Negotiating the Future: The Media’s Role in Transitional Justice

Maria Mejer Rae

Submitted in total fulfilment of the requirements of Doctor of Philosophy

December 2016

School of Social and Political Sciences Faculty of Arts University of Melbourne

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Abstract: Transitional justice has become a global norm and practice yet some advocates continue to use the media alongside law to pursue justice for state crimes. This thesis examines why they do so and what this can tell us about the current limits of transitional justice and possible ways forward. My thesis undertakes a comparative case study analysis of Sri Lanka, Argentina and Australia to address these questions. In taking an empirical bottom-up approach, it draws primarily on interviews with 21 advocates centrally involved with legal claims against the state, about their perceptions, beliefs and experiences of the relationship between the media and transitional justice, alongside an analysis of key texts.

The thesis finds that these ‘justice advocates’ turn to the media as a parallel justice forum that at times intersects with law to provide a public space for accountability and truth-telling. It shows how the media is used alongside law to make justice claims heard in the public sphere and to put pressure on the state to enact political and social reform. The media is also used as a tool to influence public opinion, mobilize action and apply pressure on international legal and political institutions to respond to human rights violations. However, the media’s complicity in or indifference to state crimes can place limits on its capacity to play a formal role in transitional justice.

In drawing on Habermas’ public sphere conceptual framework, this thesis concludes that the media’s role in transitional justice can be conceived as an accountability mechanism that communicates opinion between civil society and the state. In light of this, it argues that transitional justice projects may consider providing an official democratic forum so citizens can participate in discussing, debating and negotiating what the future looks like in a post-conflict society. This space of public deliberation could be an official platform for justice advocates to make claims and be heard. In doing so, this space encompasses a grassroots approach that encourages citizens to participate in negotiations about the future of a post-conflict society. Subsequently, transitional justice projects may facilitate a more deliberative process for public opinion to be formed about how society wants the state to respond to human rights violations.

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This is to certify that

i. the thesis comprises only my original work towards the PhD except where indicated in the Preface, ii. due acknowledgment has been made in the text to all other material used, iii. the thesis is less than 100,000 words in length, exclusive of tables, maps, bibliographies and appendices.

Maria Rae

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Acknowledgments

First and foremost, my deepest thanks go to those who spoke so openly to me about their fight for justice and who were incredibly generous with their time, knowledge and hospitality. Their courage and tenacity is inspiring and has been a constant motivation for this thesis – it would never have been written without their contribution. I hope in some small way it helps in letting the world know what happened in their homeland.

The guidance, wisdom, and encouragement from my supervisors Jennifer Balint and

Julie Evans were a strong source of support. The opportunities they offered me helped launch my academic career and I am very grateful to them for thinking beyond my candidature. Sally Young’s mentorship not only developed and improved the thesis but also expanded my thinking more broadly about media and politics. Raymond Orr’s valuable feedback kept me challenged and amused. I also appreciate the constructive and thoughtful feedback from the two examiners. I could not ask for better fellow PhD students in Or Avi-Guy, Evelyn Bergman, Danu Mirayagalla and Tamas Wells who were always willing to give advice, share small wins and debrief. Most of all, I am glad this thesis introduced me to Alma Begicevic who has become such a dear friend and ally throughout this journey together. Thank you to my family and friends who have been so understanding and kind during the ups and downs of the research process. In particular, Abbas Valadkhani was on hand with his special blend of coffee and Rocky

Balboa quotes whenever my spirits flagged. Finally, this thesis is dedicated to my mother who first taught me about justice – I wish she were still here to share this achievement.

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Contents

Chapter 1: Introduction ...... 7 Chapter 2: Transitional Justice and The Media ...... 15 2.1 The Aims and Scope of Transitional Justice ...... 15 2.3 The Expansion of Transitional Justice ...... 22 2.4 Taking a Bottom-Up Approach to Transitional Justice ...... 25 2.5 The Media, Conflict and Transitional Justice ...... 27 2.6 The Media’s Role as a Public Forum in Liberal Democracies ...... 31 2.7 A Parallel Justice Forum: Media and Legal Processes ...... 35 2.8 Conclusion ...... 39 Chapter 3: Methodology ...... 41 3.1 Conceptual framework ...... 41 3.2 Case studies ...... 44 3.3 Sourcing participants ...... 46 The Case of Sri Lanka ...... 46 The Case of Argentina ...... 49 The Case of Australia ...... 50 3.4 Semi-structured interviews ...... 51 3.5 Data analysis ...... 55 3.6 Content Analysis ...... 57 3.7 Ethical issues ...... 59 3.8 Conclusion ...... 61 Chapter 4: The Limits of Trials and Truth-Telling ...... 62 4.1 Pursuing Judicial Accountability: The Case of Argentina...... 63 Breaking The Junta’s Veil of Silence: Mothers Search for the Truth ...... 65 The Critical Role of Law in Making Truth-Telling Official ...... 69 Challenging Amnesty Laws: Advocating for Trial and Punishment ...... 71 4.1 Pursuing Protection Against Harm: The Case of Sri Lanka ...... 74 A Victors’ Justice: Pursuing Prosecutions in International Jurisdictions ...... 76 The Strengths and Limitations of Law for Truth-Telling ...... 78 Protection Against Future Harm and the Importance of No Impunity ...... 82 The Limits on Getting a ‘Good’ Legal Judgment ...... 85 4.3 Pursuing Indigenous Rights and Recognition: The Case of Australia ...... 90 The Barriers to Recognition of Genocide and Reclaiming Land ...... 92 Challenging the Barriers of the British Colonial Legal System ...... 96 The Strengths and Limits of Using Law to Let the World Know What Happened ...... 99 4.4 Conclusion ...... 101 Chapter 5: The Expanded Demands of Transitional Justice ...... 103 5.1 Pursuing Economic Equality and Participatory Democracy in Argentina ...... 104 Reframing Past Memories to Pursue Social Justice ...... 106 The Relationship Between Impunity and Social Injustice ...... 108 Fighting for Deliberative Democracy and a Just Future ...... 109 5.2 Pursuing Rights to a Homeland and Self-Determination in Sri Lanka ...... 111 Challenging Democracy as a Structure for Discrimination ...... 113 The Quest for Rights to a Homeland ...... 116 Law’s Limited Role in Political and Social Change ...... 119

5 The Media’s Role Alongside Law in Advocating for Political Change ...... 122 5.3 Pursuing Sovereignty and a Treaty in Australia ...... 125 Challenging Liberal Democracy and the Dispossession of Land ...... 127 Fighting the ‘Tyranny of the Majority’ in the Courts ...... 129 Using Media Alongside Law to Protest Against Injustice ...... 132 5.4 Conclusion ...... 133 Chapter 6: The Functions of the Media in Transitional Justice ...... 136 6.1 Exposing Crimes: Lifting the Veil of Secrecy ...... 137 6.2 Naming Crimes: A Space for Victims to Bear Witness ...... 142 6.3 Naming and Shaming Perpetrators ...... 144 6.4 Creating a Public Record ...... 148 6.5 Creating an Alternate Public Forum for Deliberation ...... 149 6.6 Setting the Agenda and Mobilizing Action ...... 153 6.7 Applying Pressure for Legal and Political Responses ...... 155 6.8 The Media as a Tool for Pursuing Justice ...... 160 6.9 Conclusion ...... 163 Chapter 7: The Media’s Limitations in Transitional Justice ...... 165 7.1 A Typology of the Media and State Crimes ...... 165 7.2 The Limitations of the Media in Pursuing Justice: Ignorance ...... 173 7.3 The Limitations of the Media in Pursuing Justice: Commercialization ...... 177 7.4 The Limitations of the Media in Pursuing Justice: Politicization ...... 181 7.6 Conclusion ...... 185 Chapter 8: Conclusion: The Media and Transitional Justice ...... 186 8.1 The Media’s Role as a Parallel and Intersecting Justice Forum ...... 187 8.2 The Media’s Role as a Space for Public Deliberation ...... 191 8.3 The Media’s Role as an Accountability Mechanism ...... 195 8.4 Negotiating the Future: An Official Democratic Forum ...... 200 References ...... 206

6 Chapter 1: Introduction

In 2011, an Australian-Tamil man Jegan Waran filed an indictment in the Melbourne Magistrates Court against then Sri Lankan president Mahinda Rajapaksa who was about to visit Australia for a Commonwealth Heads of Government Meeting (CHOGM). Waran and his lawyers immediately held a media conference and his claims were widely reported in more than 130 news reports nationally and internationally. In this media conference Waran spoke of witnessing war crimes while working as a volunteer during the bloody end of the Sri Lankan conflict in 2009. The magistrate allowed the case to proceed to the Supreme Court however the Australian Attorney-General used his power of veto over war crimes charges to quash the case on the grounds of diplomatic immunity for the Sri Lankan president so these claims were never heard in an Australian court of law. In response the Australian Tamil Congress (2011) put out a statement saying: The media craze that exploded in Australia in the lead up to CHOGM has shown us that although world leaders will play politics on the issue of human rights, the Australian media and public will give issues such as accountability for war crimes and restoration of justice the importance they deserve.

In 2013, the United Nation’s Special Rapporteur for Torture Juan Mendez apologizes to me during an interview in his Washington DC office and takes a phone call. It is a journalist asking him to comment on his criticism of the US for using solitary confinement in prisons. For Mendez, the issue is not purely academic. As a young lawyer during Argentina’s military regime he was arrested, held in detention and tortured. In the late 1970s, when Mendez first began representing the families of the disappeared he would attend the court and file a habeas corpus writ, which was met with a denial of arrest. It was then he also turned to the media for help. As Mendez recalls: If somebody had been abducted and been tortured and we needed to get the government to recognize that he or she was in prison we filed a petition for a writ of habeas corpus but we immediately tried to get the press to highlight it. And in fact I think in the case of Argentina as things got worse and worse it was very hard for lawyers to continue to do this, in fact we would have to go by surprise to the court house to file a habeas corpus because if we stayed there very long we might be arrested ourselves (Mendez Interview, October 23 2013).

7 In 2014, I follow Robbie Thorpe, from the Krautungalung people of the Gunnai Nation, the traditional owners of Lake Tyers, into a studio at the 3CR community radio station in Fitzroy, Australia. He puts on his headphones and launches into a rap live on air: Terra nullius, legal fiction, no consent, no treaty, no jurisdiction Apartheid law, reservations, mission stations, compounds, jails and concentration, over-representation, incarceration, deaths in custody, Stolen Generations, mental harm, intervention, intent to destroy, they create the conditions Australia’s a crime scene; it’s a criminal nation. We want a crime scene investigation (Thorpe Interview, August 11 2014).

Thorpe is a long-time activist who has initiated several legal cases of genocide against the state. He has also been a long-time media producer who ran the independent Koorie Information Centre and now concentrates on his radio programs at 3CR called Fire First and AltarNative. Thorpe sees the independent media as vital to challenging the official story of Australia. As he describes it: ‘The country was built on lies, deceit, propaganda and race hatred indoctrination. It’s a colony that never had a treaty, it never had consent. Of course they’re going to be selling this story hard and anyone who says differently is going to get stomped on. Because it undermines everything about Australia and what it is. The truth will destroy the country’ (Thorpe Interview, August 11 2014).

These three vignettes may appear very geographically, politically, historically, culturally and socially different. But they converge in highlighting how victims of state crimes can use the media alongside law in an attempt to ‘find justice’ whether is it for Sri Lankan war crimes, Argentinean disappearances or Australian settler-colonial harms against indigenous people. As a former law reporter on a newspaper, my motivation for undertaking this research arose from my deep curiosity to know how victims and the advocates who support them view the relationship between the media and the justice they seek in the wake of state crime. This thesis examines how they perceive what justice means, what they believe the media can do for them in finding this justice and what the role of law is in redressing human rights violations. Most importantly, it asks these questions to inform what this can tell us about the current limits of transitional justice.

Transitional justice refers to the distinct legal responses activated during periods of radical political change following an oppressive rule (see for example Teitel 1991; Kritz

8 1995; Cohen 1995; Luyse 1995; Minow 1998; Arthur 2009). It is a range of political- legal mechanisms that includes prosecutions, truth commissions, government apologies, compensation, memorials and public education. The adoption of a transitional justice approach in post-conflict societies has been so widespread that it has become a normalized global project (Teitel 2014; Nagy 2008). It has also become an institutionalized practice with a dedicated International Center for Transitional Justice based in the United States and United Nations committee for transitional justice. Significantly, the United Nations (2004) has also officially adopted this framework and defined it 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’. This demonstrates the widespread normative commitment to ensuring transitional justice goals and practice are central to reconstructing a post-conflict state.

There has also been much scholarly attention paid to transitional justice ranging from an initial exploration of how best to implement these mechanisms to a quest for better conceptualization of the field. More recently, transitional justice is facing a ‘paradox of success’ as its mechanisms are critiqued as ineffective yet more is demanded from them (Balasco 2013). One reason for this is because the scope of transitional justice goals has rapidly expanded from legal accountability and truth-telling to include underlying economic, political, cultural and social injustice (Mani 2008; Millar 2008; Muvungi 2008). This problematizes the prevailing focus on legal processes in transitional justice and critics have questioned whether law can adequately redress these injustices and lead to broader social change (Shklar 1964; McEvoy 2008). The potential application of transitional justice principles has also widened to include established liberal democracies, and particularly Western settler colonial states that have inflicted mass harm on indigenous people (Balint, McMillan and Evans 2014; Henry 2015; Winter 2013; Phillips 2015). This tests previously held assumptions in transitional justice of the need for a clear rupture point before a transition from an oppressive regime into the ‘idealized endpoint’ of a liberal democracy (Nagy 2008; Green 2012). So, not only has the norm of transitional justice spread globally, but the expectations on the scope of what harms it can address has also widened. This raises the question of why some individuals or groups are still trying to ‘find justice’ through the media when there

9 appears to be an institutionalized global willingness to reckon with the past and a range of mechanisms to redress a diversity of injustices.

The disjuncture between willingness and outcomes has prompted more focus on an empirical bottom-up approach that aims to understand how affected communities perceive and experience transitional justice mechanisms (Stover and Weinstein 2004; Jones, Parmentier and Weitekamp 2012; Van der Merwe et al 2009; Kent 2012; Robins 2011, 2012; Pham and Vinck 2007; Lundy and McGovern 2008). These studies highlight the gap between the legal processes and goals of transitional justice and its implementation on the ground. They also illuminate the localized and dynamic ways affected communities respond to the perceived inadequacies of transitional justice. My research follows this approach in seeking to understand why justice advocates respond by engaging with the media alongside law, why they believe the media can play a role in post-conflict reconstruction and what this can tell us about the limitations and strengths of transitional justice. By justice advocates, I mean the victims and witnesses who appeal to both the media and law for justice and those who support them and participate in these actions including lawyers and representatives from non-government organizations.

The media is considered a central institution in liberal democracies that underpins freedom of expression and holds states accountable. This thesis follows others in defining the media in the singular while referring to a collective whole ‘not only in the sense of including both print and broadcast channels of communication, but also insofar as individual television and radio stations, newspapers and magazines, and journalists have different, often conflicting, political objectives and play very different roles during transition’ (Laplante and Phenicie 2010; Gunther and Mughan 2000). Another distinction to make is that this thesis analyses only mainstream news media, both public and private, rather than social media. This is because social media was not in existence or widely used during the timeframe of this study and the mainstream news media was the focus for justice advocates. Transitional justice practitioners have recognized the media’s importance in publicizing the proceedings and outcomes of transitional justice mechanisms (Boraine 2000; Vinck and Pham 2010; Ramírez-Barat 2011). Yet, there is an emerging question about to what extent the media should be involved. For example, in 2014 the International Center for Transitional Justice held a debate about whether

10 the media should actively support transitional justice efforts. Despite the many multidisciplinary studies on transitional justice, there have only been a few that have specifically analyzed the role of the media (Laplante and Phenicie 2009, 2010; Price and Stremlau 2012). Furthermore, there has been no examination of how justice advocates perceive the media’s role in transitional justice. Thus, the main aim of my thesis is to address this gap in knowledge by questioning what the use of the media alongside law by justice advocates can tell us about the current limits of transitional justice and possible ways forward.

To achieve this aim my thesis undertakes a comparative case study analysis of why justice advocates from Sri Lanka, Argentina and Australia have appealed to both the media and law when seeking justice for state crimes. It draws primarily on 21 interviews with justice advocates about their perceptions, beliefs and experiences. In bringing these narratives to the fore, together with textual analysis of legal documents, media articles, memoirs and academic literature, this thesis seeks to understand how justice advocates view transitional justice and the role of the media in these processes. The case study analysis will inform the emerging scholarly knowledge of what affected communities believe the existing strengths and limitations of transitional justice processes are. More significantly, it will contribute to the currently impoverished consideration of the role of the media in these processes. Thus, the thesis can shed more light on the prevailing limits of transitional justice through a better understanding of what justice advocates are trying to achieve in using the media.

Chapter 2 considers how we can understand the media’s relationship with transitional justice processes. It begins by exploring why, despite the expanding norm, practice and scope of transitional justice, it often fails to meet expectations and has been constrained by a focus on legal processes. It then examines how scholars can specify and localize the limitations of dominant transitional justice processes in meeting the expanded demands of political, social, economic and cultural change. The chapter then discusses how, despite the media’s position as a key institution in liberal democracies, there is still little evidence yet about what its relationship is or should be with transitional justice. Importantly, there is also no empirically based bottom-up approach to discovering what the media’s use and functions in post-conflict societies can tell us about the limits of transitional justice. Given the paucity of specialist studies in this area, the chapter ends

11 with a consideration how Habermas’ concept of the public sphere is a useful framework for this research problem.

Having analysed the theoretical approaches for investigating the media’s role in transitional justice, Chapter 3 outlines the methodological approach taken in this thesis. It elaborates on the conceptual framework that is based on socio-legal studies and, more specifically, takes an interpretive approach to researching the experiences, beliefs and narratives of justice advocates. I justify the use of the three case studies, qualitative semi-structured interviews and textual analysis of media articles, memoirs and court documents. The chapter concludes with a discussion of the fieldwork practice and ethical considerations I undertook.

Chapters 4, 5, 6 and 7 discuss the findings that emerged from the data about how justice advocates view transitional justice and the media. Chapter 4 focuses on how participants have experienced, understood and responded to the transitional justice mechanisms of trials and truth-telling. It is divided into sections for each case study in which I firstly outline the key legal processes that have occurred and the kind of justice that advocates sought and expected from these legal and quasi-legal processes. Chapter 4 finds that most of these justice advocates want protection from future harm, no impunity, jail, having the truth told and letting the world know what happened. It also finds that most advocates want a legitimate legal process to underpin trials and truth- telling. However, the chapter demonstrates that transitional justice is often limited in providing this public space for accountability and truth-telling. Despite this, some justice advocates believe the boundaries of law can shift according to public opinion. Therefore, it shows that justice advocates use the media to appeal to the public sphere to try and open up spaces where their claims can be heard.

Chapter 5 builds on these findings to focus on the expanded demands on transitional justice to respond to political, social, economic and cultural injustice. It firstly discusses how justice advocates view these injustices as underlying causes of the conflict and their views on how these injustices should be addressed. The chapter finds that, together with legal accountability and truth-telling, Argentinean justice advocates also want participatory democracy and social and economic equality. Those in Sri Lanka and Australia also want self-determination, rights to a homeland, sovereign treaties and a

12 democracy in which individuals are free to express themselves. It finds that justice advocates try to use law to make these political, social, economic and cultural claims. However, a legal framework is limited in facilitating political discourse and negotiation, particularly in the national public sphere. Therefore, the chapter shows how the media is used alongside legal claims to make their political protests heard in the international public sphere and to put pressure on the state to enact political and social reform.

Chapter 6 examines in more depth why justice advocates appeal to the media alongside law in transitional justice. This chapter considers how justice advocates view the functions of the media when the kind of justice they seek appears to be beyond the capacity of current transitional justice processes. It finds the key themes of the media’s functions are to: expose crimes; name crimes; name and shame perpetrators; create a public record; and be a parallel and intersecting justice process. Furthermore, the chapter finds that some justice advocates believe that once the media draws attention to state crimes it also has the capacity to influence public opinion and mobilize action. In doing so, it shows how the media is used as a tool alongside law to apply pressure on legal and political institutions to respond to human rights violations.

In elaborating on these findings, Chapter 7 focuses on the limitations of the media to play a role in transitional justice. Firstly, this chapter discusses how justice advocates differentiate the media into exceptional news organizations that investigate and report on state crimes and those that do not. Thus, it develops a typology of the media as: complicit in state crimes, indifferent to state crimes or a participant in pursuing justice for state crimes. Secondly, the chapter explores how justice advocates believe the media fail to report on state crimes for reasons that can be divided into three categories: ignorance, commercialization and politicization. This chapter argues that, despite these limitations of the media, there are possibilities for the media to play a more participatory role in the pursuit of post-conflict justice.

The preceding chapters found that justice advocates perceive the media as having the potential to play a role in transitional justice despite some significant limitations. Chapter 8 then synthesizes the findings to analyze to what extent the media can be a participant post-conflict reconstruction and what this can tell us about the current limits of transitional justice. Firstly, it discusses how the media can play a role in public

13 deliberation that may replicate and challenge formal transitional justice processes. Secondly, it explores how the media is used alongside law as an unofficial democratic forum in which justice advocates appeal to public opinion in support of economic, social, cultural and political change. Thirdly, it concludes that the media’s role should primarily be conceived of as an accountability mechanism within the public sphere that communicates opinion between civil society and the state.

Finally, this research argues that, there may be a need for transitional justice to go beyond law and provide an official democratic forum so citizens can participate in discussing, debating and negotiating what the future looks like in a post-conflict society. This space of public deliberation could provide an official platform for those justice advocates, who may have otherwise appealed to media alongside law for their claims to be heard. In doing so, this space encompasses a grassroots approach that encourages citizens to participate in negotiations about the future for a post-conflict society. In providing an official democratic forum, transitional justice projects may facilitate a more deliberative process for public opinion to be formed about how society wants the state to respond to human rights violations.

14 Chapter 2: Transitional Justice and The Media

Transitional justice has now become a global project that provides a framework for rebuilding post-conflict societies into functioning liberal democracies. The expectation is that a range of mechanisms, such as trials and truth commissions, can reconcile communities, reconstruct fractured nations and deliver justice to victims of conflict. Despite these putative aims, some justice advocates, nevertheless, continue to appeal outside the transitional justice framework, in particular to the media, for justice. Therefore, this chapter considers how we can begin to understand what the media’s use and functions in post-conflict societies can tell us about the limits of transitional justice. It begins by exploring why, despite the expanding norm, practice and scope of transitional justice, it often fails to meet expectations and has been constrained by a focus on legal processes. It then examines how scholars can specify and localize the limitations of dominant transitional justice processes in meeting the expanded demands of political, social, economic and cultural change. The chapter then discusses how, despite the media’s position as a key institution in liberal democracies that can influence political and legal processes, there is still little evidence yet about what its relationship is or should be with transitional justice. Given the paucity of specialist research in this area, the chapter ends with a consideration of how Habermas’ concept of the public sphere is a useful framework for this research problem.

