by Dr. Sujith Xavier, ‘Groundviews,’ Colombo, July 5, 2016
Transitional justice is a popular term in present day Sri Lanka. It is the means by which the various parties to the conflict have decided to bring about justice and reconciliation. The reason behind this move to employ transitional justice is two-fold. First, the international community, especially the United Nations, failed to intervene during the final stages of the conflict in 2008 and 2009. In fact, the United Nations specialised agencies did the exact opposite and pulled out of the North and East of Sri Lanka during this time, leaving the civilians at the mercy of the parties to the conflict. Second, the previous Sri Lankan government was unresponsive to the demands for justice.
Transitioning from a violent past to a peaceful future is the central focus of the dynamic field of transitional justice. Transitional justice seeks to understand how forward movement, from times of acute, often violent crisis, is possible. Moreover, it is the catalyst for transition to democratic rule from authoritarian, communist, and conflict societies. This transition from moments of acute crisis is made possible through various mechanisms such as truth and reconciliation commissions, reparations, and the prosecution of those responsible for human rights violations as a means to deliver justice to victims.
Numerous communities have grappled with how to move forward after a violent conflict or violence perpetrated by state officials. As Sri Lanka embarks on the long road to reconciliation, it is important to build upon and learn from the successes and failures of other experiences.
Canada’s experience with transitional justice is important. Settler colonialism, another important concept, describes the dispossession of Indigenous lands and the on-going colonisation of Indigenous peoples by Europeans and non-Europeans alike. In Canada, the on-going colonisation is reflected in how governmental policies and legalities continue the marginalisation of this particular community. The Residential School experiment was, until the late 1990s, part of this process. The Residential Schools can be described as forced boarding and educational facilities for Indigenous children. The last of the remaining Residential Schools closed its doors in 1996.
It is important to note that Canada’s policies towards racialised minorities within its borders are also problematic. Policies of exclusion focussing on black, Chinese and other groups that commenced with the birth of Canada continue to this day. Even today, policies of overt denial of service to black patrons rooted in the early 1900s have now been reformulated to institutional racism through such mechanisms as racial profiling.
The Truth and Reconciliation Commission (TRC) was created as a Court instituted resolution to a class action litigation brought against the Canadian settler state by Residential School survivors and victims’ families. The TRC is one of the first instances in which a democratic state instituted a transitional justice mechanism.
The origins of the Residential Schools can be traced back to the birth of Canada and the British North America Act of 1867. The schools were horrible institutions in which Indigenous students were humiliated, tortured, raped and ultimately forced to forget their respective languages and traditions. Approximately 150,000 students went through the hallways of these draconian imperial institutions.
When reflecting on the process of reconciliation through transitional justice in the aftermath of war in Sri Lanka by drawing on insights from the TRC’s findings, it is imperative to recognise that Sri Lanka too has an Indigenous community. This community has been differently impacted by the conflict. Their way of life and traditional practices has been transformed in the last 30 years or so. In the proceeding sections, I will focus on transitional justice and reconciliation as it relates to various parties to the conflict.
Transitional Justice: Prospects and Problems
Patricia Williams, a leading critical race scholar in the United States once remarked that: “Rights feels new in the mouths of most black people”. In a similar vein, international law and transitional justice feels new in the mouths of Sri Lankans. Williams reflects on this newness by suggesting that rights are “deliciously empowering” akin to a “magic wand of visibility and invisibility, of inclusion and exclusion, of power and no power”. In Sri Lanka’s post-conflict moment, transitional justice is on everyone’s lips.
Transitional justice is obviously delicious. It is a magic wand that will somehow make the 2008/2009 killing fields of Vanni more real. The various mechanisms housed under transitional justice will punish those who participated in the killings of thousands of civilians on all sides of the conflict. It will bring justice to the survivors of Mullivaikkal. It will bring justice to those that fled the blood trains in July 1983 and the countless victims of other atrocities committed during the bloody conflict.
But this symbolic belief in transitional justice is not enough in Sri Lanka. We know from our own lived histories that law has a tendency to be used by the powerful against the powerless. More importantly, law was the tool of our former colonial masters. It was used to create hierarchies between Europeans (the civilized) and the rest (people of colour and Indigenous people). Sri Lankan international law scholars like Antony Anghie, Vasuki Nesiah and Muthucumaraswamy Sornarajah have devoted their academic careers to documenting the role of international law in colonialism and imperialism. My own recent academic scholarship has sought to locate the colonial legacies within international and hybrid courts. The turn to transitional justice, and in particular international law (arguably the handmaiden of colonialism and imperialism) must be seriously interrogated.
