By Shlomi Yass –

Shlomi Yass

In May 2009, following three decades of Civil War between the Sri Lankan Government, and the insurgent group, the LTTE, which demanded the establishment of an independent state for the Tamil ethnic minority in northern and northeastern Sri Lanka, the group was decimated. However, as transitional justice is sought “where political relationships are abusive” (Murphy, 2021), and despite that it became essential question in Sri Lanka since the end of the Civil War — none of Sri Lanka’s eight UNHRC resolutions adopted have been implemented in full.

Transitional justice, “a subset of peacebuilding” (Quinn, 2021), is crucial to appreciate the international actions to strengthen human rights. Yet, there are variety of definitions to the term. As “there is no single theory of transitional justice, and the term does not have a fixed meaning” (Arthur, 2009), the discipline “remains tremendously undertheorized” (de Greiff, 2010). Famous measures related with transitional justice, like war crimes tribunals, are the unique Nuremberg trials of Nazi war criminals after World War Two, and President Raúl Alfonsín’ policies after the end of the military junta in Argentina. As the term evolved during the 1980s, attributable to countries with a history of human rights violations in their transition to democracy, it fulfilled a vital role in the 1990s transition from communism to democracy in Eastern Europe, and from apartheid to multicultural democracy in 1994 in South Africa (Murphy, 2021). Transitional justice became a crucial element in the UN framework, first drawn in 2004 by UN Secretary General Kofi Annan, along with its vital document, “The Rule of Law and Transitional Justice in Conflict and Post‑Conflict Societies”. 

That said, the UNHCR (2004), defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”. Teitel (2003), maintains that it is “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”. For Arthur (2009), it is “an international web of individuals and institutions whose internal coherence is held together by common concepts, practical aims, and distinctive claims for legitimacy”, and de Greiff (2010), holds that it is “the set of measures implemented in various countries to deal with the legacies of massive human rights abuses”. Murphy (2021), suggests that transitional justice is built upon ‘pillars’ such as truth, justice, reparations, nonrecurrence, and memorialization, and Palansuriya (2022), states that it is “the array of processes and mechanisms that is aimed to help a society to come to terms with the violent and painful legacy that was left behind after a Civil War”. Finally, it is significant to mention 

Gupta (2021) maintains that since 2009, all Sri Lankan administrations have manipulated their international allies to escape realizing transitional justice procedures. Yet, despite evidence of serious human rights violations, more than a decade after the end of the Civil War, “Sri Lanka’s transitional justice narrative is caught between the demands for accountability by victims and their families and the patriotism of the government in honoring the war victory and resisting Western interference” (Gajanayake, 2021). While the governments have made significant steps toward transitional justice, much is still needed. 

Transitional justice in Sri Lanka

Five months after the end of the Civil War, in a positive sign in October 2010, former President Mahinda Rajapaksa established the domestic Lessons Learnt and Reconciliation Commission (LLRC). In seeking restorative justice rather than punitive justice, the LLRC was meant to function as the former South African Truth and Reconciliation Commission (TRC), and the government turned to South Africa for help. However, while the government believed that amnesty played a key role in South Africa, according to Saravanamuttu (2022), only about 12% of South African claims granted amnesty. Ultimately, the LLRC’s conclusions were criticized, for determining that the military actually protected civilians during the final stages of the war. In October 2015, in “a watershed in the process of transitional justice” (Saravanamuttu, 2022), the new Maithripala Sirisena government (2015-2019) co-sponsored UNHRC resolution 30/1, and committed itself to “undertake a comprehensive approach to dealing with the past”. The “Good Governance” government, proposed to build four mechanisms for transitional justice: a Commission for Truth, Justice, Reconciliation and Non-Recurrence, an Office of Missing Persons, an Office for Reparations, and a judicial mechanism with a special counsel (UNHRC, 2015). 

First, the Office of Missing Persons (OMP) was launched in 2016, with more than twenty thousand claims of disappeared persons. Certificates of Absence (COA) were issued so that families of the disappeared could obtain funds. However, this was rejected by the families, given that the COA essentially meant that the missing persons are deceased, henceforth, there is no need to continue investigating (Saravanamuttu, 2022). Second, the Office for Reparations was approved in October 2018, consistent with the government’s pledge in Resolution 30/1. Although the Cabinet approval the Office for Reparations Bill, Sri Lankan civil society members maintained that the government is yet to address matters relating to the its powers and functions. Third, a Commission for Truth, Justice, Reconciliation and Non-Recurrence; namely, creating a truth commission, not much progressed has been achieved, as the Cabinet approved the legislation without publicly announcing a Bill. Forth, Judicial mechanism with a special counsel; a hybrid judicial mechanism with national and international judges, progress is at a stand-still, as many in the government withdrew their support for the UNHRC resolutions, changed their rhetoric and spoke against foreign judges and international involvement. For example, in July 2016, former President Sirisena said that “As long as I am the President of this country, I will not allow for any international courts, international judges and international organisations to interfere with the internal affairs of Sri Lanka and the judiciary” (Colombo Telegraph, 2016), while in February 2017, former President Chandrika Kumaratunga said, that there is no “necessity to have courts to probe war crimes” (Ganguly, 2017).