2.1 The Aims and Scope of Transitional Justice

Transitional justice refers to the distinct legal and quasi-legal responses activated during radical political change following periods of an oppressive rule (see for example Teitel 1991; Kritz 1995; Cohen 1995; Luyse 1995; Minow 1998; Bassiouni 2002). Originally referring to the collapse of communism in Eastern Europe and the transition to democracies in Latin America, transitional justice has since been applied to the end of apartheid in South Africa, the aftermath of genocides in Rwanda and the former Yugoslavia and the Middle East uprisings to name a few (Arthur 2009). The scope of transitional justice has more recently been widened to encompass liberal democracies including settler colonial societies such as Australia, Canada and New Zealand where state harms that were historically perpetrated against indigenous people can continue into the present (Balint, McMillan and Evans 2014; Henry 2015; Winter 2013; Phillips 2015). Accompanying this has been a burgeoning field of multidisciplinary scholarly

15 inquiry and practice that spans law, political science, sociology, criminology and the broader domain of human rights. Bell (2009: 7) has argued that transitional justice has ‘experienced a dramatically compressed trajectory of fieldhood’.

Indeed, the adoption of transitional justice in post-conflict societies has been so widespread that it has become regarded as a normalized global project (Teitel 2014; Nagy 2008). Transitional justice mechanisms can include prosecutions, truth commissions, lustrations, government apologies, compensation, memorials and public education. As Minow (1998: 1) observes, ‘perhaps more unusual than the facts of genocide and regimes of torture marking this era is the invention of new and distinctive legal forms of response’. These are aimed to deal with the past, reconcile a nation, ensure accountability, foster democracy and attend to victims’ needs (Mertus 2000; Bassiouni 2002). Cohen (1995) suggests that transitional justice goes through four phases: knowledge, accountability or impunity, reconciliation and reconstruction. A useful heuristic model based on the four building blocks of truth, accountability, reparation and reconciliation has also been proposed (Parmentier 2003; Parmentier and Weitekamp 2007). More recently, transitional justice goals have expanded to address political, social, and economic institutions that give rise to violence (Sharp 2014; Mani 2012; Aguilar and Isa 2011; Miller 2008). This holistic approach has been summed up by the concept of ‘transformative justice’ which encompasses victims’ desire for accountability or legal justice; truth, knowledge and acknowledgment; socioeconomic justice and political justice (Lambourne 2009; Gready and Robins 2014). So, not only has the notion and practice of transitional justice spread globally, but also the scope of what harms it can potentially address has also widened. This raises the question of why some individuals or groups are still trying to ‘find justice’ through both the media and law when there is an institutionalized global willingness to reckon with the past and a range of mechanisms to do this.

Those responsible for implementing transitional justice grapple with how to make perpetrators accountable amid a climate of political and legal instability. Legal processes must also contend with the challenge of not just holding individuals to account for mass harm, but also the entire state (Balint 2008; 2012; 2014). The concept of state crimes captures the occurrence of when entire institutions are brought together in a systemic perpetration of human rights violations such as genocide, crimes against

16 humanity and apartheid (Balint 2012; Green and Ward 2004; Ross and Barak 2000; Rothe and Mullins 2011). This explains why justice is particularly difficult to find following state crimes (Horowitz 1976; Drost 1959; Schabas 2008). Therein arises the challenge of how a state might make itself accountable because as Horowitz (1976: 39) notes, state crime is a conscious political decision and choice. Therefore, the state needs the political will to address state crimes through law.

Accountability has been predominantly understood in the transitional justice context as state-driven prosecutions (Zunino 2016: 220; Olsen, Payne and Reiter 2010). Drawing on Collins’ (2010: 14) expanded definition that includes ‘civil claim-making as well as private attempts to bypass state prosecutors and directly trigger criminal investigation’ helps us identify a broader concept of accountability. As she notes, ‘both have become increasingly prevalent in post-transitional periods, challenging executive and legislative authorities’ previous monopoly on decision-making’ (Collins 2010: 14). This suggests that some citizens believe state-driven prosections have been inadequate in securing justice for state crimes. This more diverse concept of accountability that comes ‘from below’ with citizen-driven claims may help us understand the way in which justice advocates continue to see value in launching legal cases themselves. But how exactly do justice advocates understand legal and quasi-legal processes as a mechanism for finding justice? And what kind of justice are they seeking? Furthermore, what can the literature on the aims and scope of trials and truth commissions tell us about why justice advocates continue to appeal to the media as well?

Despite the limitations on accountability for state crimes, the appetite for trials gained momentum when the International Criminal Tribunal on the former Yugoslavia was established in 1993 and the International Criminal Tribunal for Rwanda followed in 1995 to deal with the mass atrocities that occurred in those countries (Morris and Scharf 1995; 1998). It culminated with the Rome Statute and the establishment of the International Criminal Court in 2002 (Schabas 2011). There are now 123 states that are party to the statute, which outlines four international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. As Sikkink (2011) notes in her book, The Justice Cascade, international prosecutions are becoming the norm and an expectation in post-conflict societies. Mertus (2000) offers a useful paradigm of the functions of war crimes tribunals, which are also considered transitional justice goals.

17 These are: naming crimes, blaming perpetrators, punishing the guilty and deterring potential perpetrators, delivering reparations, reforming lawless societies and recording what happened for history (Mertus 2000: 145). Trials have also been seen as a powerful deterrent against future abuses of human rights (Orentlicher 1991). More ambitiously, Osiel (1999) points to the transformative nature of trials in reckoning with the past and shaping a collective memory through being ‘monumental spectacles’. However, studies have shown how law is limited in allowing victims to tell their story in their own way and they are often disappointed in the court process (Stover 2005; Henry 2009). Mertus (2000: 150) argues that ‘some witnesses long for the opportunity to finish their story to name the crimes for themselves. To do so they must look beyond the legal system’. As Arendt (cited in Stover 2005: 14) warns us, a trial should never promise more than it can deliver. Thus, we begin to see why law might be limited for those who are trying to ‘find justice’ and they may appeal to other institutions or processes.

Accountability has also been hampered by the need to maintain peace in post-conflict societies. This ongoing debate about the balance between accountability and amnesty has been a key feature of the transitional justice literature (see for example Sriram and Pillay 2010; Hayner 2011; Roht-Arriaza and Mariezcurrena 2006; Laplante 2009; Rotberg and Thompson 2008; Scharf 1999). The need to stabilize a fragile new regime and reconcile a fractured society can seem mutually exclusive with a need for political stability, accountability and punishment (Leebaw 2008). This prompts the seemingly intractable question of whether it is better to prosecute or pardon (Moghalu 2010; Pion- Berlin 1994). The decision that elites make is often determined by the legacy of the past regime, the international context and the mode of transition (Huyse 1995). Those who choose to prosecute may face claims of a ‘victor’s justice’ or incite further conflict while, on the other hand, those who pardon may be seen as encouraging a culture of impunity while also denying victims’ rights to justice (Schabas 2009; Scharf 2002; Huyse 1995). Recently, there has been a shift towards viewing the relationship as complementary. As former UN secretary-general Kofi Annan (2004: 8) wrote, ‘justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another’. So, from this perspective, the scope of transitional justice can encompass both these competing goals within a legal framework. The implementation of quasi-legal truth-telling bodies is one way that post-conflict societies have attempted

18 to balance these competing aims by addressing the need to reckon with the past openly and honestly (Mendez 2001; Olsen, Payne and Reiter 2010).

A commitment to truth-telling is now considered central to the transitional justice project (UN 2013). Put simply, truth in post-conflict societies can be defined as ‘people’s understandings of what occurred in the past’ (Clark 2010: 34). What seems crucial to any truth-telling endeavour is the need to establish a collective memory of past injustices (Amadiume and An-Na’im 2000). These truth-telling bodies can thus be understood as more of a restorative justice mechanism (Parmentier 2001). The implementation of truth commissions in post-conflict societies have been aimed at revealing state harms committed under various regimes including military rule, apartheid and colonialism. Their potent mix of ‘truth-telling, healing, nation-building, history writing’ has been seen as a template for addressing past mass atrocities (Wilson 2001: 15). Revealing the truth is critical for transitional societies where there has been widespread silence and denial on human rights violations (Hayner 2011). There can also be a gap between knowledge and the acknowledgment that occurs only when mass harms become officially recognized in the public sphere (Nagel quoted in Weschler 1990: 4, my emphasis). Therefore, justice advocates may appeal to law because, ‘in a transitional justice context, what we seek is not truth per se but knowledge – justified true belief. Hence, the idea of justification, or proof, is crucially important’ (Elster 2012: 81).

Critics have questioned whether truth commissions are able to achieve their broader aims such as reconciliation and meeting community expectations of justice and reparations (Phillips 2005; Shaw 2007; Mendeloff 2004; Rotberg and Thompson 2000). Some argue that truth commissions must be interlinked with compensation or prosecutions to be meaningful for victims. Roht-Arriaza (2006: 8) sums it up well with her observation that: ‘“Truth-telling” followed by neither reparations nor prosecutions seemed to make victims’ accounts meaningless, while reparations without public acknowledgment of the facts looked to many victims like “blood money” paid for their silence. Prosecutions without a forum where a larger narrative could emerge created a partial, fortuitous view of history (dependent on evidence and the ability to apprehend defendants), while a truth commission without a tie to judicial actions against perpetrators begged the question of what the consequences of truth should be.

19

Daly (2008: 41) adds that ‘the truth might promote accountability, but only with the presence of an effective administrative or criminal justice system. The truth might prompt legislative reform, but only where a willing government commits sufficient political and financial capital to devising and implementing meaningful reforms. In none of these cases is truth alone sufficient to achieve these objectives’. Thus, we see that truth commissions can also be a limited legal process in transitional justice, although they are considered to be more expansive in giving voice to victims (Roht- Arriaza and Mariezcurrena 2006; Theidon 2007). This suggests that this type of quasi- legal forum is missing some kind of function in officially recognizing knowledge.

Yet, despite what seems like significant limitations of trials and truth commissions in achieving justice, law has still been considered central in having a transformative impact on reconstructing a post-conflict society (Teitel 1997). As we can see from the above discussion, these legal and quasi-legal processes are expected to address broader societal concerns during major political change than just accountability. In theorizing transitional justice and its mechanisms, de Greiff (2012) highlights two mediate goals of recognition and civic trust and two final goals of reconciliation and democracy. These goals promise a forward-looking point at which the state becomes a unified society. This includes recognition of victims as equal rights-bearers and citizens and encouraging trust in institutions through reaffirming norms that shun human rights abuses (de Greiff 2012). This raises the question of whether justice advocates use both the media and law to pursue such broader justice goals of reconciliation and democracy.

The language of reconciliation has become a global phenomenon as societies attempt to address past harms and has been adopted in post-conflict countries such as South Africa, South America, Northern Ireland and Australia (Wilson 2001; Hayner 2002; Hamber and van der Merwe 1998; Krog 1998; Little 2012; Schaap 2008). Reconciliation is a difficult concept to define but has been ‘invoked as short hand for compromises and bargains with the old regime that were perceived as necessary to stabilize newly democratizing governments, but often opposed by human rights advocates’ (Leebaw 2008: 102). There can be the interpersonal, individual or ‘thick’ model of reconciliation or the national unity reconciliation which encompasses the socio-political institutions of a country (Borer 2004; Crocker 2000; Wilson 2001).

20 Taking the political perspective, reconciliation can also be considered as a ‘processing of the wrong’ in a democratic public space where competing ‘truths’ can co-exist (Schaap 2008: 260; Arenhovel 2008). However, instead of healing a community, reconciliation can also be used in the name of actions that perpetuate the conflict (Little 2012; Moon 2006; Moran 2006). Despite these concerns, there is still a school of thought that does not discount reconciliation’s transformational capacity in its potential to create a discursive space for political negotiation. So, in contrast, others have highlighted how reconciliation has the potential to be used as an open concept that creates a rhetorical space in which a shared understanding of past harms and negotiations over how to address injustice can develop (Verdoolage 2008; Doxtader 2003; Renner 2014; Schaap 2005; Rae 2015). As Heylen, Parmentier and Weitekamp (2010) show, ‘holistic reconciliation’ is an incredibly complex and dynamic interplay of actors and processes. This suggests that the media may have a role to play alongside law in this democratic public space or rhetorical space where reconciliation processes play out.

These broader transitional justice goals such as reconciliation and democracy are expected to highlight the ‘rupture point’ between the harms of the past and the new political regime’s commitment to human rights of the future (Nagy 2008; de Greiff 2012; Cohen 1995; Huyse 1995). This is why prosecution is seen as ‘necessary to assert the supremacy of democratic values and norms and to encourage the public to believe in them’ (Huntington 1991). However, there also needs to be political reform so de Greiff (2012: 58) calls for the establishment of participatory procedures, that is:

The institutionalization of forms of political contestation that secures the space for voices to emerge and have a chance of swaying others. In other words, this calls not just for the establishment and strengthening of the rule of law as formalists conceive of it but also for the strengthening of democratic forms of collective problem resolution.

Yet de Greiff (2012: 35) acknowledges his normative conception does not assume that transitional justice can, in and of itself, achieve these goals. Thus, as we can see from this overview of legal and quasi-legal processes, there have been great expectations placed on the capacity of transitional justice to reconstruct a post-conflict nation into a liberal democracy. Equally evident in the critiques of these mechanisms is the ways in

21 which transitional justice is often seen as failing to fulfill its goals adequately. This literature shows us how such legal and quasi-legal processes often fall short at delivering the range of aims such as truth recovery, accountability, reconciliation, and political and social reconstruction in a way that meets the expectations of those affected by state crimes. This raises the problem of what exactly these legal limits are and why some view the media as necessary to engage with alongside law. Furthermore, as will be explored in the next section, the burden on transitional justice and its legal processes has become even greater as the scope of transitional justice has grown to encompass even more goals in even more contexts.

2.3 The Expansion of Transitional Justice

Transitional justice involves legal processes that are aimed at aiding the transition to a liberal democracy. In this case then, law becomes a state-building exercise. This change is usually considered as ‘a political and economic transition that is consistent with liberal and democratic commitments’ (Posner and Vermeule 2004: 768; see also McAuliffe 2011). The assumption is that transitional justice primarily occurs in non- democratic regimes that shift to the ‘idealized endpoint’ of democratization (Green 2012: 129; Sharp 2014: 7). As Zunino (2016: 212) notes, transitional justice characteristics include a ‘legalistic outlook, a state-centric approach, a preference for gradual change, support for liberal capitalism and a reliance on international governance institutions’. However, this characterization of transitional justice is not an unproblematic one. For example, a recent debate in the field is how to account for transitional justice mechanisms that are applied in liberal democratic societies. As Aoláin and Campbell (2005: 174) note about human rights abuses, ‘violations may be manifest in states that have experienced prolonged, structured, communal, political violence, even where the political structures could broadly be considered democratic’. This has prompted a discussion about what transitional justice means for established democracies addressing historical injustices inflicted by colonial regimes (Balint, McMillan and Evans 2014; Henry 2015; Winter 2013; Phillips 2015: Cunneen 2008). Much of this work has looked at Western democracies such as Canada, New Zealand and Australia.

An argument has also developed for a wider scope of transitional justice that includes economic, social and cultural issues (Sharp 2014; Arbour 2007; de Greiff and Duthie

22 2009; Laplante 2008). As Nagy (2008: 279) argues, to ‘focus on specific sets of actors for specific sets of crimes channels transitional justice towards a fairly narrow interpretation of violence within a somewhat artificial time frame and to the exclusion of external actors’. Meanwhile, Mani (2008: 253) questions whether the field can ‘afford not to concern itself directly with social injustice and patterns of inequality, discrimination and marginalization that were underlying causes of a conflict and that inflicted major suffering and victimization on vast swathes of a population?’ Miller (2008: 266) contends that the possible costs of ignoring such economic questions are an incomplete understanding of the origins of conflict; an inability to imagine structural change due to a focus on reparations; and the possibility of renewed violence due to a failure to address the role of inequality in conflict. Muvingi (2008: 163) takes this further to suggest that ‘social and economic grievances can be “powder kegs” that, if left unaddressed, threaten to blow up peace initiatives’. So transitional justice is now expected to address an expanded scope of injustices, types of transitions, political regimes and states.

By bringing settler colonial theory into conversation with transitional justice theory, Balint, Evans and McMillan (2014: 212) argue that drawing attention to historical injustices can position indigenous harms alongside other mass atrocities that require significant social, political, legal and economic transformation. Stover and Weinstein (2004) put forward a social reconstruction model that consists of security, freedom of movement, the rule of law, access to accurate and unbiased information, justice, education for democracy, economic development and cross-ethnic engagement. However, Sandoval (2014: 184) cautions us to remain realistic about the capacity for transitional justice to deliver fundamental social change, arguing that it happens when ‘social struggle is able to put forward a new dominant ideology inspired by radically different values to those present during the repression or the conflict’. This position asserts that transitional justice is just one process that can contribute to social change, which raises the question of how best can it do this within a predominantly legal framework?

As discussed above, transitional justice has been premised on the notion that legal processes can establish or restore rule of law and play a constitutive role in post-conflict societies. Teitel (2002: 6) argues that, ‘in its ordinary social function, law provides

23 order and stability, but in extraordinary periods of political upheaval, law maintains order even as it enables transformation’. McEvoy (2007) has highlighted how restoring rule of law has dominated transitional justice practice. Meanwhile, Brooks (2003) has described an ‘explosion in promotion of the rule of law’. However, in order to understand this continually expanding scope of transitional justice, there has been a shift in focus from law as central to post-conflict reconstruction to examine other non- state actors (Teitel 2008: 2). In light of this, McEvoy (2008) encourages researchers to go ‘beyond legalism’ and explore how other actors and knowledge can drive change. This builds on the work of Shklar (1964) who cautioned against ‘legalism’ at the expense of politics in the pursuit of justice and state-building. This is why, in his study of the Rwandan genocide, Mamdani (2014: 18) argues that the political nature of the crisis demanded a political solution. Indeed, McCargo (2015: 18) contends that redressing mass harm involves ‘acknowledging that transitional justice is ultimately politics in the guise of legalism’.

This section raises the problem of whether transitional justice has been too constrained by the legal model to be flexible enough in its scope to address underlying structural political, cultural and social harms that are particular for each post-conflict society. For example, Mani (2008) has highlighted the importance of a transitional justice approach that draws more on local knowledge and culture for building peace. Taking an empirical approach, McEvoy and McGregor (2008) demonstrate the value of researching transitional justice ‘from below’ to ensure it remains a contested space where local voices can be better heard and bespoke solutions can be emphasized over ‘off-the-shelf’ models. This is in contrast to the dominance of top-down studies on how international law steers transitions. However, these critiques do not necessarily eschew the legal model of transitional justice altogether. As McGregor (2008) argues, international law can be an evolving process that may be developed and generated by non-state actors. The next section discusses the shift to focus on bottom-up approaches and the question of how affected communities understand and shape transitional justice and its legal processes.

24 2.4 Taking a Bottom-Up Approach to Transitional Justice

The functions of transitional justice have been evaluated and critiqued extensively in the literature as discussed above. While the strengths and limitations of these transitional justice processes have been examined extensively, there has been up until recently little evidence of how affected communities have perceived these responses to state harm. Transitional justice mechanisms are often purported to be necessary forms of redress for those living in post-conflict societies. However, there has been a turn to researching the attitudes and experiences of victims and survivors building on the earlier work of Stover and Weinstein (2005) who looked at post-conflict reconstruction in Rwanda and the former Yugoslavia. This body of work has found that communities are often disappointed by the design, implementation and outcomes of these efforts. Some of these concerns include little consultation, the limited role given to victims in trials and in truth-seeking processes, the nature and location of trials, the constraints placed on truth commission mandates and capacities and the inadequacy of reparations (Pena and Carayon 2013; Hobbs 2014; Henry 2009; Shaw 2007; Jones, Parmentier and Weitekamp 2012; Begicevic 2016). While they may claim to be victim-centered, transitional justice mechanisms have often been viewed as external impositions over community and individual needs and priorities. Western models, national politics and international legal frameworks can be viewed as imposed agendas that do not often meet victims’ needs (Kent 2012).

As the field of transitional justice has grown, attention has increasingly turned to consider how best to empirically assess these processes and their impact on post- conflict societies (Van der Merwe 2008). Accompanying this has been a shift to studying the attitudes, perceptions and beliefs that victims hold about these mechanisms. One reason given is because ‘this constituency occupies a vital position, as victims’ past experiences constitute the main reason for questions of justice being on the political agenda’ (Baker 2010: 445). Robins (2010; 2012) argues that transitional justice processes can be driven by affected communities, rather than the priorities of elites and gives a voice to those who most need it. It is then, as Garcia-Godos (2013: 245) notes, that ‘victims move from being a subject of application of transitional justice mechanisms, to become actors in the political process of claim making and contestation.

25 It is also through victims’ rights that the agendas of accountability and justice can be shaped, revised, and filled with new content’.

However, researchers have been cautioned in their assumptions and approach to victim- centered studies. Firstly, the term is fraught as the lines can be blurred between who is victim and who is perpetrator (de Waardt 2016; Moffett 2016; Derluyn et al 2015). Therefore, choices have to be made about who is a victim, who is excluded from this category and which victims’ groups are collaborated with in the transitional justice project (Sajjid 2016; Garcia-Godos 2008; Madlingozi 2010). Research has also found little distinction in the attitudes towards transitional justice processes between victims and non-victims (Nussio, Rettberg and Ugarriza 2015). McEvoy and McConnachie (2012) have pointed out how scientific knowledge of victims’ needs can be socially constructed and politically manipulated. Importantly, Madlingozi (2010: 209) has concerns that transitional justice ‘entrepreneurs’ reproduce the ‘civilizing mission’ in speaking about and for victims. Thus, researchers must undertake this bottom-up approach with these sensitivities in mind.

Despite such challenges, empirical evidence about the expectations and attitudes of affected communities towards transitional justice is essential if the aim of such processes is to redress harm and successfully rebuild a society. As studies have shown, it is often the case that such aims and processes do not meet the needs of victims and may even perpetuate conflict (Kent 2012; Shaw 2007). Robins (2012: 103) has been at the forefront of identifying this problem in his attempts to ‘redefine the evaluation of transitional justice processes by permitting victims of violations to define its goals and then measuring the extent to which these goals have been met’. Arriaza and Roht- Arriaza (2008) promote identifying and supporting local level and bottom-up initiatives in social reconstruction. The aim of this type of evaluation is to use population-based data about attitudes and perceptions of transitional justice mechanisms to inform policy design and include community members in decision-making processes (Parmentier and Weitekamp 2013).

As we can see, the challenges that those who seek justice for state crimes face are substantial. In discussing how transitional justice attempts to redress mass harm, the limits of its legal mechanisms have also been highlighted. Most significantly, what has

26 been identified is the need for more research on how communities perceive the transitional justice mechanisms. As shown above, studies such as these can contribute to better planning and implementation of responses that meet community expectations rather than inflame tensions. What is also evident in canvassing the literature on transitional justice is the lack of inquiry into the media’s role and relationship alongside such mechanisms. In urging transitional justice to go ‘beyond legalism’ McEvoy (2007: 413) concludes that ‘law’s place as the core framework around which transitions from conflict are constructed is now assured. Such a context should encourage a more honest acknowledgement of the limitations of legalism and a greater willingness to give space to other actors and forms of knowledge’. The next section will discuss the few studies that have been done in examining the place of one of these non-state actors, the media, alongside transitional justice processes.

