. Pandith Gedhara Shantha Subasinghe , p. 262). The Counsel requested the High Court Judge to “consider the plight of the families of the accused on compassionate grounds” and thereby impose a minimum sentence ( AG v. Pandith Gedhara Shantha Subasinghe , p. 262). The four accused were convicted and sentenced to 30 years. The trivialization of sexual offenses by the legal profession in case law has been documented (Lawyers for Human Rights & Development [LHRD], 2012).⁵ The soldiers appealed against the order of the High Court, and the Court of Appeal gave its decision on October 10, 2019. The Court reversed the convictions on a technicality ( AG v. Pandith Gedhara Shantha Subasinghe ). According to the Court, the accused were not properly identified and all four accused had been shown to the witnesses at the police station prior to the identification parade. The Court opined that the trial judge had not considered the “infirmities” of the identification. The Court held that it was unsafe to sustain the conviction based on the available evidence and acquitted the four accused.

Successful prosecutions of CRSV cases in other contexts have resulted in the provision of reparations by the court to women victim survivors. The 2016 Guatemalan Sepur Zarco case, where two military men were convicted of sexual slavery for the rape of 15 indigenous women, was the first time in history that a national court prosecuted the offense of sexual slavery during conflict using both national and international criminal laws (UN Women, 2018). The victim survivors got justice 30 years after the offense was committed. Wide-ranging reparation measures were ordered by the court to the women and their communities that included the setting up of a mobile health center and the opening of a new secondary school (UN Women, 2018). The judgment also called for a monument dedicated to women's access to justice to be built in Sepur Zarco. Judicial reparations were implemented so that the CRSV women victim survivors could receive justice through the convictions. Judicial reparation for CRSV awarded in this case is a far cry from the judgment in the Vishwamadu case where justice was ultimately not served. The stigma, isolation by family members, and the continued trauma the victim faced are echoed by a representative of the victim survivor:

If you take the victim of the Vishwamadu case, she was raped by the military personnel only once, but she is being raped by society every day. Society didn’t support her. Her family didn’t support her. Her husband nor her children supported her. She is continuously being traumatised. A Tamil politician’s assistant told me that they are the ones who are conducting the Vishwamadu case. The case was being moved to the High Court at that time. He thought the case failed in the Kilinochchi court. He said, “Do you know why it failed? Because she was already a prostitute.” This is how the society reacts to a victim of sexual violence and this will retraumatise the victim (CEJ, 2018c).

Sri Lanka’s CRSV Legal Framework

Sri Lanka lacks both a legal definition and a legal framework to prosecute cases of CRSV (CPA, 2016). Under the prevailing legal framework, the Penal Code provisions on general rape can be used to prosecute CRSV (Penal Code (Amendment) Act No.22 1995, section 364). However, CRSV cases need to be dealt with under a legal framework that metes out higher penalties for the offenders. Much reform is needed to address this lacuna in the legal system. Additionally, the legal framework should not delay such cases, they should provide for the privacy of proceedings by using separate chambers to hear such cases and assign support staff to provide counseling and psychosocial services to victim survivors. A separate law on CRSV would also recognize CRSV as an egregious form of sexual and gender-based violence and address the power dynamic between victim survivors and those wielding power that allows for such exploitation and abuse. The regular laws on rape do not adequately hold such perpetrators accountable. Defining CRSV in the law would acknowledge the gravity of the acts that took place (Woman Participant, August 24, 2020). Standard operating procedures and guidelines to be followed by actors in the criminal justice process are required to ensure a gender-sensitive and victim-focused approach. The lack of an adequate legal framework deters CRSV victim survivors from accessing criminal justice systems for their victimization. Reforms that address issues such as the lack of gender-sensitive personnel in the criminal justice process; lack of training for these personnel; and a lack of knowledge of CRSV and its consequences due to a deeply patriarchal culture embedded within the justice system are required to change the culture and encourage sexual violence survivors to approach the criminal justice system to seek justice.

An Alternative Justice?