Transitional justice is a broad field that encompasses many aspects of international law. Leading transitional justice scholars like Rosemary Nagy have suggested that international criminal courts, hybrid courts, specialised chambers within domestic courts, truth commissions, apologies and amnesties, reparations and other mechanisms are tools that are part of the transitional justice toolbox. Each mechanism has its own respective enabling laws, norms and values that underpin the various theoretical boundaries.
There exist many different examples of transitional justice mechanisms. In the wake of the Cold War, the United Nations Security Council created international criminal courts for Rwanda and the former Yugoslavia in the early 1990s. The International Criminal Court was created in 1998 and currently includes 124 signatory Member States of which, sadly, Sri Lanka is not a signatory. In the early 2000s, the then UN Secretary General, at the behest of the international community set up two hybrid courts in Cambodia and Sierra Leone. There are numerous specialised chambers within the domestic courts of newly formed Balkan states. Truth commissions have been used in a number of different places that have experienced acute crisis, including post-apartheid South Africa. Sri Lanka has a rich, but problematic, history with commissions of inquiries. There have been countless commissions of inquiry made possible through the Presidential Commissions of Inquiry Act, 1948. We also have examples of amnesties and apologies in El Salvador and other countries that have experienced mass human rights violations. As a consequence, almost all of the various transitional justice tools have been deployed throughout the globe.
International criminal courts are often imagined as the most powerful mechanisms within the transitional justice framework. These courts rely on international criminal law. At the moment, there are four specific international crimes: genocide, war crimes, crimes against humanity and the crime of aggression.
By focusing on international criminal law and its various courts, we know that there are significant problems with international and hybrid courts. Empirical evidence from the Rwandan Tribunal, for example, suggests that the judges had a pro-conviction bias. The Hutus killed the Tutsis. This simplistic narrative, based on questionable historical analysis, was the mantra of the Tribunal. More importantly, as noted by Elena Baylis, foreign nationals are the leading experts within international criminal and hybrid courts. These experts have no real understanding of local histories of the conflict or knowledge of the local languages, which contributes even further to the pro-conviction bias. These criticisms are emblematic of international law’s colonial legacies.
Similar criticisms can be leveled against other mechanisms within transitional justice.
Reconceptualising Reconciliation in Transitional Justice
So, what hope do we have for transitional justice in Sri Lanka? It is a sliver of hope that must be guided by the lessons of history, sentiments of the present and hopes for a better future.
Guidance must be obtained from the Canadian Truth and Reconciliation Commission’s report. While some may find the turn to an institution in the Global North perplexing – what is undeniable is that the Canadian Indigenous experience is also the result of colonialism and imperialism. Sri Lanka’s own history of colonialism and imperialism is significant in fostering an environment that led to the internal armed conflict.
The Indigenous peoples of Canada have long struggled to gain access to basic human rights, such as clean water, as well as public services, goods and institutions. The Truth and Reconciliation Commission’s findings highlight the sad realities of the Indigenous peoples and offers sound guidance for those seeking to move beyond past human rights violations.
In its findings, the TRC details the excruciatingly painful accounts of the survivors and provides one of the most comprehensive contemporary frameworks for reconciliation. The 94 recommendations force academic institutions, public authorities and public institutions, and governments to contend with, and confront their, internalised systemic racism. The TRC’s most important contribution however is its definition of reconciliation as an “ongoing process establishing and maintaining respectful relationships”. For the Commission, a critical aspect of creating and maintaining respectful relationships is to repair trust by “making apologies, providing individual and collective repartitions and following through with concrete actions that demonstrate real societal change”.
The various players in the transitional justice spaces in Sri Lanka are all too well aware that reconciliation is only possible through multiple strategies making use of the various mechanisms like reparations, reconciliation and adjudicatory processes. It is undoubtedly clear that it is not enough to simply prosecute the perpetrators of war crimes and crimes against humanity. Rather we need to include reparations, apologies and other truth seeking mechanisms as well to render justice.
What is missing from these debates about transitional justice in Sri Lanka is the reconceptualisation of reconciliation as a continuous process of (re-)building relationships. Much more importantly, the transitional justice conversation is not the impetus to bring about meaningful systemic change to the issues that caused the civil war in the first place in Sri Lanka.
Real societal change is only possible through equal access to public goods and services without discrimination. We know from history that discrimination is built into the very laws that govern us. To bring about societal change, we need human rights for all Sri Lankans, equal participation in the democratic process, access to public institutions, and broader redistribution of wealth in the North, East and South of Sri Lanka. This is the only way to move forward from the grave injustices of the past.