2.5 The Media, Conflict and Transitional Justice

Debate about the media’s role in conflicts and transitions grew more prominent in the 1990s when there was increased focus on the Rwandan genocide and the Balkans civil war. Studies in this field firstly looked at the role of propaganda in genocides and human rights abuses or the failure of media to report such atrocities (see for example Thompson 2007; Schimmel 2011; Baisley 2014; Kolsto 2008; Kurspahic 2003). The focus then shifted to examine how the media played a role in rebuilding societies after conflict. In their comprehensive review of the literature about the media and conflict, Schoemaker and Stremlau (2014: 182) found it ‘largely focuses around two main possibilities, its role in promoting peace, democracy and good governance, or its contrasting role in provoking violence and its susceptibility to political capture by autocratic governments’. Thus, many of the studies about post-conflict societies have analyzed how the media has reported on war crimes tribunals and whether this information is reaching affected communities (see for example, Golcevski et al 2013; Pham and Vinck 2011; Cole and Silverman 2013). The dominant paradigm in these studies is that ‘a free and independent media should be an integral part of such transitions and constructing a Western-styled media system should be a priority at the inception of international interventions’ (Schoemaker and Stremlau 2014: 185). However, they also note that there is insufficient evidence to support claims about the role of the media in conflict and transition as a democratizing force (Schoemaker and

27 Stremlau 2014). This section examines some of the key contributions to this emerging field with a focus on how the media has been understood to play a role.

Hakimi (2006) makes a ground-breaking contribution in which she sees the media as participants in the international law process. She writes that:

Communication is nevertheless essential for the international norms to have the force of law, in terms of their meaning for and intended effect on the relevant community. In the absence of institutionalized channels, international legal communications often occur through the open lines of the media. The media, in other words, fill the communicative gaps in the international legal process (2006: 4).

She also highlights how the media plays a role in helping to ‘establish both the limits of the lawmaking process and the audience's expectations concerning the policy content, authority and control of the legal norms. The media also play roles, to varying degrees, in the codification, application, invocation and termination of international legal norms’ (Hakimi 2006: 32). She gives the example of how the media was a participant in exposing the Abu Ghraib human rights abuses by ‘invoking and applying the relevant international legal norms, and in communicating the responses of the relevant international actors’ (Hakimi 2006: 7). Building on this work, Joyce (2010) has developed what he calls the ‘mediatization of international law’. He argues that international legal institutions rely on the media ‘for the purposes of publicity, to achieve greater transparency and in turn to enhance its systemic legitimacy and effectiveness’ (Joyce 2010a: 231). He describes the media as ‘a mechanism with the potential to shape responses, to assist compliance, to set agendas and to help to crystallize the formation of public opinion (2010b: 525). In relation to tribunals, Joyce (2010b: 231) highlights the media’s publicity and watchdog functions and how news- gathering ‘leads to momentum in political circles to pursue accountability initiatives, trials or truth commissions’. So, here we see the media conceptualized as a participant in applying legal norms, legitimizing legal processes and shaping public opinion about international law.

Price and Stremlau (2012) have also done important work in this field by developing a framework for analyzing the information environment in which media intervention and transitional justice occurs. They argue that the media can ‘serve as a space for elite

28 negotiation or the negotiation of political power’ (Price and Stremlau 2012: 1093). They observe how the press ‘often serves as a forum representing elite notions of what the nation-state is or should be. Competing versions of history frequently play out, and both political and ethnic identities may be more obvious than in everyday personal encounters’ (Price and Stremlau 2012: 1085). While highlighting how the media can be biased or pursuing economic interests, Price and Stremlau also point out how effective they can be as mediators. Thus, ‘they may, for example, seek a middle ground by providing a space for opposing sides or ideologies to debate and respond. Or they may provide important insights into government policies, dispel rumors, or explain reconciliation strategies’ (Price and Stremlau 2012: 1085). This analysis connects the media’s function as a forum for elites to the crucial goal of transitional justice that is reckoning with the past to rebuild a reconciled future. However, what this analysis fails to consider is how the media may be a space for negotiation in which victims, affected communities and the broader public may also negotiate notions of what the nation-state could or should be.

Laplante and Phenicie (2009; 2010) have taken an empirical approach in Peru to explore how the media’s coverage of transitional justice processes may help or hinder reconciliation in post-conflict societies. As they argue, ‘if reconciliation requires the building of consensus about the past – a collective memory – then the media plays a direct role in either creating democratic spaces for a tolerant and respectful national dialogue that enables this consensus or in further entrenching societal divisions’ (Laplante and Phenicie 2010: 208). From this perspective, the media is not just a public forum for debate but it can also have a significant impact on post-conflict reconstruction. Furthermore, they argue that ‘seeing as the media has the power to shape public opinion, the media can serve to mitigate or provoke the extremes in polarized societies, and thus the reaction to transitional mechanisms such as truth commissions, trials, and reforms’ (2010: 273). In light of this, Laplante and Phenicie (2010: 209) advocate the media temporarily suspend its norms of objectivity and balanced reporting of each side and take an ‘affirmative role in framing the news about the transitional justice process so they facilitate national dialogue that fosters the minimum consensus that human rights violations occurred and that they were wrong’. This case study is more helpful in considering the media’s role more broadly than a space for elite negotiation. It conceptualizes the media as a public forum for national dialogue. However, it is

29 confined to the one transitional justice goal of reconciliation and fostering consensus rather than considering how it may facilitate contesting views and claims from justice advocates.

The insights of lawyer Simone Monasebian who has worked on international tribunals and been a legal analyst for Court TV reveals how law’s officials view the media’s role alongside criminal trials. Court TV was an American cable network that broadcast legal documentaries, dramas and coverage of prominent criminal cases. In her reflections, Monasebian (2007) discusses how trial coverage can influence judges’ behavior in the courtroom and can also lead to discussions about wider legal and justice issues. For example, when analyzing former Iraq dictator Saddam Hussein’s trial on Court TV she discussed larger issues including prevention of genocide, restorative versus retributive justice, and the invisibility of women in the tribunal (Monasebian 2007). Here we can see the media’s potential to play a role in providing a forum for education on justice issues. She discusses how fellow lawyer Richard Goldstone ‘believes media coverage advances other important values such as official acknowledgement for the victims, diminution of denial, and establishment of a written history of events from which we can learn in the future’ (Monasebian 2007: 317).

Monasebian (2007: 320) exposes, too, the tension between law’s limits and the media’s capacity to overcome them. It is worth quoting her at length here to shed light on the differing perspectives of journalists and legal authorities:

A highly esteemed journalist suggested that war crimes courts have an affirmative moral duty to enter the publicity business even before trials: ‘I told the ICC Prosecutor that I know he has an enormous vault of photographic and video images of the atrocities in Darfur and that he really should release the evidence to the public and the press. If we had those visual images we would cover Darfur and the ICC more, and this would put needed pressure on the international community to stop the genocide. I do not understand why he is not doing this.’ I responded to his lament with the possible reasons why the prosecutor might not do so, such as confidentiality and integrity of evidence or that it might be frowned upon by the pre-trial chamber. The journalist responded, ‘But people are raped and dying as we speak’.

What Monasebian highlights here is how rules and norms regarding evidence can constrain law. Furthermore, these rules frustrate those who work in the media who believe that it is more important for the public to view these images and form their own

30 opinions about the evidence. Here, the media is understood by a journalist to be more effective at raising awareness about state harm than waiting for the legal courts to make a decision.

This section has shown how the media has been understood as a participant in conflict and transitional justice processes. It does this by potentially providing a democratic space in which communication gaps in international law may be filled, pressure builds for accountability mechanisms, political power and identities can be negotiated, reconciliation can be helped or hindered, citizens can be educated and an historical record of harm can be created. A key theme in this work is how the media has the potential to shape opinions about and responses to state crimes. However, no research has developed the idea of the media as a public forum during transitional justice processes in great depth and across several case studies. There is also no evidence about what affected communities believe the role and functions of the media should be. In other words, there have been no studies that have taken a bottom-up approach about the media’s role in post-conflict societies. In order to explore how this may be developed, the next section turns to a wider discussion of how the media has been understood as participating in a forum of public opinion.

2.6 The Media’s Role as a Public Forum in Liberal Democracies

Many studies, mostly drawn from US examples, have critically analyzed the mainstream news media’s role in liberal democracies. For decades, political communications theorists have tracked how the media and the political system have become increasingly interdependent in a way, they argue, that excludes citizens from democratic processes. These concerns have been directed towards examining how and why the mediatization of politics has occurred and its impact on the public. Lipmann (1922) coined the phrase ‘the manufacture of consent’ to describe how politicians were increasingly using propaganda to manipulate public opinion. In a more expansive view, Blumler and Gurevitch (1995) have taken a systems approach to analyze and explain what they call a crisis in communication for citizenship. By this they mean a process of depoliticization that places personalities and events over policies; an oversupply of oxygen for cynicism; a diminution of serving citizens’ interests; voter exclusion from public communication and having the press operate as a surrogate opposition (Blumler and Gurevitch 1995: 213-214). Cater (1959) criticizes the media for moving so far into

31 the centre of political processes that they can be considered the fourth branch of government. As he argues, ‘the reporter is the recorder of government but he is also a participant. He operates in a system in which power is divided. He, as much as anyone, and more than a great many helps to shape the course of government’ (Cater 1959: 7).

Marxist critiques of liberal democracy have included the media, which is viewed as a capitalist tool of ‘manufacturing consent’ to serve the commercial interests of the elite (Adorno and Horkheimer 1932; Chomsky 1980). In more recent times, neoliberalism has been blamed for greater global concentration of ownership, media conglomeration and hypercommercialism. McChesney (1999: 426) argues that ‘the wealthier and more powerful the corporate media giants have become, the poorer the prospects for participatory democracy’. This creates a tension between catering for advertisers and the audience with the news agenda. As Schultz (1998: 4) notes, the news has become ‘increasingly driven by the expectations of entertainment’. The need to make money can also hamper the expensive cost of investigative journalism that forms the backbone of the public watchdog role (Schultz 1998: 61). From this perspective, Curran (2005) argues the free media market has become a broken model. It limits the media being a check, not only on public power, but also private power as it becomes indebted to shareholders and big business (Curran 2005). Furthermore, the liberal political model neglects an increasingly cozy relationship between business and government and how this may limit oversight of state power (Curran 2005). So here we see the media playing a role that is allied with the interests of the government and big business rather than the public.

In contrast, the liberal political lens views the media’s role as serving the interests of ordinary citizens and believes freedom of expression underpins a democratic society. This principle has been legally enshrined in the Universal Declaration of Human Rights Article 19 and the International Covenant on Civil and Political Rights (UN General Assembly 1948; 1966). The tradition was based in liberal political philosophy, beginning with John Milton’s (1644) plea for an end to press censorship in Areopagitica. At the heart of the liberal tradition is the idea that a free media market means the press is not beholden to government interests. The media’s only loyalty is to the public, who pay for its services. This means the press can be at arm’s length from the state, giving it the freedom and power to hold authorities to account. So, the liberal tradition

32 positions the media’s role in democracy as the public watchdog. It is conceived as an institution to ‘shield and protect the individual from the excesses of the state and to facilitate the rights and liberty of the citizenry’ (Errington and Miragliotta 2011: 1). In line with this thinking, the press has also become to be known as the ‘fourth estate’. This term places the media as a key institution that acts as a check on the power of the parliament, the church and the judiciary (Carlyle 1840; Schultz 1998). In order to act as a check on power, McNair (2011: 18-20) proposes five functions of the media in an ideal democracy: informing citizens, educating them about the meaning and significance of facts, serving as a channel for the advocacy of political viewpoints, publicizing political institutions through investigative journalism and providing a platform for public political discourse. Similarly, Schudson (2008: 12) argues that democracies need ‘unlovable’ media because they inform, investigate, analyze, create social empathy, act as a public forum, mobilize people to act and publicize representative democracy.

This idea of the media as a public forum can be developed by Habermas’ influential conceptualization of the public sphere. Habermas (1964: 49) described the public sphere as ‘a realm of our social life in which something approaching public opinion can be formed. Access is guaranteed to all citizens’. It is a ‘discursive arena that is home to citizen debate, deliberation, agreement and action’ (Villa 1992: 172). The public sphere is free from the legal constraints of the state and is a space that mediates between society and the state. It is ‘only when the exercise of political control is effectively subordinated to the democratic demand that information be accessible to the public, does the political public sphere win an institutionalized influence over the government through the instrument of law-making bodies’ (Habermas et al, 1964: 49). It is in the public sphere where Habermas (1984) conceives of a ‘communicative ethics’ that can foster democracy and freedom. What this means is a ‘community of subjects in dialogue’ who would all have an opportunity to be heard and ‘the force of the better argument’ would usurp all other motives but the mutual search for truth (Habermas 1984: 24-25) In large public bodies, this dialogue is mediated through newspapers, television, the radio and internet and becomes public opinion. Habermas et al (1964: 49) define public opinion as ‘the tasks of criticism and control which a public body of citizens informally  and, in periodic elections, formally as well  practices vis-à-vis the ruling structure

33 organized in the form of a state’. Critical to the functioning of public opinion is that certain proceedings such as court processes are open.

However, Habermas (1964; 1991) has acknowledged that the public sphere has undergone a structural transformation from the liberating and democratic space it was in the 18th and 19th centuries when agitation for social change sparked the French and American revolutions. Instead, the rise of the social welfare state has meant that conflicting interests are in competition and large organizations strive for political compromise with the state in a way that excludes the public from proceedings. Consequently, ‘laws which obviously have come about under the “pressure of the street” can scarcely still be understood as arising from the consensus of private individuals engaged in public discussion’ (Habermas et al 1964: 54). The weakening of the public sphere is characterized by the rise of ‘publicity’ and ‘public relations’ to the detriment of the ‘court of public opinion’ (Habermas et al 1964: 55). This has been aided by the rise of mass media and commercial corporations that dominate the public sphere and turn citizens into consumers and spectators (Habermas 1991).

Despite this deterioration of the public sphere, it is still considered a useful concept, especially with the rise of new technologies that have transformed political communication (Goode 2005; Emden and Midgley 2012). The public sphere has also recently been adopted in the field of transitional justice as a framework to explore civil society’s role. As Ramirez-Barat (2014: 33-34) explains:

The notion of the public sphere can be especially valuable for understanding the fundamental role that civil society— and more important, the general public—plays in countries that are engaging in transitional justice processes. The notion of the public sphere is also useful for identifying the communicative and social conditions that must be in place to ensure that discussions among citizens about transitional justice in contexts that political conflict have socially disrupted can help to foster a culture of democratic debate.

Ramirez-Barat (2014) advocates this approach as it allows a wider perspective on justice processes that recognizes the role of communication in harming or helping official transitional justice mechanisms. As she argues, ‘the space of social communicative interactions itself acquires a unique role in transitional societies, as the space in which the public culture of a country can actually articulate the shift of norms

34 and values that transitional justice measures promote’ (Ramirez-Barat 2014: 34). Crocker (1998) agrees that public deliberation is a priority in transitional justice as it plays a key role in designing and choosing political-legal processes. Importantly, ‘public deliberation expresses the commitment to respect one’s fellow citizens and to enter into give and take with them so as to arrive at a democratic decision that all can live with, even though all do not agree with it’ (Crocker 1998: 500). As Ahmetasevic and Matic (2014: 234) found in their empirical work on Serbian media coverage of war crimes, ‘in countries emerging from a period of conflict and undemocratic rule, however, the public sphere is often as weak and fragmented as the society itself’. Compounding this problem is the fact that the media is often in need of major reform, especially if it was complicit in state crimes and has lost the faith of the public as it did in Rwanda (Longman 2014).

This literature demonstrates how the media has been understood as a key institution in liberal democracies. Its traditional role has been to act as a public watchdog and protect citizens from the excesses of state power. In the public sphere, the media also plays a central role in mediating public opinion between civil society and the state. It does so through its functions of informing and educating citizens, investigating, analyzing and publicizing government actions and acting as a public forum in which different viewpoints can be channeled. This debate has been recently taken up in the context of transitional justice and this study builds on this concept by taking a ‘bottom-up’ approach. Yet there is still little evidence yet about what the media’s role is alongside transitional justice’s legal mechanisms such as trials and tribunals. To address this gap, the next section will discuss the wider question of how the media’s relationship with law and criminal justice has been understood.

2.7 A Parallel Justice Forum: Media and Legal Processes

Many studies have focused on what effects the media has on audiences in terms of how the public understands law and crime (see for example Robinson and Levy 1986; Cohen 2002; Greer 2010; Jewkes 2015). Generally, the assumptions are that mass media transmits distorted information about the legal system, that people accept this misinformation directly and uncritically or that mass media accounts of crime can lead to negative behavioral changes (Ericson 1991). This ‘hypodermic needle’ concept in which the media directly injects passive audiences with an understanding of what the

35 legal system is has taken a firm grip in the literature, leading to fears the media undermines the law (Fox, Sickel and Steiger 2007; Sherwin 2000; Garapon 1996). For example, Sherwin (2000) believes the line between media and law has become too blurred. In his view, ‘what we are seeing today is no ordinary intermingling of law and popular culture, but a more generalized erosion of law’s legitimacy. This is what happens when law goes pop’ (Sherwin 2000: 5). He believes an unprecedented convergence means law is succumbing to the influence of public relations, mass advertising and fabricated media events. This has led to lawyers employing the strategies of public relations because ‘by gaining support in a “phantom” (or virtual) trial prior to and concurrent with the real trial, the prosecutors and defense attorneys seek to reap benefits inside the courtroom itself’ (Sherwin 2000: 147).

Greer and McLaughlin (2012) have been at the forefront of defining the phenomenon of a ‘trial by media’. They describe it as ‘a market-driven form of multi-dimensional, interactive, populist justice in which individuals are exposed, tried, judged and sentenced in the “court of public opinion”’ (2012: 397). This builds on Machado and Santos’ (2009: 148) definition of a trial by media as ‘the media frenzy following the discovery of a crime and which precedes the court trial. The media engage in a search to find the “truth” and uphold the public interest’. Greer and McLaughlin (2011: 27) have highlighted how a trial by media can subvert legal processes and invert the principle of innocent until proven guilty:

Due process and journalistic objectivity can give way to sensationalist, moralizing speculation about the actions and motives of those who stand accused in the news media spotlight. Judicial scrutiny of ‘hard evidence’ yields ground to ‘real time’ dissemination of disclosures from paid informants, user-generated content, and hearsay and conjecture from ‘well placed sources’. Since the news media substitute for the prosecution, judge and jury, the target may find themselves rendered defenseless.

They contend this form of extralegal punishment appeals to the public evidenced by increased newspaper circulation and website traffic (Greer and McLaughlin 2011). In line with Marxist critiques, this means a trial by media can be used to further commercial and ideological agendas (Greer and McLaughlin 2012: 398). Others have explored how the media can act as ‘the public’s proxy in the demand for justice’ (Reiner, 2001; Machado and Santos 2009: 148). Here we see again the tension between the

36 media’s role as acting to protect and mediate the public’s opinion and its own elite commercial interests.

Studies have also examined how a trial by media operates alongside legal trials. Karniel (2014: 117) contends that the media has developed into ‘a parallel forum where the contest between the prosecution and the defense over the guilt or innocence of an accused is carried out. The media also moulds the public’s opinion about the legal institutions and has a great impact on the public’s faith in these institutions’. Similarly, Machado and Santos (2009: 147) suggest that ‘the media sometimes exercise parallel functions of justice, potentially fulfilling in the eyes of the public a role that lies beyond the capacity of institutional justice’. In his historical work on 19th century trials in Scotland, Barrie (2009) found the media even named and shamed those who were found not guilty in circumstances when editors or magistrates expressed a belief the accused was released on insufficient evidence or legal technicalities. He argues that ‘magistrates and the media enjoyed a mutually reinforcing relationship that spoke not just to shared values but also to each other’s inherent support for what they regarded as “common-sense” justice, which was deployed through print when “legal justice” was perceived to have been thwarted’ (Barrie 2015: 351-352). Karniel (2014) urges caution against assuming the media can be a substitute for the judiciary as it lacks the tools, structure and power such as the ability to jail perpetrators. Yet, in his analysis of public figures on trial for human rights abuses he acknowledges that:

The media does have power and that reports about legal affairs can at times bring about a different public outcome to that reached by the courts. Sometimes, there is even a better outcome than what might have been reached otherwise. The court system, despite the clear advantages it has in being able to clarify the truth within a judicial setting, has deficiencies and sometimes errors do occur (Karniel 2014: 118).

A trial by media can also have an impact on or contribute to formal legal justice processes. So as Chagnon and Chesney-Lind (2015: 2) note:

Trial by media is important because it may function as a discursive flashpoint, upon which moral boundaries may be formed and reformed. However, it is also significant because it can impact official justice processes and larger social phenomena, for example by influencing actual police investigations and even providing a venue for informal, restorative justice practices.

37 Greer and McLaughlin (2012: 397) have discussed how a trial by media ‘reclaims “justice” from the courts and returns it to a networked citizenry’ in such a way that can lead to formal prosecutions and they argue ‘in that sense its democratic potential should not be overlooked’. Karniel (2014: 119-120) concurs with this argument, adding that the public trial is often no less important than the criminal trial because it ‘consists not only of defendants, but also of all the other institutions of a democratic society, among which are the police, prosecution, the judges and the courts as well as reporters and the media itself’. A powerful example of the democratic potential of a trial by media is explored in Simon Cottle’s (2004) research on the racist murder of black English youth Stephen Lawrence. He found the media coverage had the transformative effect of getting a nation to question injustice, cultural identity and racism. It led to a ‘mediatised public crises’ that upturned Britain’s comfort in its civil society and embroiled the police, judiciary and government (Cottle 2004: 2).

One way to explain this transformative effect is media witnessing theory, which describes witnesses in the media, witnessing by the media and witnessing through the media (Frosh and Pinchevski 2006). Thus, it explores the complex interplay of who can be responsible for harm when someone bears witness. While it seems impossible for a witness to atrocity to put into words what they have seen, it is also impossible for them to remain silent (Peters 2006). Yet, when they do speak, ‘to testify is thus not merely to narrate, but to commit oneself, and to commit the narrative, to others: to take responsibility – in speech – for history or for the truth of an occurrence’ (Felman 2000: 103-104). However, the media has also demonstrated a duty and a willingness to help shoulder this responsibility. Tait (2011) demonstrated how the media appeals to the audience to respond to witnessing. This shifts the burden onto the audience to be responsible for this witnessing. As Boltanski (1999: xv) noted, ‘when confronted with suffering all moral demands converge on the single imperative of action’. Thus, we can see how witnessing harm through the media has the potential to compel the public to feel responsible and take action to stop the suffering.