The UNHRC’s adoption of resolution 34/1 in March 2017 and resolution 40/1 in March 2019, were meant to give the government more time, while resolution 46/1 in March 2021 appealed again to make inquiries for alleged human rights abuses. However, these appeals have been largely overlooked. To make matters worse, former President Gotabaya Rajapaksa, elected in November 2019, declared his intention to withdraw all UNHRC resolutions, and in February 2020, Foreign Minister Dinesh Gunawardena indeed announced that Sri Lanka will withdraw from co-sponsorship of resolution 40/1, resolution 30/1, and resolution 34/1.

Discussion

As Palansuriya (2022) emphasizes that the term and measures of transitional justice in post-war Sri Lanka has repeatedly been “an antagonistic theme”, and while the overall purpose of transitional justice is to provide recognition to victims, to encourage civic trust, to endorse reconciliation, and to promote democracy, the following highlights and explores several domestic and international contributing factors relating to the lack of a fully functioning transitional justice mechanisms in Sri Lanka: the victims, public involvement, the international community, promoting democracy, and the never ending resolutions problem.

The victims: According to de Greiff (2010), “all transitional justice measures seek to provide recognition to victims”. As such, a country’s victims are a significant constituency in post-conflict communities where transitional justice measures are in question (UNHCR, 2004). However, while the idea according to Palansuriya (2022), is “to bring justice to victims”, it seems that transitional justice mechanisms that were meant to be “victim centered may have been perpetrator centered”, as exemplified in the government’s attitude toward military personnel whom “should be protected of all the allegations at all costs” (Hettige, 2020).

Public involvement: In December 2015, the government assembled a 20-member Public Representations Committee on Constitutional Reform (PRC), so as to obtain the public’s views on constitutional reforms. The PRC made inquiries and delivered its report in May 2016. However, by the end of 2016, the political push for constitutional reform have diminished considerably. In addition, the Consultative Task Force (CTF) in 2016, appeared another success, as the government appointed civil society members and academics, which in January 2017, published its roadmap for transitional justice. An entirely civil society body, the CTF performed inquiries and obtained around 7,500 claims (Saravanamuttu, 2022), and its chief recommendation was the need to create a ‘hybrid court’, with local and foreign judges to prosecute war crimes. Nevertheless, as mentioned above, many in the government endorsed majoritarian Sinhala Buddhist nationalism, and generated an agenda incompatible to transitional justice procedures (Gupta, 2021). This was further displayed in September 2017, as Sirisena rejected criminal lawsuits filed by rights groups in South America against Jayasuriya’s role as a military commander in the last months of the war, saying that “I state very clearly that I will not allow anyone in the world to touch Jagath Jayasuriya or any other military chief or any war hero in this country” (Aljazeera, 2017).

The international community: Some argue that the international community is not doing enough in terms of traditional justice in Sri Lanka. Amnesty International (2019: 4), voiced its concern, asserting that it “urges the international community” … “to continue to oversee and monitor Sri Lanka’s delivery of commitments until they are achieved in full”. Others identified the U.S.-China tensions as a factor in the international community’s difficulty in promoting transitional justice in Sri Lanka, maintaining that “additional motivation from the international community has waned as the U.S.-China compete for more influence” (Gupta, 2021). Finally, Guruparan (2021) suggested that there are “signs that the international community has been more prepared to tell itself tales of hope – sometimes on the basis of geopolitical considerations – than to make the difficult decisions required to achieve justice”. 

Promoting democracy: As transitional justice was developed where authoritarian regimes had been changed by more democratic regimes, it is natural why “democracy is a necessary feature of transitional justice” (Murphy, 2017), and that it is “significantly politicized” (Teitel, 2002). However, while transitional justice seeks to transform the political relationships, in the past decade, both former President Mahinda and Gotabaya went in the opposite direction, as they applied ethno-religious nationalist terminology to explain Sri Lanka’s distance from the West and onto China, which was promoted as an effective competitor to Western imperialism (Gupta, 2021). Consequently, Gajanayake (2021) claims that the most important question is whether or not there is enough political will and public trust for promoting transitional justice measures in Sri Lanka.