Alternative forms of justice should be seen as complementary to pursuing criminal accountability (Elliott, 2019). Such forms of justice would be more broad-based and involve truth-seeking, reforms, and different types of reparations. Elliot argues, “[T]hese forms of justice can be much more survivor-centric or even survivor-initiated, as their focus, objective and standard of proof shifts away from establishing an accused's individual criminal responsibility beyond reasonable doubt” (p. 13). These alternative forms of justice can be considered by CRSV victim survivors if a well-administered reparations program and a truth-telling process are in place. Institutional reform processes are slow in Sri Lanka and most often are not initiated nor implemented. Reparative justice does not require a high criminal standard of proof to receive reparations. Muddell and Hawkins (2018) argue that reparations are an important form of justice, as accessing criminal justice in times of transition is fraught with many challenges, including lack of independence and poor functioning. These challenges are exacerbated in authoritarian and militarized contexts (p. 11). Patriarchal attitudes and cultural taboos contribute to further discrimination against women in their search for justice. Deep-rooted gender discrimination also influences the insensitive behavior of actors in the administration of justice, is a further challenge to reporting sexual violence, and revictimizes CRSV survivors (ABColombia, 2013).

Reparations can also account for the “before,” “during,” and “after” of the harm (Aolain et al., 2015, p. 108). Formal justice processes do not always take into consideration the past, present, and future circumstances of the victim survivor. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation emphasizes that States are responsible to ensure “equal and effective access to justice” for victims of violations of international human rights law (UN General Assembly [UNGA], 2006). This includes “adequate, effective and prompt reparation for harm suffered” (UNGA , 2006). Remedies must be available for CRSV victim survivors. Moreover, the need for acknowledgment by the State for harms caused by sexual violence of CRSV victim survivors is echoed in victim narratives (Aolain et al., 2015).

The OfR—Possibilities for “Partial” Justice

The OfR was established by statute in Sri Lanka in October 2018 in keeping with the UN Human Rights Council Resolution (HRC) 30/1 (UNGA, 2015). The HRC Resolution sought to bring in measures to deal with the past after the 26-year armed conflict. These measures included the establishment of a Truth Commission, an Office on Missing Persons (OMP), and the OfR. The Sri Lankan government also committed to ensuring that violations of international human rights law would be prosecuted through the establishment of a Special Court.

The Mandate of the OfR

The express use of the term “sexual violence” in the OfR Act is welcome.⁶ The Act states that "the objectives of the Act shall be to facilitate and implement such policies on reparations as approved by the Cabinet of Ministers by the OfR, including specialized policies on public education, memorialization and on children, youth, women and victims of sexual violence (emphasis added) and persons with disabilities” (section 2(b)).⁷ This wording implicitly recognizes that victims of sexual violence may seek reparations under the Act and strengthens the case for women victim survivors of CRSV that seek to access the OfR.

The OfR Act covers all genders by its inclusive definition of “an aggrieved person” (section 27). The relatives of a deceased person may also apply for reparations (section 27(b)). The OfR may also receive applications for reparations from representatives of aggrieved persons (section 11(1)(b)). CRSV woman victim survivor representatives can approach the Office on their behalf to seek reparations. Several provisions in the Act enable the OfR to give reparations to aggrieved persons. These powers include the formulation of gender- and child-responsive policies that will be followed by its staff (section 11(1)(f)) to provide urgent reparations (section 11(1)(g)(iv)) and to award financial compensation (section 11(1)(g)(iii)). The provisions also provide for different forms of reparative relief that can be provided to aggrieved persons such as health services, psychosocial support, educational and vocational training programs, and rehabilitation (section 11(1)(o)). The OfR Act provides for individual and collective forms of reparations. Monetary payments, microfinance, educational and other skills development programs, psychosocial services, and restitution of land are laid down in the Act as forms of individual reparations (section 27). In addition to compensation for collective reparations, means of remembrance, educational and other skills, and community development programs are included in the Act (section 27).

As of August 2021, the OfR has a backlog of over 11,500 cases filed by aggrieved persons affected by the war (Staff member of the OfR, personal communication, August 17, 2021). These cases include those inherited from the former Authority that was replaced by the OfR. The delays caused by the pandemic contributed to the large case load due to reduced staff presence (Staff member, personal communication, 2021). The applications are for compensation for death, injury, and loss of property.