The studies in this section show how the media’s role alongside law is understood as facilitating public deliberation in which citizens can engage with, discuss and debate matters of legal justice. A key theme in this literature is how the media acts as a parallel forum alongside formal legal processes. An issue of contention is whether this is a

38 desirable phenomenon that serves the public interest by reclaiming justice, drawing moral boundaries and holding institutions accountable or whether it is driven by commercial interests and subverts procedural fairness. While there is an emerging consideration of how the media operates as a parallel justice forum alongside criminal justice trials, there is little analysis of this function in the transitional justice context. Furthermore, there is no evidence about how those pursuing justice view the relationship between media and legal processes.

2.8 Conclusion

This chapter has highlighted how the aims and scope of transitional justice have increasingly widened to encompass a diverse range of harms and contexts. It has discussed the strengths and limitations of legal and quasi-legal mechanisms to pursue such goals as truth-telling, accountability, reparation, reconciliation, and political, economic, cultural and social change. It shows how the limitations of transitional justice processes can fail to meet the expectations and needs of victims and communities in post-conflict societies. This has prompted a shift to focus more on bottom-up approaches that research how non-state actors, such as victims and civil society, perceive and participate in transitional justice processes. These limitations have also raised the question of how effective legal mechanisms can be in achieving these expanded demands on transitional justice.

Alongside this inquiry, there has been a growing examination of the mediatization of conflicts, political processes and criminal justice. So, it is pertinent that the media’s role in post-conflict societies and what this can tell us about transitional justice has attracted little scholarly attention. Given the media is considered to be a key institution in liberal democracies this is a critical research problem that needs further exploration. In particular, the literature has established how the media can be a public forum and a participant in legal processes and transitional justice. It has also shown how the media can operate as a parallel justice forum alongside the law. However, there have been few studies specifically on the relationship between the media and transitional justice. Furthermore, there has been no bottom-up analysis of how the role of the media is viewed alongside post-conflict processes. Therefore, this research contributes to this emerging field and aims to explore why justice advocates appeal to both the media and law. This thesis addresses the following two key research questions: what does the use

39 of the media by justice advocates tell us about the current limits of transitional justice? Secondly, how might transitional justice be productively expanded in light of these limits?

In order to do so, it will also address the following subsidiary questions:  What does justice mean to justice advocates?  How do justice advocates view the role of the law in pursuing justice?  How are transitional justice mechanisms understood by justice advocates?  How do justice advocates view the role of the media in pursuing justice?  How do justice advocates perceive the relationship between the media and transitional justice?

The starting point for understanding the limits of transitional justice through the lens of why justice advocates use the media is to study their experiences, beliefs and perceptions. This thesis explores how justice advocates understand the relationship between justice, media and the law in the wake of state crimes. Specifically, it questions the extent to which the transitional justice project has the capacity to provide a meaningful sense of justice through the current parameters of its legal processes. The following chapter discusses the methodological approach employed to explore how justice advocates conceptualize justice, media and law using in-depth interviews and textual analysis of court documents, media articles, memoirs and academic literature.

40 Chapter 3: Methodology

Chapter 2 demonstrated how the intersection between media, law and transitional justice has been conceptualized. However, what is missing from these studies is the perspective of how justice advocates view these relationships and what it means for them. Gaining insights into how post-conflict communities understand the media’s role in transitional justice is important. As discussed in the previous chapter, the needs and expectations of communities are often overlooked in the planning and implementation of transitional justice processes. Yet one of the purposes of transitional justice is to provide redress for victims. In focusing on the priorities of affected communities, it gives voice to victims and allows them to be part of the political process by helping to drive transitional justice processes. However, as highlighted in the previous chapter, there is still growing evidence about how justice advocates understand transitional justice and as of yet no studies done on how they perceive the role that the media plays. This thesis contributes to this research gap by providing a rich account of how justice advocates view the relationship between media and transitional justice. It aims to use these perspectives to interrogate what this relationship can tell us about the current limits of transitional justice. This chapter outlines the research design for how I will address these questions through the subjective experiences, beliefs, opinions and attitudes of justice advocates and analysis of key legal documents, memoirs, media articles and academic literature. It firstly describes my conceptual framework and how an interpretive approach, grounded in socio-legal studies, is used to explore what transitional justice and the media means to justice advocates. Secondly, this chapter justifies the use of qualitative methods and the choice of the three case studies. Finally, it describes the methods of data collection, data analysis and ethical issues.

3.1 Conceptual framework

My research is a socio-legal study that examines how justice advocates view the media and transitional justice. It relies on Cotterrell’s (2007: 1413) description of socio-legal studies as the ‘systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience’. This conceptualization situates the discipline as its own field of research rather than a sub-branch of either sociology or law. It also aligns with the perspective that sociology and law share the same concerns such as norms, rules, conflict, legitimate authority, civil rights, power

41 arrangements and the mechanisms of social control (Vago 1988: 2-3). Furthermore, socio-legal studies maintain an ‘intellectually open and methodologically inclusive approach to the study of law’ (Banaker and Travers 2013: 3).

In particular, my research takes an interpretive approach that seeks to understand the world through the meanings, beliefs and traditions that actors hold. This rationale aims to understand how actors experience the social world and what it means to them. Proponents of this approach reject the positivist notion of a given truth and instead aim to provide an intersubjective narrative. This approach originates with Max Weber (1991: 55) who stated that ‘interpretive sociology considers the individual and his action as the basic unit…in this approach the individual is also the upper limit and the sole carrier of meaningful conduct…hence it is the task of sociology to reduce these concepts to understandable action’.

Socio-legal scholars have taken up this approach to study the law through how individuals interact with each other, for example, in a courtroom. These researchers are influenced by anthropology and Geertz’s (1973) methods of collecting a ‘thick description’ of normative ordering. As such, they provide:

A counterpoint to analyses of law based on abstract legal theory and gave voice to the multiple ways in which people dealt with positions of dominance and subordination, exclusion from formal legal arenas, or negotiations surrounding their access to, and use of, law. They also marked a move away more generally, in the study of law, from the study of rules and institutional frameworks to more actor-oriented perspectives and the study of dynamic processes’ (Griffiths 2002: 2).

As Travers (2009: 116) puts it, ‘to understand law as a social phenomenon, therefore, requires investigating the ‘micro’-level of society: how individuals think about, or make use of, law in particular situations’. In my case, I seek to understand transitional justice by investigating how individuals use the legal system and the media following state crimes. However, this research is also guided by Cotterrell’s (1992: 13) assertion that law is both fact and value. In this way, ‘law as embodied in behavior and attitudes, as one of the social determinants of social action, is a social fact. But at the same time it is a realm of ideas to be understood in terms of the subjective meaning of those ideas for individuals living within a legal order’ (Cotterrell 1992: 12-13).

42

Bevir and Rhodes (2004: 130) have offered the definition that, ‘interpretive approaches start with the insight that to understand actions, practices and institutions we need to grasp the relevant meaning, beliefs and preferences of the people involved’. However, in order to explain people’s actions ‘we have to locate their stories within their wider webs of beliefs against the background of traditions they modify in response to specific dilemmas’ (Bevir and Rhodes 2004: 135). This approach posits that, to ‘describe people’s beliefs is to interpret their interpretations of the world’ (Bevir and Rhodes 2004: 157). The key question interpretivism asks is ‘what do or did these people believe themselves to be doing’ (Yanow and Peregrine Schwart-Shea 2006: 61). This embraces Cotterrell’s (2006: 5) argument that ‘the aim of a sociological perspective should be to broaden participant understandings of law, and of the social interpreted in law, so as to enable people to know better the society they live in and (amongst other things) to regulate it in a better informed way’. In taking an interpretive approach, my research is able to focus on the perspective of justice advocates.

Rather than taking an approach that seeks to emulate the natural sciences in studying society from the outside, Weber argued for a special method called ‘verstehen’ or understanding. Travers (2009: 116) describes it as ‘the natural ability we all have as human beings to get inside the head of other people and see the world through their eyes. This approach has often been associated with qualitative methods, particularly ethnographic studies and interviews. However, Bevir (2005: 178) explains ‘a concern to offer interpretations of interpretations does not necessarily favor particular methods. On the contrary, proponents of an interpretive approach might construct their interpretations using data generated by various techniques’. Therefore, the practice of triangulation seems to be crucial to the aim of comparing ‘bundles of narratives by assessing their success in relating facts to one another’ (Bevir 2005: 185). Hay (2011: 173) contends this use of triangulation occurs because ‘interpretivists tend to be profoundly sensitive to the inherent methodological difficulties of relying, in effect, on witness testimony’. With this in mind, my research relies primarily on in-depth semi- structured interviews and textual analysis of other data including news articles, memoirs and academic sources. Qualitative methods were chosen because they have a concern with meanings and the way people understand them, as well as patterns of behavior (Tesch 1990). This approach also allows for a richer amount of data in case

43 studies that involve a smaller amount of people (Patton 2002). Qualitative methods are also the best way to draw out people’s subjective experiences and the meanings they attach to them (Devine 2002).

3.2 Case studies

This research seeks to understand transitional justice through a qualitative empirical approach using the three case studies of Argentina, Sri Lanka and Australia. It draws on Yin’s (2014: 16) definition of a case study as ‘an empirical inquiry that investigates a contemporary phenomenon in depth and within its real-life context especially when the boundaries between phenomenon and context are not clearly evident’. Considering the features of a case study, Yin (2014: 17) also describes how it ‘copes with the technically distinctive situation in which there will be many more variables of interest than data points and, as one result, relies on multiple sources of evidence with data needing to converge in a triangulating fashion and, as another result, benefits from the prior development of theoretical propositions to guide data collection and analysis’. Thus, my research investigates the phenomenon of justice advocates using the media alongside law underpinned by the theoretical propositions of why such action is taken and what this tells us about the scope of transitional justice. In choosing what unit of analysis to be studied, this research is guided by Brewer and Hunter’s (1989) identification of six types: individuals; attributes of individuals; actions and interactions; residues and artefacts of behaviour; settings, incidents and events; and collectivities. My research focuses on the actions and interactions of justice advocates in relation to the media and transitional justice.

This research also relies on Stake’s description of a collective case study (1995). This extends what Stake (2005: 138) calls an instrumental case study to several cases in order to investigate a particular phenomenon, population or general condition. As Stake (2000: 437) defines it, ‘an instrumental case study is best used when a particular case is examined mainly to provide insight into an issue or to redraw a generalization. The case is of secondary interest, it plays a supportive role, and it facilitates our understanding of something else. The case is still looked at in depth, its contexts scrutinized, its ordinary activities detailed, but all because this helps the researcher to pursue the external interest’. Stake (2005: 138) advises that ‘they are chosen because it is believed that understanding them will lead to better understanding, perhaps better

44 theorizing, about a still larger collection of cases’. Here the choice of cases was made to advance understanding of the particular phenomenon of justice advocates appealing to media and the law and what it tells us about transitional justice.

Critiques of case studies have argued how they can contribute to empirical generalisation (Platt 2007). However, Punch (2005: 146) argues that a case study approach can produce generalizable results through conceptualising and developing propositions. By this, he means ‘the researcher develops one or more new concepts to explain some aspect of what has been studied’ and subsequently ‘puts forward one or more propositions – they could be called hypotheses – which link concepts or factors within the case. These can then be assessed for their applicability and transferability to other situations’ (Punch 2005: 146). In selecting a collective case study, my study aims to also go beyond simple description of how justice advocates engage with and understand the media and transitional justice to develop such concepts and propositions that may be tested in further research and contribute potentially generalizable findings. This accords with Punch’s (2005: 147) examples of ‘theoretical generalization’.

Stake (1995: 4) suggests that the first criterion for selecting case studies should be ‘to maximize what we can learn’. Even for collective case studies, Stake (1995: 6) advises that the opportunity to learn should take primary importance over balance and variety of attributes in the cases. Scholars have also highlighted the need to select cases that are accessible with sufficient data and willing participants (Stake 1995: 4; Yin 2014: 28). In collective case studies Yin (2014: 57) also argues that each case must be carefully selected to either be a literal replication (when similar results are predicted) or a theoretical replication (when contrasting results are predicted for anticipated reasons). With this in mind I selected Sri Lanka, Australia and Argentina as in all cases justice advocates engaged with the media when access to the legal system was limited, thus showing potential for literal replication. I selected cases that exhibited the following characteristics: the country had experienced a conflict; the state had officially responded to injustices; these responses had been critiqued as limited; justice advocates had made legal claims against the state and justice advocates had sought to publicise their claims in the media. However, in order to maximise the opportunity to learn I chose case studies that were also geographically, temporally, politically and culturally different. Argentina was chosen as a more historical example of a post-conflict society

45 that has contributed to global trends in transitional justice (Sikkink and Walling 2006). In contrast, Sri Lanka was chosen as a recent conflict that did not immediately experience a political transition so there was less emphasis on implementing accountability mechanisms (Anonymous 2011; Hoglund and Orguela 2011). Finally, Australia was chosen to reflect the recent turn in transitional justice studies to examine how this framework may apply to Western liberal democracies that had caused mass harm to indigenous people (Balint, Evans and McMillan, 2014; Henry 2015; Winter 2013). These characteristics will be described in more detail for each case study in the following chapter, including the nature of the conflict and mass harms, the state responses and the actions of justice advocates. A final point to make is that these case studies were also chosen with practical research considerations in mind such as the ability to access justice advocates in a low-risk environment who could speak English.

3.3 Sourcing participants

I conducted fieldwork in the cities of Washington in the US, London in Britain, Buenos Aires in Argentina, and Melbourne and Canberra in Australia where the justice advocates live, over three months between September-November 2013. The primary source of data was 21 intensive semi-structured interviews with the key actors involved in legal claims against the state who also engaged with the media. Purposive sampling was used to source participants who were identified as key actors in media articles, court documents and non-government organization websites. There was also a snowballing effect in which these participants suggested other interviewees for me to contact. All participants who agreed to be interviewed signed a written consent form stating they could be named in my research and publications.

The Case of Sri Lanka

I was able to interview 13 participants in the Sri Lankan case study whose biographies I will briefly outline. Two of the participants are founders of the non-government organization Tamils Against Genocide who supported the cases in the US, England and Europe. London resident Jan Jananayagam is a British Tamil banker, activist and politician who ran as an independent in the 2009 European Parliamentary elections. She was actively involved in the English cases and has written columns for the online English language news site Tamil Guardian. US resident Muthuthamby Sreetharan is

46 the founder of Tamilnet, an independent news site that has been banned in Sri Lanka. The site has been criticized as being a mouthpiece for the Tamil Tigers, however, US anthropologist Mark Whitaker has noted that reputable wire services such as Associated Press and Reuters have quoted verbatim from the site as its ‘articles are written in the same neutral, authoritative tone as the commercial Western press; because its facts and figures, double-sourced and carefully checked, are reliable’ (2004: 478).

I also interviewed Bashana Abeywardane who is the founder of Journalists for Democracy in Sri Lanka and was involved in organizing both the Permanent People’s Tribunals on Sri Lanka. He was a founder and later editor-in-chief of the alternative weekly newspaper Hiru in Sri Lanka, which was managed autonomously by the editors, however, was forced to flee the country amid death threats and is now a political refugee in Europe. He was featured in a documentary called Silenced Voices about exiled journalists who were trying to expose war crimes in their homelands. Another English participant was Doctor Kasipillai Manoharan who made a civil claims case under the US Torture Victim Protection Act over the murder of his son Ragihar who was killed by security services in Sri Lanka in 2006. He was forced to flee Sri Lanka after testifying at an inquiry and has been working with Amnesty International to push for an international investigation. In 2011 he presented a petition with 50,000 signatures and made his claims to the United Nations Human Rights Committee and his case has been covered extensively in the media. I also interviewed two representatives from the British Tamils Forum, general secretary Ravi Kumar and head of human rights Kana Nirmalan. The advocacy organization has 15,000 members and works to highlight human rights abuses and to advance the Tamil national cause through democratic means. The BTF also worked to support legal cases and engaged with the media and UN human rights members to publicize them.

In the US I interviewed Sri Lankan journalist Jayaprakash Sittampalam Tissainayagam who was detained by the Terrorism Investigation Division of the Sri Lanka Police in 2008. He was held without charge for almost 6 months and then indicted under the Prevention of Terrorism Act for intending to incite communal hatred through writing, and furthering terrorist acts through the collection of money for his publication. In August 2009 he was convicted and sentenced to 20 years’ hard labor. He launched a Fundamental Rights Petition soon after he was detained and also filed an appeal against

47 his conviction. Tissainayagam also engaged with the media to highlight his case and the subsequent outcry prompted US President Barack Obama to mention him as an ‘emblematic’ example of journalists being harassed. Following this, he was pardoned on World Press Freedom Day in 2010 and now lives in exile.

Two participants in Washington were lawyers who worked on the US cases against the Sri Lankan president and military leaders. Ali Beydoun is the director and supervisor of the UNROW Human Rights Impact Litigation Clinic at American University’s Washington College of Law. His work has included a lawsuit against Henry Kissinger brought by Chilean victims, representing US citizens incarcerated under illegal immigration detainers, representing political groups requesting US State Department reclassification of their foreign organization and advocating for Chagossians seeking redress for forced exile and torture. Attorney and human rights activist Tasha Manoranjan has worked at the US Department of Justice Human Rights and Special Prosecutions Section and also founded the non-government organization and advocacy group People for Equality and Relief in Sri Lanka.

In Australia I interviewed an activist and spokeswoman for the Australian Tamil Congress Sam Pari. Another participant was the daughter of Australian-Tamil man Jegan Waran who launched a war crimes case in Melbourne against the former Sri Lankan president Mahinda Rajapaksa. Brami Jegan is a former banker, SBS journalist and Senate Greens candidate whose family came to Australia as refugees. Both Pari and Jegan had returned to Sri Lanka to do volunteer work in the period leading up to the war, which they cited as the reason for becoming human rights activists and getting involved with the legal cases and media campaigns. I also interviewed Australian lawyer Rob Stary who had represented Jegan Waran in his court case against the former president. He has also defended three Tamils who were given good-behavior bonds after being sentenced to jail for providing money to the Tamil Tigers. The final participant I interviewed for this case study was Australian former diplomat and media commentator Bruce Haigh. He had worked in the Australian embassy during the South African apartheid era and helped banned newspaper editor Donald Woods escape from the country. He was posted to Sri Lanka in 1994 and resigned after his reports of human rights abuses were ignored. He has since given evidence to the Permanent People’s Tribunal on Sri Lanka and has written extensively on the conflict in the media.

48 The Case of Argentina

The Argentinean case study was more difficult to source participants as many of these justice advocates are now elderly or had passed away. I had also underestimated how difficult the language barrier would be; although many of the advocate organizations had websites in English, many of the members were not fluent. Due to this challenge I hired an interpreter through the Australian embassy to assist with sourcing participants. I followed Kvale’s (2007: 68) advice that ‘care should be taken to select an interpreter who is culturally acceptable as well as proficient in the language. The role of the interpreter is to assist, and not to take over the role of the interviewer or the interviewee’. There were several occasions when the interpreter and I had set up an interview for it to be cancelled or we did not have phone calls returned. Despite repeated efforts to make contact with potential participants, I was only able to secure four interviews. However, those I did speak to were quite central to justice claims.

The first participant I interviewed was the UN Special Rapporteur for Torture Juan Mendez who was imprisoned for a year after representing families of the disappeared and had engaged with the media to help find his clients. In 1977 he was expelled from the country and moved to the United States where he has worked for Human Rights Watch and the International Centre for Transitional Justice among several other organizations. I also interviewed the executive director of the Centre for Legal and Social Studies Gaston Chillier. The centre is a non-government organization that was founded in 1979 to stop human rights violations, document state crimes, and provide legal aid and assistance to victims’ families, especially in the case of the detained- disappeared. In the 1990s it expanded its agenda to include the enforcement of economic, social and cultural rights, strengthening the rule of law and democratic institutions. I also interviewed the national coordinator of the Service for Peace and Justice Luis Romero. This non-government organization was also established during the military dictatorship as an umbrella body to bring together human rights activists. It was also committed to defending political prisoners during the dictatorship and has similarly expanded its purview to include contemporary issues such as indigenous rights, gender equality and youth at risk. Finally, I interviewed the media coordinator of the family advocate group Grandmothers of the Disappeared, Clarisa Veiga. The organization was founded in 1977 with the goal of finding children who had been born

49 to women who were disappeared and then illegally adopted. In recognising that there was a limited number of semi-structured inteviews in Argentina I supplemented this data with a more extensive analysis of secondary sources. Given that Argentina is considered a highly prominent case of transitional justice there are many memoirs, collected testimonies and academic articles quoting key actors that I relied on to supplement these interviews and ensure the comparative study was more balanced.

The Case of Australia

The Aboriginal Tent Embassy movement was chosen as a source of participants as it led one of the most significant Indigenous political protest actions in 1972, which still continues today. It raised international awareness of injustices against Indigenous peoples, forced the end of assimilitationist government policies and put Aboriginal issues on the national political agenda when it established a camp on the grounds of Parliament House (Schaap, Foley and Howell 2013). The Aboriginal Tent Embassy has been particularly active about ‘finding justice’ for claims genocide and state crimes so justice advocates involved in these legal cases were particularly targeted as participants.

However, the Aboriginal Tent Embassy was also problematic in sourcing participants as there is only one surviving founder of the embassy and many of those who were named and gave evidence in the legal cases I focus on have passed away. However, I did interview the surviving founder Michael Anderson, a Gamilaroi man from New South Wales, who was a named prosecutor on the genocide cases in the late 1990s. He was one of four activists who established the Tent Embassy in 1972, he has worked for the Director of Public Prosecutions in New South Wales and was involved in drafting the Declaration of the Rights of Indigenous Peoples for the United Nations. Anderson is a chief advocate in the indigenous sovereignty movement and has been voted the head of state of new breakaway nation the Euahlayi People’s Republic. Another participant was photographer and film producer Eleanor Gilbert who documented the legal cases and helped run the media campaign and events. Her husband Kevin Gilbert was instrumental in re-establishing the Tent Embassy in 1992 and was at the forefront of media campaigns for sovereignty and justice. In Melbourne, I interviewed Robbie Thorpe, from the Krautungalung people of the Gunnai Nation, who was a named

50 prosecutor on the genocide case. He has initiated a number of legal actions, where he has argued that crimes of genocide have been committed against Aboriginal peoples throughout the history of the colonization of Australia. Thorpe also has his own radio show in 3CR and was a founder of the Aboriginal Information Service. Finally, I interviewed Lara Pullin who is a descendent of the Gundungurra Nation and is involved in contemporary legal cases with the Embassy. She is also a media spokeswoman for Sovereign Union of First Nations and Peoples in Australia. As in the Argentinean case I made multiple efforts to contact other supporters, lawyers and activists who had been involved in the case but also had email and phone contact unreturned or interviews be cancelled. In light of this limitation, I again relied heavily on textual sources to supplement these interviews with analysis of many media articles, memoirs, testimonies and court documents to balance the comparative study.