Never ending resolutions: In the case of the latest March 2021 resolution 46/1, it seems that it is just one of many resolutions adopted during the years: Resolutions 19/2 of March 2012, resolution 22/1 of March 2013, resolution 25/1 of March 2014, resolution 30/1 of October 2015, resolution 34/1 of March 2017 and resolution 40/1 of March 2019 on promoting reconciliation, accountability and human rights in Sri Lanka (ReliefWeb, 2021). Thus, we are merely compelled to ask, when will be the next resolution?

Conclusion

According to Jayakody (2017), “transitional justice is unique to each context and there is no one size fits all approach”. As such, the ultimate challenge in Sri Lanka is not paying perpetrators what they deserve, rather, it is making justice by means of realizing societal transformation. Moreover, while transitional justice can be achieved domestically, internationally, via hybrid courts, and with ad hoc criminal trials (Murphy, 2021), and as it is “partial and limited” (Teitel, 2002), and viewed by many as a “compromise” (Murphy, 2017) — its fundamentals ought to convey a message that in order to repair broken relationships there is a need to recognize and remedy the wrongdoings. 

Concerning the victims, as transitional justice seeks justice for victims, and while justice is a prerequisite for improved trust, victims “deserve the greatest attention from the international community” (UNHCR, 2004). While some argue that it is pointless to think of the past, for the victims themselves, all they can do is think of the past (Palansuriya, 2022). That is why, among the primary demands of victims, is to attain acknowledgement of the fact that they have been deliberately harmed, as noted by de Greiff (2010). In this sense, ‘acknowledgment’ is “the one stage through which any successful process of societal recovery must pass”, and it should come about before other acts of social rebuilding, such as forgiveness and reconciliation (Quinn, 2021).

Additionally, reparation programs can benefit in safeguarding that justice focuses not merely on perpetrators, and truth commissions can provide victims with a public stage to address the nation directly (UNHCR, 2004). However, as Saravanamuttu (2022) claims, culturally, since Sri Lanka is a society based more on shame than guilt, it is questionable whether full confession will be possible, since communities with previous truth commissions demonstrated a powerful Christian influence with an emphasis on guilt.

As for public involvement, the actions of the PRC from May 2016 and the CTF from January 2017, are a positive step forward. However, as Quinn (2021) pointed out, it is essential to address the “psychosocial and emotional needs of the population” in transitional justice. While seemingly, the government demonstrated “unwillingness to commit to a comprehensive plan that prevented effective public communication” (Lassée, 2019), and with almost 70% of Sri Lankan public have not even heard of the PRC and its undertakings — there is more to do in terms of educating the public on the importance of transitional justice measures. Given that past experience with transitional justice strongly indicates that its level of achievement depends on the “quantity and quality” of victim and publics engagement (UNHCR, 2004), and while “belief in victimization provides the moral weight to look for justice and oppose the adversary”; that is, beliefs that sustain conflict (Bar-Tal, 2013), regardless of UNHRC resolutions, the Wickremesinghe government will be bound to listen to its public.

With respect to the international community, in a conflict, victims’ perception is critical in winning the international community’s support. Therefore, as according to Amnesty International (2019), in affirming that “the international community must ensure that the government of Sri Lanka delivers on its obligations under international law”, and while the government is in the process of a bailout from the International Monetary Fund (IMF) after its worst economic crisis since independence, the international community must take a more active part in supporting the Wickremesinghe government to pursue transitional justice.

Finally, with regard to democracy, Sri Lanka is a 2,500-year-old civilization, and it is Asia’s first democracy to provide universal suffrage. As political timing is key to the success of transitional justice, and while transitional justice is frequently essential for political concessions to be made, a powerful hope in transitional justice efforts in Sri Lanka may be renewed, with President Ranil Wickremesinghe recent invitation of Tamil parties to negotiate to resolve the matter of adopting a federal form of government, before the 75th anniversary of independence, in February next year. The fact that Wickremesinghe, six times Prime Minister, and first time President, is a known figure for his past and positive relations with India and the West, may possibly assist in promoting a new pathway in Sri Lanka’s long journey toward comprehensive transitional justice.

*The author has a master’s degree and a Thesis in Government with Specialization in Counter Terrorism and Homeland Security, and is an intern at the Military and Strategic Affairs Program, INSS.