Administrative Reparations and CRSV

Pursuing administrative reparations or an out-of-court process is an option available for CRSV women victim survivors in Sri Lanka. Administrative reparations are a means of addressing the harms caused to victim survivors of human rights violations. They also have the potential to be more inclusive and accessible than court processes, reach more CRSV victim survivors, have more flexible procedures and evidentiary standards, and the costs are considerably lower than accessing the courts (UN, 2014). Seeking administrative reparations does not preclude CRSV victim survivors from accessing judicial reparations if a judicial remedy and perpetrator accountability are important to a victim survivor. However, court-based reparations are dependent on the conviction of the perpetrator and thus decrease the possibility of receiving holistic reparations (Elliott, 2019). Reparations through the OfR are an option for CRSV victim survivors in Sri Lanka that address their immediate needs.

Victim survivor-centric justice provided by the State can address the multifold consequences of sexual violence such as trauma, stigma, financial constraints, lack of medical support services, loss of family members, land and property, and other violations of socio-economic rights. This will ensure that the immediate needs of CRSV survivors seeking justice are met. A recent study that documented 25 cases of women's need for reparations revealed that women's narratives of multiple human rights violations suffered included sexual violence (CEJ, 2020). Survivor-centric justice also necessarily entails the survivor's participation in seeking solutions and in establishing well-crafted support structures. These measures facilitate a CRSV victim survivor's quest for justice, whether it be reparations from the OfR or seeking criminal prosecution.

CRSV violations have been documented during and after the war, although few victim survivors have accessed the courts (IICI & REDRESS, 2018; International Crisis Group, 2017; Sooka, 2014). CRSV women victim survivors of the Janatha Vimukthi Peramuna insurgencies of the 1970s and 1990s and those affected by “political unrest or civil disturbances” are also eligible for reparations under the Act (section 27(a)(ii)). The OfR has a duty to be proactive and provide reparations that are victim survivor-centered and holistic. The Act includes “persons that have suffered damage as a result of loss of life or damage to their person or property” (section 27(a)). CRSV victim survivors have suffered “damage” to their person and should be able to apply to the OfR for reparations. However, it is clear that the OfR has not provided reparations to sexual violence victim survivors in the past (Staff member, 2021). Reparations for sexual violence survivors are not considered a priority by the OfR given its sensitive nature because of the involvement of State allied perpetrators. Further, CRSV may not be highlighted by women victim survivors when seeking reparations for other multiple violations due to the stigma and fear of retaliation from perpetrators.

Psychosocial Services and the OfR

Training on case management of psychosocial services under a planned project has commenced through the OfR with selected local-level government officers based in the Divisional Secretariats in the Kilinochchi (North), Kurunegala (North Western), Matara (South), and Batticaloa and Ampara (East) districts (Staff member, 2021). The selection of districts has been based on those most affected by the war, the Sinhala JVP insurrections, and the district with the highest number of Sinhalese military widows in the country. In a context where the need for counseling and psychosocial services is critical and as urgent as the need for justice and accountability for CRSV victim survivors, the training of local-level officers in case management provides a window of opportunity to at least address the critical and immediate mental health needs of CRSV victim survivors (FOKUS WOMEN, 2016a). The OfR staff member mentioned that a pilot project would be implemented in selected districts to cater to the psychosocial needs of communities, with a focus on women (personal communication, 2021). Female-headed households and the disabled have been included as a priority group. However, the proposed case management project and psychosocial services in the selected districts are likely to experience further delays due to pandemic-related restrictions. The provision of psychosocial care to CRSV victim survivors, especially for posttraumatic stress disorder and depression, is a critical need. “Despite the trauma and stigma that is recounted by the victim survivors, at least some nurture aspirations of hope, justice and continue to experience a sense of empowerment” (CEJ, 2018b). The psychosocial services pilot project, if well implemented, will provide an opportunity for trained case managers to collect data on incidents of CRSV and to refer victim survivors for psychosocial and counseling services.

Cases of CRSV violations have not been received by the OfR (OfR Consultant, personal communication, August 18, 2021). Moreover, local government officers based at a divisional level who have been entrusted with the task of facilitating reparations have not received any applications for reparations by CRSV victim survivors (OfR Consultant, personal communication, 2021). Raising awareness among grassroots communities on the role and functions of the OfR would encourage more women, including CRSV victim survivors, to approach the OfR and DS offices for reparations. Women in grassroots communities are unaware of the mandate of the OfR as reflected in questions raised by community women on whether the OfR is a public office, what the role and duties of the OfR are, and why OfR staff at the divisional level do not visit affected villages (Woman participant, personal communication, 2020).