3.4 Semi-structured interviews

I conducted semi-structured interviews with 21 participants including 13 from the Sri Lankan case, four in Argentina and four Aboriginal Tent Embassy members. This form of interview can be described as open-ended questions and informal probing to facilitate a discussion of issues in a semi-structured or unstructured manner (Devine 2002). This is vital for allowing participants to talk freely about their experiences in a language they are familiar with. Semi-structured interviews are viewed as an important method for interpretive research as they ‘yield rich insights into people’s biographies, experiences, opinions, values, aspirations, attitudes and feelings’ (May, 2001: 120). It is also the most appropriate method ‘when seeking to understand people’s motives and interpretations’ (Devine 2002: 198). As Crow and Semmens (2008: 119) have noted, semi-structured interviews are popular in socio-legal research and ‘may be used where depth of study is of foremost concern, especially where it is important to know what meaning certain things have for people, or where one wishes to explore a process or sequence of events. Semi-structured interviewing is likely to be particularly helpful where you are looking at complex phenomena that may have developed over a period of time’. They also note the applicability of this method for researchers studying sensitive criminal justice issues (Crow and Semmens 2008: 119). In this case, semi- structured interviews allowed me to obtain a thick description of the motives, meanings, experiences and interpretations of the justice advocates who appealed to the media alongside legal cases following state crimes. This method also allowed participants to

51 discuss issues and opinions that were important to them and that may have been missed in the interview questions.

Denzin (1988) refers to this method as the non-schedule standardized interview, which is when certain information is required from each participant, but the phrasing and order of questions may vary. Or as Crow and Semmens (2008: 120) describe it, ‘the significant feature of the semi-structured interview is that questions, and the order in which they are asked, are not completely pre-determined’. However, this form of interview is not completely free-flowing and is shaped by the hypotheses developed during the research process and can contribute to hypothesis development (Crow and Semmens 2008: 120). In this way, ‘the semi-structured interview offers more opportunity to probe, typically with the use of follow-up questions…The semi- structured interview offers more opportunity for dialogue and exchange between the interviewer and interviewee. An important feature of this approach is that the interviewer has an understanding of the context of the project to facilitate alertness to significant themes’ (Noaks and Wincup 2004: 77). With this in mind, I designed my semi-structured interview around 10 questions pertaining to my research problem. I began the interviews by asking a general biographical question about how the participant had become involved in the legal cases and how they became engaged with the media. These 10 questions were:

1. What does justice mean to you?

2. Why did you pursue justice through the courts and media?

3. How did you engage with the media?

4. What is the role of law in pursuing justice?

5. What are the strengths and limitations of trials?

6. What are the strengths and limitations of truth commissions?

7. What is the role of the media in pursuing justice?

8. How do you see the relationship between the law and media?

9. What are the strengths and weaknesses of the media?

10. To what extent can the media be a forum for justice?

52 In order to ascertain what ‘finding justice’ meant to participants I then conducted a Q study. The Q method was invented in 1953 by psychologist and physicist William Stephenson as a tool to statistically measure and group subjective opinions, perceptions and attitudes through factor analysis (Brown 1996). What differentiates the Q method from other experimental tools is that the participants are doing the measuring, rather than being measured. The basis of this methodology is called the Q set. This is a number of cards with statements written on them and can be between 10 and 100 items. I chose to use 20 cards. The statements are derived from sampling and are usually driven by the research question. In this case, my question is ‘what does justice mean to advocates’? So, in the case of my research, the Q method helps us understand which transitional justice goals and mechanisms participants prefer. The sources of sampling vary but commonly used ones are interviews, literature reviews, media analysis and the cultural experience of the researchers (Stainton-Rogers 1995). It is particularly important to do a careful and methodical review of what people have said about the topic (Stainton-Rogers 1995). Therefore, I relied mostly on what advocates had said publicly about the issue of justice and in their own language. The 20 Q set statements are:

1. Self-Government 2. Reconciliation 3. Having The Truth Told 4. No Impunity 5. Being Identified As A Victim 6. Recognition Of Cultural Identity 7. Bearing Witness 8. Social Equality 9. Rights To A Homeland 10. Jailing Perpetrators 11. A Legal Judgment 12. Compensation 13. Democracy 14. Giving Testimony 15. Accountability 16. Protection Against Future Harm

53 17. Naming A Perpetrator 18. Letting The World Know What Happened 19. Recognition Of Harm 20. A Government Apology

The next stage in this methodology is called the Q sort. This is when participants are asked to shuffle the cards and rank the statements along a continuum such as ‘very like me’ to ‘very unlike me’ (Kitzinger 1987). Here, I used ‘this is justice to me’ to ‘this is not justice to me’ with ‘I’m not sure if this is justice to me’ as a neutral value. When given the Q set I advised participants to read through them all first so they had a full sense of the opinions they could choose before ranking them. The participant then arranges the statements into a grid that, in my research, ranged from -3 (indicating least agreement) to +3 (indicating most agreement) with a neutral category in the middle. There are usually one or two statements placed in the extremes and most are put in the centre, resulting in a forced normal distribution (Prasad 2001). It is this self-directed sorting that gives the Q method an advantage over other ways to reveal subjective meanings. This is because participants are applying their own understandings to the statements (Brown 1996). Given the small sample size of participants, the purpose of the Q study factor analysis was not to produce reliable results. Rather, the exercise was viewed as beneficial in setting up the interview, establishing rapport with participants and prompting reflection on the meanings of justice for each participant.

After fostering consideration of what justice meant to participants, the questions then turned to asking about how they perceived the role of both the media and the law in pursuing the form of justice they had identified, which became more of an exchange of dialogue. It was also during this part of the interview that I became more alert to significant themes and used spontaneous questions to follow up on insights that seemed most pertinent to my research questions. I tried to end the interview on a neutral topic, which is advised for participants discussing criminal justice issues as they may become emotionally taxed during the interview (Noaks and Wincup 2004: 83). The interviews took on average one hour to complete, which is the time I had informed participants it was likely to take in the consent form. However, there were several cases in which I met participants over a meal so I sometimes spent more time with them than the interview period. I was also invited to spend the day with Aboriginal Tent Embassy

54 participants at the Supreme Court in Sydney, Australia to witness a legal claim they were fighting against a local council in a test case of sovereignty. As Crow and Semmens (2008: 121) advise, ‘it is difficult to handle the rapport needed to conduct an interview, listen carefully to answers, and write notes at the same time. Respondents are unlikely to open up if they have to keep waiting for you to write things down, so some very brief aide-mémoires may be best’. In accordance with this view I used a digital audio recorder during the interview with the signed consent of participants while taking brief notes of particularly significant responses with key words. I transcribed the recordings myself within a month of conducting the interviews for content analysis.

A methodological concern for qualitative research is the extensiveness of the evidence and time spent in the field (Erickson 1986). This research comprised 21 interviews that lasted at least one hour, producing an extensive amount of data, including more than 200 pages of transcriptions. Data saturation is one indication of whether there is adequate evidence, however, there is disagreement in the literature about how many participants are needed to reach this point. Saturation is considered when the interviewer starts to hear the same information or themes (Rubin and Rubin 2005; Lincoln and Guba 1985; Douglas 1985). After 21 interviews, similar themes were emerging during the interviews, indicating that data saturation was occurring. Furthermore, a smaller number of participants ensures that depth and attention can be given to the individual justice advocates’ stories and voices that may be lost in larger sample sizes. In this way, it still provides a ‘thick’ description of the relationship between transitional justice and the media (Geertz 1973). However, given that there was a smaller number of participants and disparity across the three countries, I also conducted an extensive data analysis of secondary sources to ensure that a more robust comparison of the three case studies could be done.

3.5 Data analysis

This research takes into account that ‘one of the most important rules is that the researcher should never see the completion of the data collection stage as the point at which they begin to think about and plan for analysis. Advance attention to analytic requirements will influence choice of research sites and subjects and the questions that are asked of them. As far as possible researchers need to give advance thought at the outset of projects to the key themes that they wish to address and to have designed their

55 project accordingly’ (Noaks and Wincup 2004: 122). Therefore, the literature review and a basic reading of secondary texts such as media articles were analyzed prior to the interviews taking place to inform the research design and strategy. For example, some of the key concepts that emerged from this process included justice, truth-telling, bearing witness and accountability. I also conducted the data analysis of the interviews concurrently with the data collection of the texts. This means I reflected on my field notes after each interview to detect what emerged as strong or recurring themes and any connections they had with existing theory and literature. In this way, I was able to adapt my questions to test these themes during subsequent interviews with other participants to establish whether they agreed or disagreed with these developing understandings of justice, media and the law. However, while there was some agility as a result of this continual data analysis, I continued to ask my core research questions to all respondents.

The interviews were transcribed and analyzed soon after returning from fieldwork. A qualitative content analysis approach was taken to define concepts, map phenomena, create typologies, find associations, seek explanations and develop new ideas (Ritchie and Spencer 2002). It was essentially a process of detection that went through the process of familiarization, identifying a thematic framework, indexing, charting, mapping and interpretation (Ritchie and Spencer 2002). The analysis aimed to identify ‘patterns and processes, commonalities and differences’ (Ritchie and Spencer 2002). I used the NVivo software program to undertake the technical aspect of this analysis. Each transcript went through a basic coding where I identified and labeled themes as they emerged. Some corresponded to themes I had identified from the theory and literature, however, there were some that emerged as a result of the interviews. After creating a comprehensive index of themes I went through the transcripts again and broke them down by extracting all the relevant sections of the text that corresponded to the themes. The final key themes were: trials and truth-telling; political and social change; the functions of the media in transitional justice and the limitations of the media in transitional justice.

Therefore, this data was analyzed through a mix of deductive and inductive strategies. The deductive method of testing theories by hypothesis was necessary to discover whether the data corresponded with socio-legal and media theories. This research followed the qualitative style of deduction in which ‘the testing process will be less

56 formal and is likely to rely more on arguments from evidence and the manipulation of concepts and categories in textual data’ (Blaikie 2000: 164). An inductive approach was also used to detect any developing theories. This is because ‘in practice human reasoning is sufficiently complex and flexible that it is possible to research predetermined questions and test hypotheses about certain aspects of a program while being quite open and naturalistic in pursuing other aspects of a program’ (Patton 2002: 337).

Reliability pertains to the consistency and trustworthiness of research findings (Kvale 2007). Therefore, in order to ensure the validity of findings my research also engaged with a process of triangulation to cross-check multiple sources of data (Patton 2002). I ensured that cross-checking and corroborating facts with the other primary and secondary sources validated the experiences discussed in the interviews validated wherever possible. Given the smaller sample size of interviews, I was also intent on analyzing textual sources that quoted other justice advocates for the purpose of widening the data on what their experiences and perceptions were on ‘finding justice’ through media and the law, which are discussed below.

3.6 Content Analysis

The content analysis relied on media reports, court cases, legal documents, advocate websites and memoirs. This data was collected throughout the project but was analyzed thoroughly after the interviews had been conducted. I took a qualitative approach ‘to provide knowledge and understanding of the phenomenon under study’ (Downe- Wamboldt 1992: 314). In this case, the phenomenon was why justice advocates used the media alongside law. The function of this qualitative approach is to: define concepts, map phenomena, create typologies, find associations, seek explanations and develop new ideas (Ritchie and Spencer 2002). It is essentially a process of detection that goes through the process of familiarization, identifying a thematic framework, indexing, charting, mapping and interpretation (Ritchie and Spencer 2002). The analysis aimed to identify patterns and processes, commonalities and differences (Ritchie and Spencer 2002). Each document was categorized according to recurring concepts, ideas and events. In particular, this data was interrogated according to its ability to answer the research questions and deepen the interview data.

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Firstly, I used the Factiva media database to search for news articles that were relevant to the three case studies. My search criteria were quite broad initially in date range, source and terms of reference, as I wanted to capture a large sample. For the Argentinean case, my search criteria was ‘Mothers of the Plaza de Mayo’ and ‘justice’ dating back to the time of the military regime. This resulted in a total of 490 news articles from 1980. I also searched for ‘Grandmothers of the Plaza de Mayo’ and ‘justice’, which resulted in 347 news articles from 1983. For the Sri Lankan case study I searched using the terms ‘Sri Lanka’, ‘war crimes’, and ‘justice’ dating back to the end of the conflict in 2009, which resulted in a total of 1686 news articles. For the Australian case study I searched for ‘Aboriginal Tent Embassy’ and ‘justice’ dating back to 1988 and found 412 news articles. In keeping with the interpretive approach, I analyzed this data with the purpose of examining the attitudes, beliefs and experiences of justice advocates. Therefore, I did a preliminary analysis to narrow the number of articles down to those that quoted justice advocates directly to ensure a more specific focus in the content analysis.

I obtained court judgments on the Aboriginal Tent Embassy cases from the Austlii law database. I was able to obtain some court documents and indictments from the Tamils Against Genocide website and US Federal Court website. The Argentinean case proved more difficult to source media articles and court documents due to the language barrier. However, there were some testimonies from the Mothers of the Plaza de Mayo and Grandmothers of the Plaza de Mayo that were translated into English and provided key data on their perceptions of transitional justice, media and the law. Alongside these were memoirs and biographies of key actors such as Buenos Aires Herald editor Robert Cox, La Opinion editor Jacobo Timmerman and lawyer Juan Mendez who represented political prisoners that also provided rich sources of data.

I started with a basic analysis of these texts to identify themes that guided the research design and interview questions. A more thorough analysis of these texts was conducted once the interviews had been done to ascertain any connections or disjunctures. Using the NVivo software program, each document was systematically categorized according to recurring themes, concepts and events. Like the interviews, key sections of the text

58 pertaining to these themes were extracted, filed and cross-checked with other sources to test reliability.

3.7 Ethical issues

Research undertaken in the criminal justice or socio-legal field will often involve working with vulnerable groups such as victims. This means there is a need for the interviewer to be sensitive to the emotional impact of the experience on the interviewee (Noaks and Wincup 2004). As Yeboah (2009: 149) notes, ‘criminological researchers are continuously being called upon to make ethical judgments not just in studies involving offenders. Even where the studies involve victims of crime, ethical judgments must be made about the subject matter, what data can be collected and what should be avoided, how to ask the questions and what should go into the report, all with an inherent objective of avoiding the potential to hurt the victims in any way (perceived or otherwise)’. Therefore, this project was subject to strict ethical requirements under the University of Melbourne Human Research Ethics Committee.

Given my research explores the subjective experiences, beliefs and attitudes of participants who have witnessed conflict or have had loved ones killed, ethical issues were a central concern in the planning of my research design. Therefore, I successfully submitted a standard risk project application to the University of Melbourne’s Human Research Ethics Committee outlining the risks and how these would be managed. According to the university’s ethical requirements, I also supplied participants with a Plain Language Statement of my research and a Consent Form. I have since abided by the data storage and reporting conditions of the ethics committee. However, I have also been cognizant that ‘ethical literacy’ goes beyond the formal process of university approval and involves understanding and engaging with issues as they arise throughout the entirety of their research (Wiles 2013). In order to consider issues throughout my research I adopted a principalist ethical framework. Wiles defines this as an approach that ‘draws on the principles of respect for people’s autonomy, beneficence, non- maleficence and justice in making and guiding ethical decisions in research’ (2013: 14). This framework respects informed consent, the responsibility to do good and avoid harm and ensuring the benefits and burdens of research are distributed equally (Wiles 2013: 14). However, I was also guided by an ethics of care approach that strives to act

59 in a way that benefits the research participants (Gilligan 1982; Mauthner et al 2002; Held 2006). In this way, I followed Kvale and Brinkman’s (2009) assertion that the aim of qualitative social research involving interviews should be both to produce scientific knowledge and to contribute to ameliorating the human condition.

The greatest risk in my research was that participants might have become emotionally distressed during the interviews. This is common in qualitative research when the topic is considered sensitive (Lee 1993). However, the nature of the research questions enabled me to manage this risk to have minimal impact on the participant. Firstly, the interview questions were carefully designed to avoid personal accounts of the conflict so as to minimize distressing memories. The questions were formulated only to expand on public statements the participants had made already. Furthermore, the questions were focused on their perspectives of the relationship between the media, justice and law rather than the conflict itself. I informed the participant before the interview that they did not have to answer any question they were not comfortable with and could stop the interview at any time. The participant could also have a support person present during the interview. Before beginning the interview I prepared a contact list of additional support, including local counseling services, which could be given to the participant if required.

Although my interview was designed to avoid personal accounts of the conflict, I remained open to any desire the participants had to tell their stories fulsomely about what they had witnessed or experienced, which they often did. This was in recognition that many victims do want to tell their stories as part of emotive, political; legal or moral expectations of the future (Stanley 2012: 13). Or as Ewick and Sibley (1995) put it, the process of storytelling becomes a social practice that demonstrates cultural values, power relations and aspirations. Indeed, my own hypothesis and findings show that an important part of engaging with the law and media is to tell the truth and let the world know what happened. Therefore, I ensured that participants had the time to tell their story how they wished to. I was also aware of this during the writing of the thesis and included some lengthy personal stories and kept extracts of participants’ answers long rather than editing them too much and avoided paraphrasing.

60 Finally, measures were undertaken to ensure that justice advocates understood the nature of the research and freely agreed to participate. Therefore, informed consent was established and maintained throughout the research process. All potential participants were provided with a Plain Language Statement. In accordance with university guidelines, it clearly explained the nature of the research project, its purpose and how the research would be used for a PhD and associated publications and presentations. The Plain Language Statement and Consent Form were translated into Spanish for potential Argentinean participants. To ensure participants maintained control over their level of participation throughout the process I advised them to take breaks and stop the interview as needed, could skip any questions and that they could withdraw from the project at anytime. A consent form that repeated these points was discussed and signed before the interview began.

3.8 Conclusion

Overall, the research methodology was designed to meet the purpose of establishing an insight into the experiences, beliefs, perceptions and attitudes that justice advocates had towards transitional justice and the media. This was primarily drawn from the interviews and supplemented by a textual analysis of material such as media articles, memoirs and court documents. These insights will now be detailed in four findings chapters that have been divided into the key themes that emerged from the literature and data: trials and truth-telling; political and social change; the functions of the media in transitional justice and the limitations of the media in transitional justice.

61 Chapter 4: The Limits of Trials and Truth-Telling

The justice advocates in this study emphasized that ‘finding justice’ was a key motivation for making legal claims against the state. Yet there are varying definitions and approaches to how we may understand what justice means. Justice is understood in the Western liberal tradition to be based on a retributive model of trials and punishment (Findlay and Henham 2005). On the other hand, the restorative justice model promotes other mechanisms, such as truth-telling, as a way to reconcile people and bring peace back to a post-conflict society (Parmentier, Valiñas and Weitekamp 2010; Klamp 2016; Tutu 1999). These two mechanisms, trials and truth-telling, have been central to the transitional justice project, as was detailed in Chapter 2. Also discussed in that chapter was how each of these two legal processes can often fail to meet the goals they are designed to achieve for affected communities. This chapter contributes to this body of critical scholarship by addressing the question of how and why justice advocates respond to the limits of trials and truth-telling by using the media alongside law.

In this chapter I locate and analyze these dynamics in the three case studies: Argentina, Sri Lanka and Australia. Each case study section begins with an overview of the nature of the conflict and what transitional justice measures have been taken to address the harm in that particular context. This is not intended to be a comprehensive account, but rather a starting point to highlight how and why certain justice advocates have responded to these mechanisms of trials and truth-telling in the way they have. It analyses the current limits of transitional justice processes and, in doing so, helps establish why justice advocates appeal to the media. It finds that these justice advocates view the law as critical in transitional justice as it has the capacity to facilitate official and legitimate responses to mass harm. However, it finds, too, that legal processes often fail to meet expectations of justice advocates in providing accountability and a space for victims to tell their stories. It shows that when these limitations come to the fore, justice advocates try to shift and push the boundaries of law by launching their own legal claims and appealing to the public sphere.

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4.1 Pursuing Judicial Accountability: The Case of Argentina

Argentina has been considered a key case study in transitional justice, employing many of the legal and quasi-legal mechanisms since the military dictatorship that began in 1976 ended in 1983. It has been documented that there were nearly 9000 deaths and disappearances in this period although human rights groups estimate that it could be up to 30,000 (National Commission on Disappearances 1986; Hodges 1991; Brysk 1994). There has been a truth commission that produced a best-selling report Nunca Mas (Never Again), successful claims heard at international courts, the offer of compensation, establishment of memorial sites and top army leaders have faced trial after amnesty laws were overturned (Bonner 2005). In 1995, human rights activists began pressuring the courts to order the truth be revealed in several high profile cases of the disappeared including two missing French nuns and this innovated the use of ‘truth trials’ (Mallinder 2009: 96). Soon after the military regime ended, President Raul Alfonsin also demanded trials of responsible military officials under Decree 158. These trials began in 1985, however, following several military uprisings, the Congress passed a law called Final Point in 1986 to restrict proceedings and in 1987, Due Obediance which exempted leaders from prosecution. These pardons were continued under President Carlos Menem’s authority in 1989 and 1990 (Bonner 2005). Although the Grandmothers of the Disappeared were able to pursue their claims of kidnapping babies through the national courts, other victims and non-government organizations turned to international jurisdictions such as the Inter-American Court, which led to the state paying reparations to former political prisoners and families (Bonner 2005). In 2001 the Federal Court found the amnesty laws were unconstitutional and in 2003 the Kirschner government revoked the amnesty legislation (Brysk 2009). As of October 2011, the Center for Legal and Social Studies states that 379 cases were under judicial investigation or being tried in court, while of 1774 alleged perpetrators, 749 were facing charges for these crimes, and 210 had been convicted. In this way, Argentina has led the way in innovating key transitional justice mechanisms and contributed to global trends in post-conflict societies (Sikkink and Walling 2006). These official responses were made following justice demands from the families of the disappeared who organized into human rights groups. As the country transitioned into democracy, these demands have shifted from wanting disappeared children returned, to knowing the truth,

63 to holding trials. While Argentina has been innovative in its responses, it has also shown how transitional justice measures are subject to political will.

Amid the chaotic rule of the elected Peronist government, which was struggling with economic strife, guerrillas from the Left and commandos from the Right, the Argentine military took power on March 24, 1976 in a coup. With a population weary of instability, its armed forces began a crackdown that touched on every aspect of society with support from a number of citizens, agencies, institutions and the media (National Commission on Disappearances 1986; Bouvard 2002; Crenzel 2012). In an ominously worded Process of National Reconstruction, the regime systematically worked to repress any opposition in a campaign of state terror. Its most effective and horrific method was to make those it perceived as subversive desaparecido – the disappeared. Those in the firing line were left-wing guerrillas, political dissidents and anyone considered a socialist including trade unionists, students and journalists (National Commission on Disappearances 1986; Osiel 2001). The families left behind were unable to get information about their loved ones from state authorities, even when submitting a judicial writ of habeas corpus. The highly secretive nature of this regime of terror meant that although it was common knowledge to Argentineans and even the world, there was little evidence to satisfy a court of law as the military had destroyed much of the documentation (Osiel 1986). So, in the early days of the transition to democracy, we can see how there was a large gap between knowledge and acknowledgment of state crimes.