Challenges in Accessing Reparations

CRSV victim survivors are eligible to receive the broad spectrum of reparation measures laid down in the OfR Act. However, due to uncertainty as to whether the OfR will entertain such complaints, lack of support to access the office, lack of trust, and credibility of such institutions would deter these women from accessing the OfR. The OfR staff also lacks capacity.⁸ The track record of such institutions that have rarely provided relief for victims of conflict and other forms of violence is another factor (OMP, 2020, p. 19).⁹ The broad mandate given to the OfR has not been operationalized, and compensation is the most common form of reparation provided to victims of the conflict and of the Easter bombings that took place in April 2019 (Office for Reparations Sri Lanka, n.d.). Immediate needs of CRSV victim survivors should be prioritized by the OfR.

Recommendations for Improved Service Provision by the OfR

The establishment of the OfR provides a window of opportunity. Despite the OfR being underfunded and dependent on the Parliament for its funds, the OfR will be able to implement the policy approved by Parliament as soon as it is gazetted (section 22(4)). However, creatively interpreting the policy in a manner that ensures that the implementation process adopts a survivor-centric approach would be at the discretion of the OfR. Moreover, the OfR reaching out to CRSV victim survivors through the provision of compensation, psychosocial services, counseling, livelihood support, and other forms of reparation remains a possibility. Women CRSV victim survivors have suffered multiple violations of their rights in addition to sexual violence (CEJ, 2020). Providing reparations for the sum of the violations suffered is a possibility to ensure that CRSV victim survivors receive adequate reparations. Providing reparations for CRSV victim survivors requires gender-sensitive staff equipped with relevant knowledge and understanding of the impact of CRSV on a woman victim survivor.

Not all CRSV victim survivors want to seek justice through the criminal justice process. In most cases, as reflected in the Vishwamadu case, the criminal justice system fails the victim survivor. Structural discrimination remains the main impediment to the lack of redress for CRSV women victim survivors.

A women's organization in Colombo that documented 25 narratives of Sinhalese, Tamil, and Muslim women's needs for reparations found that a majority of the cases were for loss of family members and loss of lands, livelihoods, and educational opportunities due to the war and the political violence in the 1970s and 1980s. The cases revealed that women experienced sexual violence during their searches for missing and disappeared family members at the hands of the military, law enforcement, and insurgents (CEJ, 2020). A possible option for the OfR is to examine cases of CRSV as part of the violations the women experienced. With the current political climate not conducive to these women, the OfR could provide reparations to women who have suffered socio-economic rights violations, taking into account the sexual violence. For instance, the computation of compensation can take sexual violations into consideration. Admittedly not the best option, it is still a means for the OfR to provide some form of reparations to CRSV victim survivors.

The fate of the OfR hangs in the balance. Sri Lanka withdrew from the UNHRC 30/1 Resolution in late February 2021 (Amnesty International [AI], 2020a). With government-imposed restrictions and intermittent lockdowns due to the COVID-19 pandemic, the OfR reduced staff in the office and halted the training of its staff in the Divisional Secretariat offices (Staff member, personal communication, 2021). A recent media item stated that the government released 79 million Sri Lankan rupees to the OfR in June 2021 to settle 1,230 processed claims for reparation, and an additional sum of 80 million Sri Lanka rupees was released on June 29, 2021, to settle a further 1,451 processed claims, out of a total of 3,389 processed claims (Foreign Ministry, 2021). With the recent appointment of a former military officer as a commissioner of the OfR, the OfR's credibility is further eroded (ITJP, 2021). The OfR commissioners need to play a proactive role in fulfilling the OfR's mandate. The possibility of providing reparations to CRSV victim survivors in the foreseeable future is bleak unless the OfR is creative and unorthodox in processing claims by CRSV victim survivors. The nonstate sector must consistently pressure the OfR to provide different types of reparations and also facilitate CRSV victim survivors’ access to the OfR by providing financial and other forms of support. The nonstate sector can also play a role in raising awareness among affected communities on the mandate of the OfR and the possibility of seeking reparations. Moreover, a strong lobby by the nonstate sector on the imperative need for suitable commissioners to be appointed to the OfR is critical to ensure the sustainability and credibility of the OfR in the eyes of CRSV victim survivors and others who wish to access reparations.