The issue was also hidden from the wider public because of the government’s control over the media. Soon after the coup the junta had declared ‘it is forbidden to report on, or make reference to…subversive incidents, the appearance of bodies and the death of subversive elements and/or members of the armed security forces unless these are announced by a high official source. This includes kidnaps and disappearances’ (Boff 1991: 83). According to the report by Argentina’s National Commission on the Disappearance of Persons (CONADEP), 1.6 percent of all disappeared persons were journalists. It is clear from the report that the state was directly targeting journalists. As it states, ‘there was nothing casual or mistaken about the fact that the number of victims in proportion to the number of professionals working in this field was extremely high’ (1984: 362). There were also other less lethal, yet intimidating tactics used such

64 as taking over the Argentine Journalist’s Federation, expelling foreign correspondents and burning media deemed as ‘subversive’ literature. These tactics worked with about 400 journalists fleeing the country (Knudson 1990). Some, who stayed, such as Francisco Eduardo Marin of La Nacion, were sacked from their newspapers because of their political views (Asociacion de Periodistas de Buenos Aires, 1987: 110). As Argentine journalist Graham-Yooll (1986: 107-108) reflected, ‘the bally-hoo of press freedom lost some of its momentum in such situations. [...] The immorality of self- censorship became less reprehensible with the growing number of journalists killed’. Another journalist Uki Goni (quoted in Carlson 1996: 62) added that, ‘in a situation like that there’s no need for them, I suppose, to order the press to be silent. It’s enough for them to know that it’s best not to carry the stories, because you just kidnap a couple of journalists and the message gets across pretty fast. So I think it was out of fear that everybody decided to turn a blind eye. The fear was generalized throughout society. It wasn’t just the press’.

Breaking The Junta’s Veil of Silence: Mothers Search for the Truth

As more Argentineans disappeared without a trace, the more desperate the search became for the mothers of these sons and daughters. Their efforts brought these women into contact with each other at the governmental agencies that gave them no information. In April 1977 they arranged to meet at the Plaza de Mayo in front of the presidential palace Casa Rosado to make a public demand for answers. It became a weekly meeting every Thursday afternoon and the fourteen mothers who first demonstrated saw their numbers swell to 3000 (Hernandez 2002: 398). They still continue to this day in circling around the Plaza. The Mothers of the Plaza de Mayo became the only group to openly challenge the regime and their movement has become internationally renowned. Yet, they were not sophisticated advocates with a manifesto. As Simpson and Bennett (1985: 16) attest, ‘they were unremarkable activists from modest backgrounds who dressed sensibly – the distinguishing features of their appearance were the placards around their necks with details of their children and a symbolic white nappy as a headscarf’. Guzman-Bouvard (1994: 1) describes the mothers as a group of middle-aged housewives with little education or political experience who were ‘filled by anger and with extraordinary courage’. This helped make their public demands highly effective. This also shows how justice advocates who experience this extreme oppression of

65 knowledge and acknowledgment can respond by making their claims in the public sphere.

The strategy of the Mothers was to make their cause as visible as possible. As Kaiser (2008) describes, they staged demonstrations wherever they could be witnessed in a theatrical style, they posted life-sized silhouettes symbolizing a child on walls throughout the city and they painted gigantic white headscarves on the streets where military parades took place. They also turned to the media to break the silence about their children and publicize their habeas corpus writs. In frustration, they filed a collective habeas corpus petition on behalf of 159 missing people and published a paid ad in the daily newspaper La Prensa in which they listed 237 of the disappeared and demanded an explanation from the government (McManus 1991: 86). Following a second planned ad, twelve of the Mothers were kidnapped and remain disappeared today. Yet, the Mothers ran the letter and held a press conference to which four foreign correspondents turned up to hear their appeal for the truth (McManus 1991: 87). The Grandmothers of the Disappeared have also used the media to try and find the babies who were taken when their parents were in detention and given to military families. It is believed 500 children suffered this fate and, of these, 87 have been located and connected with their biological families (Abuelas de Plaza de Mayo 2014). The Grandmothers’ campaign has been focused on the issue of identity and they have used posters, printed ads, radio spots, television commercials and celebrity endorsements to promote their campaign (Veiga Interview, November 2 2013).

So, we see how justice advocates have appealed to the media alongside their legal claims of habeas corpus in response to when law becomes limited at giving them knowledge about where their relatives were. This active engagement with the media helped these victims’ groups fight for memory, truth and justice (Burchianti 2004). During the course of their mobilization, these three elements have proven more important at different times. It is also important to note that throughout transitional processes in Argentina there have been tensions between personal and collective notions of justice. This was most evident in the 1986 split in the leading human rights group into the Mothers of the Plaza de Mayo’s Founders’ Line and the Association of Mothers of Plaza de Mayo . The recovery of bodies was a key issue that divided the group when the Founders’ Line accepted government moves to repatriate remains and

66 offer compensation, while the Association held out for accountability (Goddard 2007). The Founders Line was and remains focused on the past and memorialization while the Association is continuing to make social justice demands for future generations and this has affected their presence in the public sphere (Goddard 2007).

However, at the beginning of this movement the demands focused on knowing the truth of where their disappeared relatives were. During this period the Mothers placed advertisements in the newspapers one of which read: “Mothers and Wives of the Disappeared: We are only asking for the truth’ (quoted in Hernandez 2002: 402). One mother Marta (quoted in McManus 2004: 87) said: ‘We want our sons, our husbands, our fathers. We don’t ask more than the simple truth. But here that is a crime’. One of the founders of the Mothers of the Plaza de Mayo Hebe de Bonafini (quoted in Hernandez 2002: 401) said: ‘We think that to be able to tell the truth, as difficult as it might be, to be able to face the powerful without violence, to face them as we do, gives us strength, a different kind of power, not their kind’. So it appears that some justice advocates believe that truth-telling is a powerful non-violent weapon to fight for justice against the state. There also appears to be the perception that the truth has become ‘criminalized’ under the military.

In 1977, as it became clear that the regime would not co-operate with their demands the Mothers began appealing to the international media in a bid to get the world to help put pressure on the state. Marta (quoted in McManus 2004: 81) told a foreign reporter: ‘This is why I insisted that you should come. We also asked other members of the international press. And Argentine journalists as well, although without any illusions. It is crucial that the whole world hears our anguish and helps us. Alone we are nothing’ . So during the conflict, the calls for truth-telling were aimed at having relatives reappear and these demands were about the truth of where they were being held. This last statement also shows that some of the mothers felt they needed ‘the whole world’ to help pursue justice and the truth about where their relatives were. This suggests they engaged with the media to expand their claims to the global public sphere.

As time passed, it seems these demands became no longer about having the disappeared come back alive, but to discover how their relatives had died. For some mothers, they expressed how it was critical to know who was responsible for their child’s death. One

67 mother, Esther Aracela Lado de Sanchez, (quoted in Mellibovsky 1997: 48) said in her testimony in a collection called Circle of Love Over Death:

Of each missing individual, they know the story, they know what they have done, they know where they were thrown, they know how they were killed. And they must tell us…I must know who took him away. I have always had the idea in my mind that I really want to know who abducted him, why they abducted him, who gave the order, who gave the order! How I would like to know who gave the order!

For another mother, Carmen Robles de Zurita, (quoted in Mellibovsky 1997: 69) it seems this search for the truth went beyond discovering who was responsible for the death of her child and encompassed the knowledge of all the mass harms that had occurred. For example, she said:

In spite of everything I am going to keep on asking for justice, I am going to keep on marching, because I want to know who is the guy who gave the order, who pulled the trigger and where…and where they threw the bones of each and everyone of the disappeared. Of each and every one of the disappeared!

What this comment also demonstrates is the intense determination in appealing for truth-telling that these mothers feel. As Cohen (1995: 19) notes, ‘a more specific drive behind truth-telling is the special sensitivity of victims’. In many other stories in this collection of testimonies there is the expressed drive to ‘keep on fighting’ for the truth, ‘demanding answers in the name of justice, because it is our right’ and having the protest continue ‘because the injustice continues’ of getting no answers to their claims for knowledge (Mellibovsky 1997). The Grandmothers of the Plaza de Mayo have also shown this determination to pursue truth and knowledge. In their search for children who had been taken from the disappeared and given to military families the Grandmothers have gone to great lengths to confirm these true identities, even at the risk of impinging on the right to privacy. Lazzara noted, the Grandmothers ‘have taken a more stalwart position that aims to establish truth and justice at all costs. In fact, in 2007 the Grandmothers managed to have a law passed—the “DNA Law”—that requires individuals potentially identified as stolen children to submit to DNA testing even if they would prefer not to do so’ (2013: 328). This indicates how crucial official acknowledgment, backed up by a legal process, is to some justice advocates, particularly when there is ongoing silence and denial from the state.

68 The Critical Role of Law in Making Truth-Telling Official

In his view, justice advocate Juan Mendez said that the law must play the leading role in transitional justice in order for truth-telling to be official:

In Argentina at least, truth-telling was not conceived as a substitute for justice. The truth-telling I’m talking about is some sort of official truth-telling that is not only knowledge but also acknowledgment in which the state comes clean with what the state has done (Mendez Interview, October 23 2013).

This suggests that justice advocates may perceive law as the primary tool for official knowledge and acknowledgment. Balint (2012: 204) has argued that official acknowledgment can be a space of mourning for victims that is also crucial for the state as it makes injustices part of its history. She identified how law is necessary to provide this official acknowledgment in that it ‘moves it from being possibly empty political statements, to having urgency, and consequence. It also moves acknowledgement into the realm of justice’ (Balint 2012: 204). Mendez also discussed how it was the state that must tell the truth about these state crimes (Mendez Interview, October 23 2013). Therefore, it appears that, for some justice advocates, this truth-telling as justice must extend accountability beyond individual perpetration of human rights abuses to detail the systemic nature of these harms. However, and importantly, Mendez said he does not believe that truth-telling can be a substitute for justice and should not be associated with impunity or amnesty. This indicates that truth-telling should be the first step in the justice process and supports arguments that truth needs to be linked with substantive measures such as prosecutions or compensation (Hayner 1994; Roht-Arriaza 2006; Daly 2008).

When the dictatorship ended in 1983 the new president Raul Alfonsin established the National Commission on Disappeared People, which collected information about the mass atrocity and delivered its best-selling report in 1984 called Nunca Mas. As more information emerged through the truth commission, it seems the focus for the Mothers shifted from attaining knowledge to letting the world know what happened to relatives. Mother Marta Vazquez (quoted in Mellibovsky 1997: 101) commented that:

Even if during this period we failed to obtain the results we were seeking – our children’s reappearance alive – I believe we have obtained quite a bit. We have

69 managed to spread the knowledge of the horror we have been living under for so many years, the massacre that’s taken place, this genocide. We have let our country and the whole world know what has happened here. And I think this is quite a bit.

Anthropologist Margaret Burchianti observed during her work with the Mothers that their weekly marches at the Plaza de Mayo were also a way to keep the memory of those who disappeared alive in the country’s collective consciousness. She wrote, ‘Carmen told me: “When I march at the Plaza, I am telling the world what happened in Argentina”’ (Burchianti 2004: 140). What tracing the Argentinean experience shows is how the Mothers’ marches were not just targeted at getting the attention and support of local public opinion. Rather, it seems the intention was to find a much wider national and global public sphere. At first, this was to put pressure on the government to release the detainees, then it escalated to public demands for knowledge about the fate of their relatives and finally it became an act of memorialisation to let their country and the world know what happened. So, even though there has been both a legal and unofficial acknowledgment of these atrocities, this indicates there is a desire to publicize it to a wider audience through an unofficial forum such as the media. This suggests these legal processes have been unsatisfactory in truth recovery.

The Argentinean truth commission caused division among justice advocates who were critical of its ability to hold those responsible to account. Instead, it seems that some advocates saw it more as a space for victim testimony. Humphrey and Valverde (2008: 92) have argued that ‘the stories of suffering told by the victims, rather than the facts of the crimes of individual perpetrators, were put at the centre of public truth finding…In other words, the effects of violence rather than causes of violence were made the centerpiece of the project of national reconciliation’. This accords with the Mothers’ perceptions that the Argentinean commission ‘revealed and broadcasted the atrocities performed during the decade of the ‘70s but it wasn’t the right instrument to investigate the crimes thoroughly or to pronounce judgment on the methods used to exercise terror on the Argentinean people’ (Mellibovsky 1998: 166). Brysk (1994: 70) observed that, the Mothers’ hardline opposition to the truth commission ‘marked the beginning of post-transition divisions between those human rights movements willing to work within the system and those that chose to continue their role as outsiders’. So, although the commission was supposed to be a space for victims to tell their stories,

70 some justice advocates still said they found it limited in revealing knowledge of the crimes or underlying causes of the violence.

Justice advocate Juan Mendez also discussed how some victims’ groups viewed the truth commission as a way for the state to avoid holding itself to account. He stated that Argentinean justice advocates ‘think truth reports are not only not justice but they are against them because they see them as a poor substitute, an escape clause for governments not to do the real work of justice’ (Mendez Interview, October 23 2013). However, Mendez said that international law has developed so that both truth and justice can be encompassed in official responses to mass harm. He put it that: ‘I think the legal standards in international law have evolved towards demanding an affirmative obligation on the state to investigate, prosecute and punish and to tell the truth so that the international law at least does not see these things as conflicting or contradictory in any way but on the contrary, complementary to each other’ (Mendez Interview, October 23 2013). So this justice advocate expressed how law can play a role in truth-telling without sacrificing accountability. Indeed, Crenzel (2008) has highlighted how the truth-telling inquiry in Argentina took on a legal purpose when it decided to focus on identifying those who were responsible and bring them to account by referring them to court.

Challenging Amnesty Laws: Advocating for Trial and Punishment

Unsurprisingly, the amnesty laws created great consternation for some justice advocates who not only wanted each and every military officer to be prosecuted but also demanded institutional guilt be determined through charges of genocide (Mallinder 2009; Osiel 1986: 155). It was considered to be only truth and partial justice (Mendez 1991). Fisher (1993: 117) says the Mothers’ campaign became ‘less about the expectation of seeing their loved ones alive and more about the trial and punishment of those responsible for the disappearances’. So, in response, the Mothers and other human rights groups launched legal cases in domestic courts, Inter-American courts and third country jurisdictions. These advocates prioritized domestic political change, but when law was closed off they engaged in international activism as a complementary option in what Sikkink and Walling call ‘insider-outside’ coalitions (2004). They also continued to hold mass public protests and engage with the media to publicize their

71 legal activism. Argentinean justice advocate Juan Mendez highlighted how what transitional justice meant to citizens could change according to ‘the possibilities of justice in each country and each moment of its history’ (Mendez Interview, October 23 2013). During the dictatorship, Mendez said that ending disappearances and torture as well as having loved ones return would be considered justice. However, he said the demands for justice have changed since the transition to democracy. He stated: ‘if you ask anybody in Argentina today [what they mean] by justice they mean very specifically trials and jail time for people who perpetrated the abuses and any other justice they would reject as soft or light or not really justice at all’ (Mendez Interview, October 23 2013).

A strong theme in the Argentinean case study was how justice meant a legitimate legal process and judgment. Mendez, who identified legal judgment as what justice means to him, described how legal mechanisms that were designed to protect citizens eroded dramatically in Argentina to enable the illegal detention of prisoners:

In democratic times or even perilous times the system more or less worked precisely because the cops who had someone under some kind of secret detention knew that at any time they could be inspected and if they told the judge that he wasn’t there and he was found there would be trouble. They would even be prosecuted. So that was the way it used to work in the period leading up to the military dictatorship. At the moment of the dictatorship that was completely lost because the courts never inspected any site or detention centre and because the Minister of Interior felt it was fine to deny somebody had been arrested. Even acknowledging that arrest later was not much of a problem because no one was prosecuted because of that inconsistency. So that is how the legal system deteriorated to make it possible to have these things (Mendez Interview, October 23 2013).

The media coordinator for the victims’ group Grandmothers of the Plaza de Mayo, Clarisa Veiga, also said that a legal judgment meant justice to her because the military dictatorship detained citizens without any due process. She said:

They decided who lived or died without any notion of justice or legal atmosphere at all, so they just decided as dictators. They did not care about justice or legal issues. And the Grandmothers always struggled to get justice through the law. The Grandmothers don’t mind our own children being judged legally if they did something wrong. They’re not saying their children did nothing wrong. But of course they wanted the same for the others (Veiga Interview, November 2 2013).

72 What these statements show is how the lack of a legal process and judgment during a conflict may influence the kind of justice that advocates seek. In this case, as Veiga has stated, the Grandmothers did not want perpetrators to be punished without a legal judgment, nor did they necessarily seek to have their children proclaimed innocent. What these comments demonstrate is how these justice advocates want to pursue justice through a legitimate legal system. In the context of transitional justice, Mendez said retributive justice must occur on the condition of legitimacy, meaning the legal system must have full regard for due process and fair standards. As he stated:

If the post-conflict is such you don’t have independent courts you shouldn’t try to prosecute and you shouldn’t cut corners and try to put people in jail just because you think they are culpable. We have to give them the rights they didn’t give to others including the presumption of innocence and the right to a fair trial. So if you’re not going to have the possibility of doing it right I do agree you shouldn’t even try (Mendez Interview, October 23 2013).

However, Argentinean lawyer Gaston Chillier said while the legal system was an important instrument for the state to provide redress or remedy for victims, other institutions also played a role in the pursuit of justice:

I’m not a fetishist about the law. The law is in dispute. So I think there are many other elements are important to have in mind, like how the society and the political community and the state judiciary interact in order to provide justice. There, I think the media plays a critical role (Chillier Interview, October 29 2013).

These comments and the Mothers’ strategy of using the media help explain why justice advocates appeal to the media when they feel law is limited in helping them pursue justice. Despite the preference for law to act as the mechanism that delivers justice, these Argentinean justice advocates have turned to other forums, such as the media, to make their claims when legal processes are limited. There is also an understanding that the media plays a role in the intersection between the society and justice. What this case study further indicates is that during and immediately following a conflict, there is more emphasis on having the truth told and official acknowledgment of human rights abuses. This case study also illustrates how when access to law is closed off, justice advocates take their claims into the public sphere, not just locally but on a global level.

73 4.1 Pursuing Protection Against Harm: The Case of Sri Lanka

The case of Sri Lanka is a more recent example of a post-conflict society trying to come to terms with its past. There are some elements of this case study, though, that differ markedly from the military regime of Argentina. To begin with, Sri Lanka experienced a 30-year civil war under a liberal democratic regime. It has been considered more of an ethnic and nationalist conflict during which atrocities were committed on both sides by the state and the self-determination group the Liberation Tigers of Tamil Eelam (Rotberg 2010; Hoglund and Orguela 2011). The state defeated the Tamil Tigers in a particularly brutal end in 2009 so there has been no immediate political transition as there was in Argentina (Sriram 2013; Anonymous 2011; Hoglund and Orguela 2011). Finally, although there have been some transitional justice measures implemented such as trials and truth commissions, the state had focused on economic development amid claims that human rights violations were continuing under its governance (Goodhand, Korf and Spencer 2010; Sriram 2013; Anonymous 2011). However, as this section shows, there are some similarities to Argentina in what justice means to advocates and how they have responded to the transitional justice measures. In particular, these justice advocates also expressed an immediate need for truth-telling and want judicial accountability. Furthermore, justice advocates in both case studies have appealed to the national and international public sphere when access to a legitimate legal system is limited.

Sri Lanka’s conflict has deep roots, embedded since the time of British colonial rule when there was a politicization of ethnicity that favored the Tamils who represent 12 per cent of the population (Bandarage 2008). After gaining independence in 1948, the country experienced a rise in ethno-nationalism that deepened division between the majority Sinhalese population and the Tamils. This has been blamed on discriminatory state policies in relation to language, education, land and religion that led to a ‘Sinhalasation’ of the island and left the Tamils feeling marginalized (Hoglund and Orguela 2011; DeVotta 2004; Manogaran 1987). The Liberation Tigers of Tamil Eelam rose up as the dominant militant Tamil group in 1974 and began using violent methods to push for a separatist state. The rebel movement pioneered the use of the suicide bomb, recruited child soldiers and carried out political assassinations, which led to its listing as a terrorist organization in the United States, Canada, India, Britain and the European

74 Union (International Crisis Group 2010). From the 1990s until 2009, the LTTE effectively controlled parts of northern and eastern Sri Lanka as they continued to fight for self-determination. In response, the state introduced strict emergency regulations and national security laws that have been used to defend acts of repression (Anonymous 2011). A Norwegian-brokered ceasefire agreement was signed in 2002 and there were six rounds of negotiations until the LTTE withdrew in 2003 (International Crisis Group 2010). Then, violence escalated gradually and the ceasefire agreement was officially abrogated in 2008. The government claimed its military victory a year later.

Between September 2008 and May 2009 the government launched its final military offensive against the LTTE in the north. During these few months, about 330,000 Tamil civilians were trapped into a small stretch of land called the Vanni. A United Nations panel found credible allegations that the government carried out large-scale indiscriminate shelling in no-fire zones and at hospitals while depriving victims of humanitarian aid (2011). It also found the LTTE kept civilians hostage as a buffer zone against the military, shot those who tried to flee, forced children to fight, fired near civilians and continued suicide attacks outside the conflict zone (UN 2011). It has been estimated that tens of thousands of people were killed in the final stages of this conflict while more than 300,000 Tamils were internally displaced and confined in welfare camps (UN 2011).

Since 1953, censorship has been applied periodically to national and international media in Sri Lanka during periods of unrest. This censorship intensified during the Rajapaksa government when emergency regulations reintroduced in 2005 allowed the government to ban the any news material deemed likely to cause public disorder and in 2006, unofficial prepublication censorship concerning issues of ‘national security and defense’ was imposed by the government’s Media Center for National Security (Freedom House 2015). The Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations introduced in December 2006 were immediately used to arrest and detain journalists, sometimes for months without charge (Freedom House 2015).

In 2009, the Press Freedom Index ranked Sri Lanka 162 out of 175 countries while Freedom House gave the country a score of 70, with 100 being the worst. It detailed

75 how journalists faced increasingly hostile rhetoric from high-ranking officials and physical and verbal threats by both the military and vigilante groups on both sides of the conflict. The report also highlighted the most prominent examples including the 2009 assassination of Lasantha Wickrematunge, the editor of the Sunday Leader, and the 2010 disappearance of Prageeth Ekneligoda, a journalist and cartoonist for LankaeNews. As the threats intensified Reporters Without Borders estimated that at least 55 Sri Lankan journalists, including many press freedom activists, fled into exile during 2007 to 2010. This intimidation led to a silencing of the media and as International Federation of Journalists (2007) noted, ‘the willingness of politicians and others to denounce the media reinforces self‐censorship and makes the free expression of opinion a life-threatening activity’ .

A Victors’ Justice: Pursuing Prosecutions in International Jurisdictions

Sri Lanka has a poor history of securing justice and accountability for the abuses that have been perpetrated by both sides. Throughout the decades-long conflict there have been four official truth-seeking inquiries. In 1998 a commission was established to take up the work of three unfinished presidential inquiries into enforced disappearances. The investigation received over 30,000 complaints and a final report was handed down in 2002 (Iqbal 2002). In 2001 a Presidential Truth Commission on Ethnic Violence was set up to investigate attacks between 1981 and 1984 (United States Institute of Peace 1995). It heard over 900 cases, recommended minimum reparations for victims and resulted in an official apology from the president over the 1983 riots (Anonymous 2011). In 2006, the president established a Commission of Inquiry into human rights abuses that investigated fifteen acts of violence including the assassination of the foreign affairs minister and the killing of seventeen aid workers (Anonymous 2011). However, an International Independent Group of Eminent Persons appointed to monitor the Commission’s work raised concerns about procedural flaws (Anonymous 2011). Critics argue these inquiries have met with limited success, were seriously compromised or are seen as ‘motivated by political ambitions to slander members of the political opposition’ (Anonymous 2011: 38-39; Amnesty International 2009; Iqbal 2002). There have also been few prosecutions, rare instances of reparations and little official recognition of past harms (Anonymous 2011; Hoglund and Orjuela 2012: Sriram). Furthermore, views within the country have been divided about whether to

76 pursue peace through constitutional reform or justice through accountability measures (Guruparan 2011; Anketell 2012; Welikala 2012; Bandarage 2009). This reflects the debate within transitional justice practitioners and scholars that there must be a choice in post-conflict societies between peace and justice.

The former Sri Lankan government had emphasized the role of economic development and resettlement of internally displaced people as ways to prevent conflict and create a sustainable peace (Hoglund and Orjuela 2011; Anonymous 2011). However, it had also engaged with the concept of reconciliation and taken some actions under this stated goal. For example, it established a Lessons Learned and Reconciliation Commission in 2010 to investigate the conflict between the ceasefire agreement in 2002 and 2009. The Commission has been described as having some commendable attributes and its interim recommendations concerning detainees, land issues and language disparities were praised for tackling ‘pertinent and thorny’ issues (Anonymous 2011). Yet, it has also attracted strident criticism regarding its claims to be independent and lack of powers to fully investigate war crimes (Amnesty International 2011; Human Rights Watch 2011; International Crisis Group 2011). The Commission has been considered a political ploy to deflect international attention away from war crimes and to put pressure on opponents for their role in previous peacebuilding agreements (Behuria 2011). Furthermore, its remit to investigate only from 2002 meant that the root causes of the conflict are not being taken into account (Anonymous 2011). However, the greatest criticism was that if failed ‘to meet basic international standards for independent and impartial inquires’ and that is was unlikely to lead into serious investigations of state crimes (Perera 2010). More significantly, the UN (2011: v) declared the Commission ‘deeply flawed’ and said it failed to meet the international standards of an accountability mechanism. The UN panel recommended an international investigation mechanism be set up, which the former Sri Lankan government fiercely rejected. The new President Maithripala Sirisena, who was democratically elected in 2015, agreed to an internationally supervised inquiry, but there has been little progress (ABC 2016).

In response to the Sri Lankan government’s refusal to allow an international inquiry, the Tamil diaspora has campaigned globally for justice and pursued prosecutions at the international, regional and state level. Their indictments have been filed in the International Criminal Court, the European Court of Human Rights, the US, Britain,

77 Switzerland and Australia. There has also been a quasi-judicial process called the Permanent People’s Tribunal on Sri Lanka in 2010 and in 2014 that found the state had committed war crimes and genocide (Haigh 2014). Some claims have been filed by non-government organizations such as Tamils Against Genocide, the Global Tamil Forum, Swiss Eelam Tamil Council, Society for Threatened Peoples, TRIAL, European Centre for Constitutional and Human Rights and International Commission of Jurists Australia. Other claims were made by individuals who were witnesses to the Sri Lankan conflict or relatives of dead victims. The claims have been leveled at top-ranking Sri Lankan politicians and diplomats who had previously held senior positions in the military and navy during the final stages of the conflict. However, the cases have not progressed to trial due to lack of jurisdiction or diplomatic immunity reasons. Alongside these courts cases, justice advocates have held media conferences to detail their indictments with resulting widespread coverage. For example, an Australian- Tamil justice claimant Jegan Waran was quoted in more than 130 reports nationally and internationally (Australian Tamil Congress 2011).

The Strengths and Limitations of Law for Truth-Telling

Despite its distinctiveness, the Sri Lankan case has followed a similar trajectory to the Argentinean justice advocates’ search for truth and knowledge, which is perhaps not surprising given that tens of thousands were also disappeared throughout the conflict. A similar movement called the Sri Lankan Mothers’ Front was formed to demand knowledge about where loved ones had gone. There was also silence and denial during the final stages of the conflict in what has been called the ‘war without witnesses’ (Amnesty International 2009). This was because no journalists or international bodies such as the UN were allowed into the northern peninsula when thousands were killed. A Tamilnet correspondent called Lokeesan was one of the last reporters there to record the killings and has since told his story in a book called Still Counting the Dead about his five months taking photographs and video footage of the attacks. Author Frances Harrison (2013) revealed that it was the stories that Lokeesan missed that most concern him. He told her: ‘There are still so many things we don’t know. There were no witnesses. A lot of people were killed that we don’t know about’ (Harrison 2013: 39). Fellow Sri Lankan journalist and justice advocate Bashana Abeywardane told a news program ‘146, 000 people are unaccounted for and no one knows what happened to

78 these people’ (ABC 2012). So again, this suggests that there is an immediate demand from some justice advocates for knowledge about whether the missing are alive.

As more evidence emerged from the UN inquiry and civilian eyewitnesses, it seems Sri Lankan justice advocates also shifted their focus to finding out who was responsible for the atrocities. It appears this demand extended beyond the state’s culpability to include any international implication in these crimes. For example, Muthuthamby Sreetharan said:

In the events leading to the massacre we need to know who made the decision, what the troops were told, what the security forces were told and how everything happened? What was the line of authority that allowed this to happen? In the international scene what did the West know? All the truth as to how 100,000 people were killed with absolutely no accountability for it including the US, the regional power India and now the Commonwealth (Sreetharan Interview, October 15 2013).

Like the Argentinean case, those who did witness and suffer harm during the Sri Lankan conflict emphasized the desire to let the world know what happened to them. For Lokeesan (quoted in Harrison 2013: 51), he said he felt this would bring some kind of personal resolution to what he had seen: ‘When I came out I wanted to tell everyone what happened so that every single human being who died there would be worth something. There has to be an end to this thing. There has to be a point to it all. For me, it’s to tell the outside world’. Australian-Tamil justice advocate Jegan Waran who witnessed the shelling while working as a volunteer said letting the world know was one reason why he took legal action against the former Sri Lankan president. He told a newspaper, ‘people are still suffering for what he did and I think the world should know’ (Gordon 2011: 5). These comments indicate that in telling the world, it is some form of redress for those who died or are still suffering. Like the Argentinean case study, these justice advocates are taking their claims to the global public sphere when there is no official acknowledgment forthcoming from the state.

As in the Argentinean case, these justice advocates expressed how law was the preferred mechanism for truth-telling. Sri Lankan justice advocates raised the importance of putting harm on the record even in cases when only an indictment has been filed and the case never gets to be heard in court. For example, advocate Rajeev

79 Sreetharan, who assisted on the US legal cases, said his aim was to get justice for the Tamils of Sri Lanka through the legal systems of the West. However, he said that having harms translated into a public legal record has been a rare occurrence in transitional justice processes. As he said:

When you look at the history of transitional justice from Nuremberg to Darfur, it's only a select number of people who have gotten justice and who have been given the opportunity for their suffering to be written in history (Voice of America 2011).

From this perspective, legal processes can be limited in providing all victims with official acknowledgment of recording their testimony.

Justice advocate Rob Stary, who was the lawyer on the Australian case against the Sri Lankan president, also viewed truth-telling as justice. He explained that, ‘if you tell the truth justice will prevail’ (Stary Interview, November 19 2013). Truth-telling also appears to be seen as a protective mechanism against the power of the state. For example, Stary stated, ‘if knowledge is power, if we have an informed public view then we have nothing to fear’ (Stary Interview, November 19 2013). This statement indicates that if public opinion is underpinned by truth and knowledge, then justice can be found and the state is held accountable for its actions. However, Stary said that truth- telling is actively excluded from the court process. As he said about his experience in the court room:

We’re often told by judges in court this is not a search for the truth. In a criminal prosecution the state has to prove a case beyond reasonable doubt and so we never ask our clients whether they’re innocence or guilty, we say “well look at the evidence and if the evidence is such that the charge won’t be sustained then you don’t have to assert your innocence, the prosecution has to prove you’re guilty”. But that’s obviously without doing anything that’s dishonest, we’re truthful about the process (Stary Interview, November 19 2013).

What this comment shows is how legal procedures and rules of evidence may restrict what knowledge can be revealed in the court process. According to this view, there is no capacity for official acknowledgment as the law is ‘not a search for the truth’. Rather, it is about the state weighing up the admissible evidence to prove a case beyond reasonable doubt. From this perspective, the law is seen as treating truth-telling as irrelevant to having justice served. The law can even obliterate and distort the cause of

80 truth-telling (Cohen 1995: 21). Consistent with other studies, we can see here in these comments above there is the belief that law is limited in allowing all victims and witnesses to name crimes and blame perpetrators using their own language (Mertus 2000). These views suggest that justice advocates continue to engage with the law in the pursuit of justice because truth-telling and accountability are considered separate yet interwoven processes.

The perspective of another advocate, Muthuthamby Sreetharan, sheds some light on this question as he expressed how there was still power for victims in the process of filing an indictment, even if it does not progress to a finding of guilt, because the perpetrators and crimes have been put on the public record. He said that:

All the records are there and filed nicely in the US legal system so anyone can read it and it will say [lawyer] Bruce Fein said [Sri Lankan president Mahinda Rajapaksa] was a danger to humanity. All of these are on record in there and all of these are powerful things (Sreetharan Interview, October 15 2013).

These comments suggest that law is considered the preferred mechanism for justice advocates because of its capacity to officially put harm on the record, even though advocates were far from expecting a finding of genocide. It is the naming of crimes and blaming of perpetrators in a legal space that seems to be important here.

Perhaps more tellingly, there appears to be a belief that legal spaces can open up so access to justice is not always foreclosed. In reflecting on how the Sri Lankan legal cases have been largely unsuccessful at proceeding to a full hearing due to diplomatic immunity, Muthuthamby Sreetharan said:

While we want to believe that justice will be served we should not be too disappointed by the setbacks because law itself moves according to the public opinion. So even if we aren’t successful there are a few judges who could have heard a few positive things we are trying to achieve and then perhaps in the next case his opinion will be more towards keeping a moral high standard and trumping the self-interest of the executive branch. So while it hasn’t given us yet a positive result we have had minor successes in other countries like Europe where some of the alleged perpetrators had to be recalled by the government. So we will continue to fight for justice in the courts of law. That is the West’s primary institution that could provide justice (Sreetharan Interview, October 15 2013, my emphasis).

81 This comment affirms how law is perceived by some advocates as the main mechanism for providing justice. Although this advocate is aware of law’s limitations there appears to be the view that these are not necessarily permanent barriers to justice. Rather, it seems the law is seen as flexible and able to shift. Furthermore, it is public opinion that is seen as the key to opening up these spaces in law to better access justice. In this way, the law is seen as capable of changing according to what moral standards the public expects it to maintain. So here we see how justice advocates are hopeful that law can overcome such limitations to be a space for truth-telling and justice. We can observe here the possible use of media when access to law is difficult, as a way to appeal to public opinion to open up these spaces within law.

Protection Against Future Harm and the Importance of No Impunity

In contrast with the Argentinean case study, the protection against future harm was a strong theme that emerged from what justice means to Sri Lankan justice advocates. The prevention of state crimes has been articulated after genocides in Rwanda, Bosnia, East Timor and Cambodia during the twentieth century when the phrase ‘never again’ was repeated (Power 2002; Schiff 2008; Ronayne 2001). As Mertus (2000) has highlighted, deterrence can operate on a global level if regimes are held to account by international law or at a local level to displace threats of personal revenge, build confidence among citizens and gain legitimacy. However, Minow (1998: 12) argues that retribution is confined to addressing past harms, saying ‘[the] retributive dimension insists on punishment not necessarily in search of deterrence or any other future effects, but instead as a way of denouncing previous wrongs and giving persons their just deserts’. Yet, the preamble to the Rome Statute (1998) has a clear aim that prosecutions ‘put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. Cohen (1995: 19) has also described how truth-telling embodies the hope that opening up the past harms can prevent repetition in the future. Thus, both the transitional justice mechanisms of trials and truth-telling can be seen as having the capacity to lead to protection against future harm.

Australian Tamil Congress advocate Sam Pari, who identified protection against future harm as meaning justice to her, said there was no point in justice being served according to formal legal processes if the atrocities continued to happen:

82

So if we bring all the war criminals to court and they all get the worst sentence possible but then the Sri Lankan government continues to conduct genocide against my people for me justice is not served because justice is supposed to be ultimately about, yes the perpetrators are punished, but also to make sure that act of injustice does not happen again. That’s why I felt [protection against future harm] was the most important (Pari Interview, November 11 2013).

Pari also expressed how other forms of justice are too little redress following the loss of a loved one. In her view, the preferred official response is that state crimes do not happen to another family:

For me personally, ultimately when there is so much loss no amount of accountability or compensation or jail sentence for the perpetrators can bring that back. When you’ve lost your loved one, when that life is taken away, no matter what happens you can’t bring that life back. Which is why protection against future harm is so important because you just don’t want another life to be lost (Pari Interview, November 11 2013).

Another Sri Lankan justice advocate explained how protection against future harm meant justice because the conflict was still ongoing. US lawyer and activist Tasha Manoranjan said she was concerned that, at the time of the interview, army leaders were threatening to behead those in the Tamil community who were speaking out for a separate state. She said:

I think developments on the ground are so dire that justice to me now is more urgent and needs to address the ongoing human rights violations that are taking place. So I think the nature of the conflict is so unresolved and still so susceptible to erupting into what happened in 2009 again that ensuring there isn’t a repeat of history is of primary importance (Manoranjan Interview, October 22 2013).

So, here we see the perspective from a justice advocate who views deterrence as a priority to protect citizens from ongoing human rights violations. These views also unsettle the argument that survivors of state crimes have little interest in deterrence and, instead, perceive the function of trials to be a means of exacting revenge and retribution (Mertus 2003; Minow 1998).

However, these justice advocates also associated protection against future harm with no impunity and jailing perpetrators. Thus, it appears that measures such as punishment

83 and incarceration are seen as necessary to ensuring the deterrent aspect of transitional justice. For Pari, she said it was important that perpetrators be punished for committing human rights violations because ‘regardless of the language they speak, gender, how rich they are, their social status, if they have done something wrong they should be held accountable for it’ (Pari Interview, November 11 2013). In the context of transitional justice, perpetrators are often elites such as politicians, military leaders, judges, religious and business leaders, therefore, it can be difficult to prosecute them in the immediate aftermath of conflict. Huntington has argued that negotiated transitions tend to exclude radical demands from non-elite social groups (1991: 165-169). Therefore, we can see how victims’ groups who make justice claims demanding no impunity for elites are unlikely to get an official response from the state. There is often the argument that accountability should be sacrificed for reconciliation, but as Cohen (1995: 29) notes, ‘impunity for the “wrong” reasons is virtually the norm’.

Tamils Against Genocide advocate Brami Jegan also said there should be no impunity, however her view differs in that she does not confine this just to the legal sense of the concept in which there is trials and jail. As she explained:

I mean that in every sense. There should be no one there to protect them from the crime they have committed, whether it’s the law, the media, another politician, their family or a justification for an historical fact (Jegan Interview, July 26 2014).

This belief suggests that justice means protection against future harm is reliant on perpetrators not being protected from punishment. It also takes a much broader societal view of impunity in which institutions from family groups to politicians must be involved in bringing a perpetrator to account. Significantly for this study, Jegan also highlights how the media must also play a role in not shielding a perpetrator. Posner and Vermeule (2004: 792) contend that punishment has important symbolic effects in that it ‘may dramatize the new regime's commitment to legality and liberal democracy, suggesting in an emphatic way that future violations of rights will be met with sanctions. Most pragmatically, when a popular passion for retribution is widespread, it is a social datum that the new regime’s policymakers must take into account as they would other facts’. So, here we can see the potential for how public opinion can influence the official response from a state if there is consensus that justice means prevention of future violations of rights and no impunity.

84 The Limits on Getting a ‘Good’ Legal Judgment

Like the Argentinean case, a legitimate legal process was also identified as important for some Sri Lankan justice advocates. For example, Kasipillai Manoharan, whose son Ragihar was killed during the conflict, said the legal judgment was more important to him than the punishment. He also said he wanted to let the world know what happened and have the truth told in order to put pressure on the Sri Lankan government for a good legal judgment (Manoharan Interview, October 11 2013). The government initially claimed that Ragihar and his four friends were terrorists killed in a grenade attack, which the Sri Lankan media reported (Manoharan Interview, October 11 2013). When Manoharan gave testimony at an inquiry into his son’s death he had a stone thrown through his window and every time Manoharan spoke out his family received death threats and they eventually fled the country (Manoharan Interview, October 11 2013). The Trinco 5 case, as it has come to be known, has been the subject of a Presidential Commission investigation, the Lessons Learned and Reconciliation Commission inquiry and has come before the United Nations Human Rights Council (Amnesty International 2013). In 2014 twelve police officers were arrested for the crimes, yet this does not include senior commanders and no one has been convicted or punished yet (Human Rights Watch 2015). Manoharan has also unsuccessfully launched a civil case under the US Torture Victims Protection Act. Manoharan explained that the lack of judicial independence had prompted him to take action and pursue a legal judgment:

Now I want a good judgment. That is my challenge. There were no independent courts. That’s why I want maximum pressure for an international inquiry. I don’t think about a sentence for those officers who were the killers, I want a judgment only (Manoharan Interview, October 11 2013).

These comments indicate several reasons why he engaged with the media for justice: the domestic courts were not considered independent, he wanted to appeal to the global public sphere, and he wanted to put pressure on other states to conduct an international inquiry. Again, we see the importance to justice advocates of a legitimate legal judgment in cases when there has been a breakdown of the rule of law.

US advocate and lawyer on the Sri Lankan case Ali Beydoun summed up how justice to him was understood in a legalistic sense where retribution is enacted through legal

85 procedure, there is a judge who makes a ruling and accountability is achieved when there is jail at the end of the process. He stated:

These are more important because it shows me that there is a system of laws that will be followed and a legal judgment you have to assume has gone through a procedure and whether the procedure is right or wrong, meaning whether it was corrupt or not corrupt, at the very least there was a recognition that it had to go through that system. And that’s why I also put no impunity - no one stops the system saying this person cannot be put on trial. No immunities, no amnesties, everyone goes through the system. And then if the system is wrong we’ll deal with that. But to have a ruling that comes out of the system and holding someone accountable by jailing them or forcing them to submit to some sort of judgment, monetary or whatnot, then that’s fine. But I prefer for criminal conduct to have jail – the deprivation of liberty is always far more meaningful than the deprivation of some other means (Beydoun Interview, October 17 2013).

This view shows how there is an awareness the law may be flawed and not deliver the desired outcome, yet there is a belief that the justice process is best served if it goes through a court trial. This belief follows Arendt’s (1994: 253) observation that ‘the purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes . . . can only detract from law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment’.

Tamils Against Genocide founder Muthuthamby Sreetharan, who filed a case against the former Sri Lankan president in the US, also described how the law could empower victims and be used as a show of strength against an oppressive state. He said:

I am one guy who can bring him to court. We went to the court and the ambassador was there and we were there on the other side of the bench. So in the Sri Lankan papers they are the kings of the place but in the US they are on the same playing field. It is power and it is legal argument. There is not that many similar cases – a sitting head of state being brought to court. When things were going downhill it came to me that we were in a totally helpless position and we have to somehow find our strength to rise up and the legal system gave us that (Sreetharan Interview, October 15 2013).

This perspective goes beyond the basic goal of a prosecution rendering justice to account for how trials can also make victims feel equal with powerful heads of state. As we can see here, justice advocates have appealed to the legal system because it can give them the strength and power to pursue justice against a state that lacks the political will to hold itself to account.

86

What does come out from the reflections of justice advocates in relation to their search for justice is the importance of not perpetuating the suspension of the rule of law and human rights abuses that the state had condoned. This may explain why they make legal claims in other jurisdictions or that draw on international law. In explaining how law within Sri Lanka had deteriorated to the point of not being able to address human rights abuses, justice advocate Bashana Abeywardane said: ‘there is nothing that will happen inside the country because the law doesn’t have the capability. That can only be done by the intervention of international law’ (Abeywardane Interview, October 9 2013). Thus, these justice advocates are forced to wait until a change of government may consider legal redress or they can appeal to international law for justice. It appears that Sri Lankan advocates may also appeal to the media alongside law to form insider- outsider coalitions when domestic legal processes are closed off (Sikkink and Walling 2006).

However, other justice advocates suggest that international law can also be limited at addressing state harm. For example, Tasha Manoranjan said that law should protect against future harm in the normative sense. But she said:

I see a lot of failure of international law in respect to Sri Lanka and I think there has been some progress towards respecting international law through the UN Human Rights Council but not being near what international humanitarian law requires. So, I think in actuality law has not done very much at all to protect against harm in Sri Lanka (Manoranjan Interview, October 22 2013).

Balint has also identified the limitations of pursuing justice for mass harm because the concept of state crime does not exist within international law (2014: 152). When international law is drawn upon to prosecute state crimes, it has been seen more as a symbolic normative measure to pursue justice. As Roht-Arriaza argued, “where international law is invoked in a [domestic] criminal setting, it is often used for its norm-establishing and reaffirming value rather than as a basis for the precise statutory definitions required for valid criminal conviction” (1995: 295). Thus, individual and state accountability that may lead to deterrence or protection against future harm can be difficult to achieve under state law or international law.

87 Another reason that some justice advocates said that law is limited is the political framework that courts are restricted to operate within. One advocate Jan Jananayagam gave the example of how Britain’s Foreign Office drew up a list of terrorist organizations including the Tamil Tigers that became law and thus bound the courts. She stated:

I don’t think the courts failed but there is a recognition that the courts work within the framework that is set. It is a political framework. We have the terrorism legislation here and I would say that’s a partly politicized legal issue. So you can’t blame the courts because of the definition of what constitutes terrorism. The court process is not free of the political background and technical bureaucratic issues so therefore it can never be perfect (Jananayagam Interview, October 5 2013).

Another advocate Muthuthamby Sreetharan also highlighted how political decisions could influence a legal case when there were issues of diplomatic immunity:

We have direct evidence of where politics plays in the law. So we brought action against [former Sri Lankan president] Mr Rajapaksa and the Department of State has discretion to get involved or not but they chose to get involved regardless of the 100,000 killings that he’s allegedly responsible for and the US State Department said we are intervening to suggest to the court that he has head of state immunity (Sreetharan Interview, October 15 2013).