Until “Full” Justice is Delivered

Sri Lanka needs to prioritize responses to CRSV women victim survivors, especially during the pandemic through the provision of interim reparations. The OfR must provide, at a minimum, psychosocial assistance and professional counseling services that address the continuing stigma and victim survirors' mental health. Compensation in the form of a lump sum or a monthly payment should also be mandatorily provided. The impact of the pandemic adds another layer of injustice and exacerbates the vulnerabilities of CRSV women victim survivors. A reparations program envisioned by the State must tackle the gamut of violations and harms suffered by victim survivors. An effective reparations program reflects the State's acknowledgment that violations have occurred and “repair” is a critical and urgent need. This is especially true of victim survivors of CRSV that have not been granted any form of reparations by the State. The Sepur Zarco case is an example in which transformative and comprehensive reparations were given to victim survivors of CRSV and justice was served through the legal system. Until perpetrators can be held fully accountable, reparations that serve to comprehensively address the harms and violations CRSV victim survivors have endured may help provide some relief to the victims. Implementation of a comprehensive and victim survivor-centered reparations policy must consider prospective loss, such as loss of family life, employment opportunities, continuing stigma, and its resultant impact on the mental health of a CRSV victim survivor. A reparations program can be more holistic than judicial reparations that may not take into account the entire gamut of violations and prospective losses of a victim survivor. “Partial” justice in the form of reparations does not compensate for sexual violence. However, a comprehensive and holistic reparations program will at least address the victim survivors’ immediate needs until justice is delivered.

The removal of barriers in accessing and attaining justice for CRSV victim survivors must remain a priority for women's groups that document such violations and provide critical psychosocial and other support services to victim survivors. Accountability is the ultimate goal. Until this end is achieved, women's groups must continue to support CRSV victim survivors through counseling, psychosocial, and legal support. The words of a woman human rights defender working in the Eastern district affected by the conflict reflect the realities of women CRSV victim survivors in Sri Lanka and their need for justice:

I am from Ampara. I worked with a woman gang-raped by the military. Our organization provided counselling and support, but she was unable to make a complaint to the police because that would have been the end. Even within society, she was affected psychologically. There should be protection from society and from the perpetrators. It is society that made her suffer mentally, and she committed suicide. We need an immediate solution, otherwise it is women who are constantly re-victimized. I don’t think any woman wants reparations—first, society needs to acknowledge her. She must get justice. After that only she can get reparations. What is the mechanism we have to provide redress to these women (CEJ, 2019b)?

Conclusion

Davies and True (2017) argue that the Consultation Taskforce on Reconciliation Mechanisms’ Interim Report on the Office of the Missing Persons Bill and Issues Concerning the Missing, the Disappeared and the Surrendered Report (2016) speaks of four types of justice: reparative justice, economic justice, gender security, and participatory justice, and suggest that giving equal weight to these different forms of justice is an alternative context-specific understanding of justice in Sri Lanka. They also argue that by using this approach, prosecuting perpetrators for crimes against humanity and war crimes is low (Davies & True, 2017). This is the tradeoff and a likely option for Sri Lanka, given the innumerable challenges in seeking criminal justice through the courts. Since the likelihood of etting up a court in keeping with the Human Rights Council resolution 30/1 has now dimmed, these forms of “alternative” justice must be considered by civil society and victim survivors of CRSV to deal with the current realities faced by victim survivors. An effective justice is a justice that resonates with victim survivors.

It is “imperative” that sexual violations committed during armed conflict are prosecuted at the national level (McDougall, 2020). Very few national courts are willing or able to provide accountability to CRSV victim survivors for a multitude of reasons, political or otherwise (McDougall, 2020). Accountability through the courts needs the support of a State entity. In Sri Lanka, this type of support--for instance, through legal and procedural reforms--is very unlikely given the perpetrators’ affiliations with the State. The need for surviving the harsh realities of the war trumps the need for justice for women victim survivors. The lack of faith in the criminal justice system is voiced by a victim survivor: “More than accountability I was worried for my life and my children's lives” (CEJ, 2018c). The sheer magnitude of the sexual violence is shared:

Nobody takes what happened to me seriously because they used to do this to women before killing. When they destroyed the entire village, I couldn’t talk of justice for what happened to me. We lost so much more, but got only 40,000 as compensation. (CEJ, 2018c)

A women-centered approach to justice that places women at the core is required to ensure that women can access some form of justice. According to Davies and True (2017), “an economic reparative approach may be the only option available and is as essential as a justice reparative approach for the recognition and realization of the full range of women's needs and capacities in post-conflict societies, and for the non-recurrence of violence” (p. 13). Reparations is a “halfway house.” However, reparations may provide CRSV women victim survivors with basic needs to deal with the losses and harms they endured and continue to endure. Reparations in the interim until accountability is reachable is an option that women CRSV victim survivors in Sri Lanka may need to settle for—a fall from an ideal option, albeit possibly the only option at this juncture.

Footnotes

Acknowledgments

I would like to acknowledge the Sinhalese, Tamil, and Muslim women affected by the war with whom the Centre for Equality and Justice (CEJ) has worked for many years. Their courage is humbling to those of us who work in this sector. I also wish to thank my core team at CEJ—Uthpala Madurasinghe, Kamaleswary Letchumanan, and Ando Anthappan--for their support. They have weathered the storm with me.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

Shyamala Gomez is the Founder and Executive Director of the Centre for Equality and Justice, a not-for-profit women's organization based in Colombo, Sri Lanka. She is a human rights lawyer and has over 25 years experience as an academic, researcher, and activist. She has written and published in the areas of violence against women, masculinities, sexual violence in conflict, migrant workers’ rights, women's land rights, reproductive rights, and on women, peace, and security. Over the past six years, she has researched extensively on CRSV and transitional justice with a focus on reparations in Sri Lanka. Ms. Gomez taught law at the Faculty of Law, University of Colombo from 1994 to 2003 and was also the Gender Advisor to the United Nations Office of the Resident Coordinator in Colombo from 2006 to 2011. A Fulbright Scholar, she has an LLB from the University of Colombo and a Master's in Law from Georgetown University, Washington, DC. She was also a Visiting Researcher at Harvard Law School, Harvard University, Cambridge, MA, USA in 2001–2002.

References

ABColombia. (2013). Colombia: Women, conflict-related sexual violence and the peace process . https://reliefweb.int/sites/reliefweb.int/files/resources/ABColombia_Conflict_related_sexual_violence_report.pdf

Amnesty International. (2020a, February 27). Sri Lanka: Withdrawal from UN commitments requires robust response by Human Rights Council. Retrieved from 30th September 2021 https://www.amnesty.org/en/latest/news/2020/02/sri-lanka-withdrawal-from-un-commitments-requires-robust-response-by-human-rights-council/

Amnesty International. (2020b, March 26). Justice reversed for victims of the Mirusuvil massacre, Sri Lanka . https://www.amnesty.org/en/latest/news/2020/03/justice-reversed-for-victims-of-the-mirusuvil-massacre-from-sri-lanka/

Aolain

O’Rourke

Swaine

(2015). Transforming reparations for conflict-related sexual violence: Principles and practice. Harvard Human Rights Journal, 28, 97–146. https://harvardhrj.com/wp-content/uploads/sites/14/2009/09/transforming-reparations-for-conflict-related-sexual-violence-principles-and-practice.pdf

Attorney General v. Pandith Gedhara Shantha Subasinghe, Case No. HCJ/1569/12. (FR). (English translation of Tamil judgment).

Centre for Equality and Justice. (2018a). Workshop report: Sexual bribery of military widows in Sri Lanka: Anuradhapura, Kurunegala, and Galle districts .

Centre for Equality and Justice. (2018b). Workshop report: The social scar: Stigma arising from conflict related sexual violence in Sri Lanka .

Centre for Equality and Justice. (2018c). Workshop report: Life I used to live: Realizing reparations for victim survivors of sexual violence in Sri Lanka .

Centre for Equality and Justice. (2018d). Workshop report: Shrouded in secrecy: Sexual bribery of Muslim women in post war districts .

10.

Centre for Equality and Justice. (2019a). Workshop report: Lost childhoods in war: Child marriage or early cohabitation in war affected districts of Sri Lanka .

11.

Centre for Equality and Justice. (2019b). Report of workshop on conflict-related sexual violence and reparations .

12.

Centre for Equality and Justice. (2020). Remembrance of loss: 25 case studies on women and reparations in Sri Lanka .

13.

Centre for Policy Alternatives. (2016). Accountability and reparations for victims of conflict related sexual violence in Sri Lanka . https://www.cpalanka.org/accountability-and-reparations-for-victims-of-conflict-related-sexual-violence-in-sri-lanka/

14.

Consultation Task Force on Reconciliation Mechanisms. (2016). Interim report: The Office on Missing Persons bill and issues concerning the missing, the disappeared and the surrendered . https://groundviews.org/2016/08/11/interim-report-consultation-task-force-on-reconciliation-mechanisms/

15.

Davies

S. E.

True

(2017). When there is no justice: Gendered violence and harm in post-conflict Sri Lanka. International Journal of Human Rights, 21(9), 1257–1279. https://doi.org/10.1080/13642987.2017.1360025

16.

Elliott

(2019, February 25–27). PSVI framing paper: Strengthening justice for survivors of sexual violence in conflict. (Pre-conference reading). Sexual violence in conflict: Delivering justice for survivors and holding perpetrators to account, Wilton Park, United Kingdom.

17.

FOKUS WOMEN. (2015a). A report on the status of female heads of households and their access to economic, social and cultural rights: Anuradhapura district.

18.

FOKUS WOMEN. (2015b). A study on the status of female heads of households and their access to economic, social and cultural rights: Ampara district.

19.

FOKUS WOMEN. (2015c). Survey on the status of Muslim female heads of households and their access to economic, social and cultural rights: Puttalam district.

20.

FOKUS WOMEN. (2016a). Sexual exploitation of female heads of households affected by war in the north of Sri Lanka.

21.

FOKUS WOMEN. (2016b). Shadow report to the United Nations Committee on the Elimination of Discrimination Against Women (66^th session: February–March 2017). CEDAW.

22.

FOKUS WOMEN. (2016c). Whither justice? The language barrier in accessing the criminal justice system in cases of violence against female heads of households in the north and east of Sri Lanka.

23.

FOKUS WOMEN. (2015). Post war trends in child marriage in Sri Lanka. Briefing Paper.

24.

FOKUS WOMEN. (2016). Sexual exploitation of female heads of households affected by war in the north of Sri Lanka.

25.

Foreign Ministry. (2021, July 1). Sri Lanka informs EU of action to review PTA & progress in reconciliation. News Wire, https://www.newswire.lk/2021/07/01/sri-lanka-informs-eu-of-action-to-review-pta-progress-in-reconciliation/

26.

Gomez

(2017). Post-war Sri Lanka: Specific needs of sexual violence victim survivors and children born of rape. UN Women.

27.

Guidance Note of the Secretary-General. (2014, June). Reparations for conflict-related sexual violence. United Nations.

28.

Institute for International Criminal Investigations & REDRESS. (2018). Supplement to the international protocol on the documentation and investigation of sexual violence in conflict: Sri Lanka specific guidelines for practitioners. https://redress.org/publication/supplement-to-the-international-protocol-on-the-documentation-and-investigation-of-sexual-violence-in-conflict-sri-lanka-specific-guidance-for-practitioners/

29.

International Crisis Group. (2017, July 28). Sri Lanka’s conflict-affected women: Dealing with the legacy of war.

30.

International Truth and Justice Project. (2013). Press release: Silenced: Survivors of torture and sexual violence in 2015 . https://www.itjpsl.com/assets/press/ITJP-Press-Release-7-Jan-2016-on-new-report.pdf

31.

International Truth and Justice Project. (2021, June 1). Press release: New appointments in Sri Lanka torpedo what left of the transitional justice mechanisms. https://itjpsl.com/assets/Final-OMP-RO-Press-Release.pdf

32.

Lawyers for Human Rights and Development. (2012). Justice-suspended? A study on suspended sentences for sexual offenders. LHRD.

33.

Lonsway

K. A.

Archambault

(2012). The “justice gap” for sexual assault cases: Future directions for research and reform. Violence Against Women, 18(2), 145–168. https://doi.org/10.1177/107780121440017

34.

McDougall

G. J.

(2020). Update to the final report on systematic rape, sexual slavery and slavery-like practices during armed conflict. UN Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights. E/CN.4/Sub.2/2000/21.

35.

Minority Rights Group International. (2013). Living with insecurity: Marginalization and sexual violence against women in north and east Sri Lanka . https://minorityrights.org/wp-content/uploads/old-site-downloads/download-1297-Living-with-insecurity-Marginalization-and-sexual-violence-against-women-in-north-and-east-Sri-Lanka.pdf

36.

Muddell

Hawkins

(2018). Gender and transitional justice: A training module series. International Center for Transitional Justice. https://www.ictj.org/multimedia/interactive/gender-and-transitional-justice-training-module-series

37.

Office for Reparations Act No. 34. (2018). https://www.parliament.lk/uploads/acts/gbills/english/6107.pdf

38.

Office for Reparations Sri Lanka. (n.d). Compensations for the affected victims due to the civil unrest occurred in Naththandiya area after the Easter attacks . http://www.reparations.gov.lk/web/index.php?option=com_content&view=article&id=91:compensations-for-the-affected-victims-due-to-the-civil-unrest-occurred-in-naththandiya-area-after-the-easter-attack&catid=8&lang=en&Itemid=200

39.

Office of the High Commissioner of Human Rights. (November 2012). Joint Submission by the Women’s Action Network and Centre for Human Rights and Development.

40.

Office on Missing Persons. (2020). Annual report . http://www.ompsrilanka.org/missing-persons

41.

Pandith Gedhara Shantha Subasinghe v. The Hon. Attorney General , C.A. Case No. 250-252/2015, decided on (2019, October 10).

42.

Penal Code (Amendment) Act No. 22. (1995). https://www.lawnet.gov.lk/penal-code-amendment-5/

43.

Ranasinghe

. (2021, June 24). Former Sri Lanka MP and murder convict Duminda Silva out on presidential pardon. Economy Next. https://economynext.com/former-sri-lanka-mp-and-murder-convinct-duminda-silva-out-on-presidential-pardon-83320/

44.

Somaratne Rajapakse Others v. Hon. Attorney General (Krishanthi Kumaraswamy Rape Case) , 2 SLR 113 (2010).

45.

Sooka

(2014). An unfinished war: Torture and sexual violence in Sri Lanka 2009–2014. The Bar Human Rights Committee of England and Wales (BHRC) and the International Truth and Justice Project, Sri Lanka. Retrieved from 30th September 2021, https://www.srilankacampaign.org/wp-content/uploads/2015/02/An-Unfinished-War-Torture-and-Sexual-Violence-in-Sri-Lanka-2009-2014-Yasmin-Sooka-2014.pdf

46.

Spohn

Tellis

(2012). The criminal justice system’s response to sexual violence. Violence Against Women, 18(2), 169–192. https://doi.org/10.1177/10770801212440020

47.

The Women and Media Collective. (2017). Sri Lanka shadow report to the Committee on the Elimination of All Forms of Discrimination against Women submitted for the 66th session of the CEDAW Committee, Geneva, Switzerland. https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/LKA/INT_CEDAW_NGO_LKA_26306_E.pdf

48.

UN General Assembly. (2006, March 21). 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: Resolution/adopted by the General Assembly. A/RES/60/147.

49.

United Nations General Assembly. (2015). Resolution adopted by the Human Rights Council on 1 October 2015, 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka. A/HRC/RES/30/1. https://undocs.org/en/A/HRC/RES/30/1

50.

UN Security Council. (2021, March 30). Conflict related sexual violence, Report of the Secretary-General. S/2021/312. https://undocs.org/S/2021/312

51.

UN Women. (2018, October 19). Sepur Zarco case: The Guatemalan women who rose for justice in a war-torn nation . https://www.unwomen.org/en/news/stories/2018/10/feature-sepur-zarco-case

52.

Women’s Action Network. (2016). Women’s access to justice in the north and east of Sri Lanka: CEDAW shadow report submitted by women’s action network. CEDAW.

53.

Yogalingam Vijitha

. AG SC (FR) 186/2001, SC Minutes 23. http://www.janasansadaya.org/page.php?id=176&lang=en