Manoranjan also discussed how the issue of diplomatic immunity could ‘prevent justice’ by ‘stifling’ the courts, which she explained had no jurisdiction or power to review such policies. Beydoun said his impact litigation clinic used such legal cases to highlight how diplomatic immunity policies could protect human rights violators (Beydoun Interview, October 17 2013). This comment shows that justice advocates are aware that political decisions can limit law’s power as a mechanism that can deliver judicial accountability. However, this is not necessarily a deterrent for advocates who continue to make legal claims even though they may be likely to fail. Indeed, as Beydoun highlighted, some claims are made to demonstrate the inadequacy of law to address human rights violations. These views are also consistent with the idea that any legal process cannot be separated from political realities (Shklar 1964; McCargo 2015).

The case of victim Jegan Waran’s allegations of war crimes against the Sri Lankan president in Australia illustrates how the law may determine that a claim should proceed through the courts but it is stopped by political intervention. In this case the magistrate

88 set a date for the hearing of the claim but the Attorney-General vetoed the indictment on the basis of diplomatic immunity. Australian Tamil Congress spokeswoman Sam Pari said in response, ‘To think that the Australian legal system will allow this to take place but for a politician to then say that these proceedings can't go forward is very, very disappointing’ (ABC 2011). Former Australian diplomat and advocate Bruce Haigh said the Attorney-General was wrong to claim he would have breached international law if he allowed a war crimes case against the Sri Lankan president to proceed and it was clear the decision was ‘purely based on politics…He hasn't looked at the law but he's reacted politically to the situation because it's CHOGM [Commonwealth Heads of Government Meeting]’ (ABC 2011). These comments suggest advocates believe that politicians have the discretion to let claims proceed through a legal process if they choose to and indicates that this is why they have used the media to make these comments. In doing so, it appears they are trying to put public pressure on politicians to give them access to the legal system.

Pari also said that the law is only as good as its implementation by legal authorities. However, in contrast, she said that it is the attitude of legal authorities towards the law that can be limiting in the pursuit of justice. For example, she said:

You can have a lot of laws that might get passed through Parliament but if the authorities and the judicial system don’t respect those laws then the laws are worthless. So I think laws are very important but they’re only as important as the fairness of the authorities in that country and the judiciary (Pari Interview, November 11 2013).

What this section on Sri Lanka has illustrated is the conundrum that these justice advocates face when pursuing justice through the law. On the one hand, these advocates view law as empowering for claimants and a desirable forum for putting harm officially on the record. Similarly, they view law as the best mechanism to ensure that atrocities do not happen again through retributive justice measures such as no impunity and jail. Yet, they also recognize it as a flawed system both at the national and international level. This can be because they see the law as politicized and it constrains the courts or it could be that legal authorities are not seen as implementing the law fairly or wisely. Interestingly, Manoranjan explained this conundrum and why she still appealed to the law for justice:

89 We’re bound by the laws we have regardless of how flawed they are so we can still keep trying to push the boundaries and bring impact litigation lawsuits to force judges and the courts to confront these uncomfortable hypocrisies within the law. But we’re still asking for a solution from the system that enabled this injustice to occur and continue (Manoranjan Interview, October 22 2013).

This echoes a similar comment by another justice advocate, Muthuthamby Sreetharan, who discussed how law could shift according to public opinion. So, what this case study has highlighted is how some justice advocates believe the law can shift or the boundaries of law can be pushed. This is despite the recognition that the law can be both a partner in state crimes but it can also be called on to redress state crimes (Balint 2012). This indicates that these justice advocates use the media alongside legal cases when access to justice is limited as a way to shift or push the boundaries of law in their pursuit of justice.

4.3 Pursuing Indigenous Rights and Recognition: The Case of Australia

The case study of Australia shares some similarities with Sri Lanka in that it was a conflict grounded in historical times. Britain began colonising Indigenous lands from the late 18th century and the subsequent impact of officially-sanctioned dispossession and control of Indigenous peoples has arguably produced an enduring structural violence whose contemporary effects include widespread social disadvantage, cultural repression, discrimination, and racism. Like Sri Lanka, colonial-based harms have continued under a notionally liberal democratic regime, yet it has been only recently that the transitional justice framework has been analyzed and expanded to consider how to include the mass atrocities committed against Indigenous peoples in settler colonies. There have been some ad hoc inquiries in Australia that can be seen as taking the form of truth commissions and the justice advocates interviewed in this case have launched legal cases of genocide against the state and, like Sri Lanka, formed a strong movement for political self-determination. This section will detail how these justice advocates have used media alongside law to try and assert indigenous rights.

The First Fleet arrived in Sydney Cove in 1788 to found a penal colony. Unlike its other settler colonies in North America and New Zealand, Britain did not consider Indigenous peoples in Australia to have a relationship of ownership with their land so no treaties were negotiated with the British state or subsequent colonial governments. The

90 expansion of settlement in the 19th century devastated the Indigenous population. However, it has only been in the past few decades that the word genocide has been used to describe this devastation (Barta 1985; Tatz 1999; Behrendt 2001). There was no doubt Aborigines were physically decimated, with some estimating that numbers dropping from as high as 750,000 to 31,000 after 123 years (Tatz 1999: 7-9). But the causes and intent of these deaths are debated. Moses (2000: 90) argues that, ‘the difficulty in applying the UN definition of genocide to colonial cases of mass death rests on the fact that most of the indigenous fatalities were not usually the direct consequence of an intended policy of extermination. Disease, malnutrition, alcohol, a decreased birth rate, and increased intertribal warfare accounted, in the main, for the catastrophic decline in the Aboriginal population in colonial Australia’. Moreover, even the numbers of those deaths in which settlers directly killed Aborigines has been contested. Historians such as Henry Reynolds (1982; 1987) have estimated that up to 20,000 indigenous people were murdered during frontier violence. Others, such as Keith Windschuttle (2002), have disputed that widespread massacres took place. These differences sparked the 1990s ‘history wars’ in which one side framed the impact of settlement on Aborigines as genocide while the other denounced this as a ‘black armband view of history’ (Macintyre and Clark 2003).

Forced assimilation policies have also been a feature of state harm against Aborigines. In 1886, in the colony of Victoria for example, the Aborigines Protection Act forced all ‘half-castes’ and others considered to be of mixed descent to be removed from government missions and reserves, resulting in a widespread separation of families and cultural breakdown. Christie observed, ‘viewed in its harshest light the 1886 Act could be construed as an attempt at legal genocide. Certainly it was aimed at removing the Aborigines as a distinct and observable group, with its own culture and way of life’ (1979: 205). However, it has not just been a policy of early colonial times. As the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families shows, the practice of forced removal for the purpose of assimilation continued until 1970 (1997). The inquiry also controversially found the practice was a case of genocide. Historian Robert Manne has estimated the number of what is called the Stolen Generations is between 20,000 and 25,000 children (2001). But as Bartrop (2001: 81-83) highlighted, ‘the concept of Australia as a site of genocide is anathema to many, not least the [then] Prime Minister, John Howard’. Therefore, we

91 see again, how there has been a gap between knowledge and acknowledgment of genocide.

With the spread of the pastoral economy, increasing numbers of Indigenous peoples were dispossessed as governments and individual settlers claimed Indigenous lands as their own. While the doctrine of terra nullius (no-one’s land) was finally rejected by the Australian High Court in 1992, its years of operation had authorized systemic discrimination and injustices (Short 2010; Wolfe 2006). Wolfe (2006: 388) contends that the primary motive for settler colonialism is exclusive access to territory and that its governing logic is to destroy indigenous society to replace it with a new colonial one. He notes that questions of genocide accompany settler colonialism because ‘land is life—or, at least, land is necessary for life. Thus contests for land can be—indeed, often are—contests for life’ (2006: 387). Evans (2009) argues, further, that the adoption of exceptional procedures in Australia’s domestic law were integral to this expansion of settlement and replacement, allowing Britain to secure the territorial base for sovereignty. This ongoing settlement is why Wolfe says that settler colonialism should be seen as ‘a structure, not an event’, explaining how such founding injustices continue today, evident, for example, in high rates of Aboriginal incarceration, suicide and mental health issues (Wolfe 2006: 388; Cunneen 2001; Australian Productivity Commission 2014). Until recently, this structural nature of state harm has been neglected in theories of transitional justice, which have tended to overlook Western liberal democracies and settler societies as potential objects of inquiry (Balint, Evans and McMillan 2014).

The Barriers to Recognition of Genocide and Reclaiming Land

This section explores the difficulties of structural reform in settler states that may be able to respond to Indigenous claims of justice and recognition of genocide. It traces the beginning of progress in the 1960s and the turning point in the 1990s when land rights and the fuller nature and extent of colonial harms began to be recognised legally and politically. However, it also shows that while these judicial decisions and official inquiries seemed to offer further prospects for justice, these were subsequently constrained by state interventions such as legislation and poor implementation of recommendations. It highlights how the harms of the past that were outlined in the

92 previous section endure and continue in contemporary Australia to provide a context of why the Aboriginal Tent Embassy continues to pursue justice.

The 1960s and 1970s was a time of great activism for Indigenous rights and there was some progress made including the 1967 Referendum that amended the constitution to secure citizenship rights and the 1976 Aboriginal Land Rights Act in the Northern Territory. The 1990s, too, appeared to be a turning point in the Australian consciousness for how the nation would address the historical injustices of the past. In 1991 the Royal Commission into Aboriginal Deaths in Custody made 339 recommendations based on its findings that there was an over-representation of Indigenous peoples incarcerated due to their ‘disadvantage and unequal position in society’ (RCIADIC 1991; Cunneen 2006). Despite this extensive inquiry, the recommendations have been largely ignored, there is continuing high levels of Indigenous peoples in jail, and there has been an increase in punitive sentencing (Cunneen 2006; Anthony 2013).

The High Court Mabo decision in 1992 rejected the doctrine of terra nullius and for the first time recognized limited Indigenous rights to native title (Mabo v Queensland 1992). Subsequently, the Keating Labor government introduced the Native Title Act 1993 which codified the Mabo decision and facilitated the process of land rights claims. In 1996, the High Court made another important decision in determining that pastoral leases did not extinguish native title (Wik Peoples v Queensland 1996). However, in response to the High Court ruling and a step backwards for Indigenous land rights, the Howard Liberal government moved to introduce legislation in 1998 that would restrict native title even further (Wik Peoples v Queensland 1996; Native Title Amendment Bill 1997). The legislation, with its intent to extinguish native title, was seen some academics and activists as racial discrimination and demonstrating an intent to destroy Indigenous peoples (Behrendt 2001; Short 2010). As Wolfe (1994) argues, the deep structures of the Australian colonial project meant that any progress in native title rights does not constitute a rupture from the harmful past. He emphasises the historical continuity of harm in Australia that manifests as a continuing and structural logic of elimination in which Indigenous society is replaced with that of the settlers (Wolfe 1994, my emphasis).

93 The 1995 national inquiry into the Stolen Generations, which has been likened to a truth commission, identified the extent of harmful child removal policies and recommended reparations on the basis of genocide (LaForgia 1997; Human Rights and Equal Opportunity Commission 1997). The government response ignored the recommendation to provide monetary reparations to affected Indigenous families and, instead, implemented a $60 million program to provide practical assistance such as family reunions and health services. Some legal scholars saw this response as a politically attractive and publicly palatable decision rather than being based on any factual judgment of legal obligation (Buti 2008; Graycar 1998). In contrast, the local state jurisdiction of Tasmania made the political decision to compensate the Stolen Generations (Rae 2015). In the late 1990s members of the Stolen Generations took legal action in several cases against the state, however, they were ultimately not successful in proving liability (Kruger v Commonwealth 1997; Cubillo v Commonwealth 2001). These claimants faced major legal limitations including the difficulty of locating evidence, the financial cost, the emotional trauma of the court process and establishing liability for the harms caused (Cunneen and Grix 2004: 4). The Howard Liberal government also caused great controversy and division with its refusal to apologize to the Stolen Generations while a national reparations scheme has also not been forthcoming, even when the Labor government took power and made saying sorry a priority in 2008 (Rudd 2008). As we can see, the legal and political barriers to justice for Aboriginal people to have genocide recognized and their land reclaimed have been significant.

Nevertheless, Indigenous peoples in Australia, together with settler supporters, have consistently asserted their claims to land and justice. An example I draw on here is the Aboriginal Tent Embassy, which was established in Canberra on the lawns across from Parliament House in 1972 as a protest against Prime Minister William McMahon’s speech rejecting Indigenous land rights. What started as a group of four young Aboriginal men, Michael Anderson, Billy Craigie, Tony Coorey and Bert Williams, grew into a widely supported movement that reshaped debate about Aboriginal affairs and which still exists today. The tumultuous clashes between police and protesters in July 1972 put the struggle for justice and sovereignty on the national agenda and even attracted international attention (Foley, Schaap and Howell 2014: 37). As the young

94 activists became the centre of a national debate, they also learned how to contest justice in the media arena. As one of the activists, Gary Foley, (2014: 37) said:

They learned very quickly how to orchestrate media events and stunts in a way that would have maximum appeal on the TV news that night and they were savvy enough to time their events/stunts so that it met the afternoon deadline for the TV news and current affairs crews. Many journalists became close friends with some of the protestors.

Historian Ann Curthoys also observed that ‘the Freedom Ride and the Tent Embassy shared an awareness of the power of the media, especially visual media, to get across a message contrary to existing public opinion’ (2014: 113). Thus, it appears these advocates saw access to the media as critical in shaping their response to the official rejection of indigenous rights and claims.

This awareness and skill at harnessing the power of the media was also used to publicize a legal case of genocide that was undertaken against parliamentarians some years later in 1998. The case, brought by Aboriginal prosecutors Wadjularbinna Nulyarimma, Isabell Coe, Billy Craigie and Robbie Thorpe among others was heard in the Australian Capital Territory Supreme Court. They argued that the Native Title Amendment Bill was an act of genocide as it further restricted Indigenous rights to land that were granted under the Wik legislation (Wik Peoples v Queensland 1996). Although Australia was a signatory to the Genocide Convention, the justice advocates also wanted to highlight how parliamentarians had failed to implement this in domestic law. However, the case was not ultimately successful as the judge ruled the legislation lacked the ‘intent to destroy’ element required by the Genocide Convention. Despite this, Balint (2014: 240) has argued that the judgment was still significant as colonial genocide was recognized and stated in law. Yet, despite this recognition of genocide, the case did not ‘create a “foundational moment” for the broader Australian society and enter more widely into the public consciousness’ (Balint 2014: 236).

In a similar vein to the Sri Lankan case, protection against future harm was a strong theme to emerge as what justice means to some Aboriginal advocates. For example, the Aboriginal Tent Embassy’s indictment of genocide against parliamentary members was framed in the language of protection from ongoing state crimes. However, these legal

95 claims were not about direct violent conflict as in the Sri Lanka case, but rather ongoing social harms that have not previously been part of transitional justice’s scope. This reflects the distinction between the physical acts of subjective violence by a clear perpetrator and the underlying, often hidden, subjective violence or structural injustice that perpetuates systemic domination and exploitation (Zizek 2008; Young 2008). In an affidavit, justice advocate Wadjularbinna Nulyarimma described the harms she had suffered growing up when she was taken away from her family and put on a mission. She also detailed how ‘today genocide takes many forms’ including land theft, deaths in custody, the continued removal of Aboriginal children into foster homes, suicide, psychological harm and alcohol and drug abuse (Nulyarimma 1998).

The protection from ongoing state crimes was given as a key motivation for making the legal claims against the state. For example, one Aboriginal Tent Embassy press release that was circulated to the media was headlined ‘Aboriginal Nations demand protection from Genocide’. It went on to explain that:

This action against further acts of genocide has its foundation in the need for Aboriginal Nations and Peoples to protect themselves and future generations. The concern is that Genocide will continue unless restrained by law. There is an unwritten common law right to be protected from Genocide (17 July 1998).

These comments indicate that law is understood to be a mechanism that can ‘restrain’ genocidal policies and practices. The press release also served to inform the public that an unwritten common law existed that provided the right to protection. This suggests that although these justice advocates believed law had the potential to protect them from genocide they were relying on a judicial decision rather than a statute to deliver justice. Therefore, it seems that, like justice advocates in Argentina and Sri Lanka, they recognize the limits of political will in providing judicial accountability for state crimes and have appealed to the courts directly instead. The accompanying press release also indicates that Aboriginal justice advocates also engage with the media to inform the public about their claims of genocide and the need for protection.

Challenging the Barriers of the British Colonial Legal System

In contrast to the Argentinean and Sri Lankan case studies, it was not just the political will that made it difficult to access the kind of judicial accountability that these

96 advocates were seeking. For these Aboriginal justice advocates, it was also the colonial legal system that was seen as limited. They considered Australian law illegitimate because it is based on a British legal system that has been imposed on Aborigines and is incapable of adjudicating on indigenous legal arguments. Tent Embassy co-founder Michael Anderson said:

In reality I don’t think British law can give me the justice I want because it goes against everything that exists in our law. And it’s a law that’s been imposed. And you come back to the fact the judges can only deal with what it was set up to do. They have not been set up to adjudicate on Aboriginal law because they don’t have authority – they can’t. So if I’m arguing from within my law then how can they adjudicate? (Anderson Interview, July 23 2014)

Fellow justice advocate Kevin Buzzacott told a reporter that the ‘white man’s’ system showed a lack of understanding of the Aboriginal spiritual connection to the land. He said ‘Aboriginal justice involved punishment to fit the crime, as determined by the elders, with no need of lawyers or judges’ (quoted in Ludlow 1998: 1). So here we see how justice is seen as best achieved by community leaders and Aboriginal law. Another justice advocate Wadjularbinna Nulyarimma said Australia must return to Aboriginal people's natural law system because the current system was not working. She said, ‘We're dying out. The jails are full of our people and the youth black and white. We never had jails in our culture. We just had a law…we knew what punishment we were going to get before we committed any crimes’ (quoted in Jones 2005: 9). Indeed, it has been argued that Australian judicial discretion has been too focused on white assumptions about indigeneity and that indigenous legal systems need more control over sentencing and dispute resolution (Anthony 2013). This suggests that one reason Aboriginal justice advocates may turn to the media is to publicize the limitations of the British legal system and to further recognition of their own indigenous law.

In line with the Argentinean and Sri Lankan case studies, Aboriginal justice advocates were pursuing knowledge and official acknowledgment of state crimes. These justice advocates were also seeking historical knowledge about harm that happened in previous generations under colonial rule and the cultural knowledge that has been lost as a result. For example, The Age newspaper wrote about Wadjularbinna Nulyarimma’s court case:

97 It has been a lifetime struggle to claim what is her birthright. The right to know the land, laws, dreaming and spirituality of the Gungalidda - the people of the Gulf of Carpentaria. Her people. Through whispers in the reserve dormitory at night, she learnt her language. In hurried secret meetings with Aboriginal staff on the cattle properties her husband managed, she learnt the law. As a girl she was caught and punished for the crime of seeking to know who she really was (Taylor 2000: 13).

Aboriginal Tent Embassy justice advocate Lara Pullin described how this search could still be stymied through a reluctance to release archival material or through the dominance of the imperial voice:

My family went through a process of assimilation and institutionalization and attempt at removal and disconnection. It’s a journey of discovery that I’m still on and reconnection. There’s not much from our perspective written down but there’s all the colonial interpretation. That’s all very strongly documented. There wasn’t much living memory left (Pullin Interview, July 23 2014).

In this case, then, the silence about knowledge is not always caused by direct violent means of oppression, but what Haebich calls a ‘public blindness and practised forgetfulness’ that leaves the burden of recall up to indigenous people (2001: 71). Another justice advocate Robbie Thorpe added: ‘the problem is the denial and the ignorance of the wider community and their vested interest. They’re denying us humanity’ (Thorpe Interview, August 11 2014). However, in his doctoral thesis, Aboriginal activist Gary Foley discusses the ‘Great Australian Denialism’, which he argued arises not from ignorance but from a place of knowledge, which is then denied (2012: 21). So here we see a different perspective, in that Indigenous justice advocates may need to overcome this denialism in order to have their claims officially acknowledged. James (2012) observed this distinction in his work on another investigation into colonial harms in settler societies, the Canadian Truth and Reconciliation Commission inquiry into residential schools and indigenous child removal that was established in 2008. He observed that, ‘truth in this context seems to take on a particularly determinate meaning. It means survivor knowledge of what authorities and the dominant society have refused to hear and then denied’ (2012: 200).

98 The Strengths and Limits of Using Law to Let the World Know What Happened

The desire to let the world know what happened was also strongly evident in the Aboriginal Tent Embassy case. During the hearing justice advocate Isabell Coe stated, ‘Now, you people do not know what has happened in this country. You will never know until Aboriginal people stand up and tell you…You will not know until this court case happens because the genocide affects all of us’ (cited in Balint 2015: 236) At the Embassy hearing she asked people to listen to the proceedings: ‘We need you to know the truth and we hope that you give us time’ (cited in Balint 2015: 243). Thorpe, who identified justice as meaning letting the world know what happened, said: ‘Because it’s our story and at the end of the day it’s all about story’ (Thorpe Interview, August 11 2014). So in this case, it appears that these justice advocates already know the story of their injustice. For them, it seems more important to have their story heard and the injustice acknowledged. Another response from these justice advocates was that the truth is a powerful weapon in the fight against injustice. For example, Thorpe said the truth could overturn centuries of historical injustice and radically change Australia. He explained that, ‘the truth will destroy the country. When you learn the truth, you’re going to want to revolt. You’re not going to put up with these criminals doing what they’ve been doing for 200 years’ (Thorpe Interview, August 11 2014). Again, what this indicates is that media is used alongside law to make these claims in the broader public sphere in an effort to let the world know what happened.

It appears that Aboriginal justice advocates are also conflicted about the role that law can play in truth-telling processes. Despite some advocates highlighting the limits of the British legal system as an imposed law, some of them also expressed how it was still an important mechanism for creating a public record of state harm. As Thorpe said, ‘the court cases were for the purpose of putting it on the record’ (Thorpe Interview, August 11 2014). The Canberra Times newspaper reported that Nulyarimma did not expect a legal judgment in her favor, however, she still wanted to be officially heard:

[Nulyarimma] had come to court, she told the judges, not because she expected them to work miracles or even side with the Aboriginal people's arguments, but to have her words recorded, because no-one will listen to a black lady (1999: 4).

99 Fellow justice advocate Isabell Coe complained that the lawyers had been given far more time to address the court than the Aboriginal plaintiffs. She was reported as saying: ‘I understand that this court might not be able to give us what we want, but we need to be able to tell our story’ (Canberra Times 1999: 4). This indicates that Coe felt plaintiffs needed to be able to give their testimony in full. This is often the case when witnesses want to give an historical context to state crimes (Stover 2005).

Justice advocate Robbie Thorpe said that law was unable to play a role in truth-telling because it is an imposed white man’s law that reflects colonial knowledge. For example, when asked if law could play a role in letting the world know what happened, he said:

I think it could have in the past. But we’ve moved on from that. They’re not interested. There’s no law. We created one that came from our stories. They made up laws, not our people. Our law is called humanity. It’s not made by man. It’s made by spirit. Now they control it. I want our law recognized. The real definition of law can and it’s divine (Thorpe Interview, August 11 2014).

Here we see an argument that justice advocates appear more likely to see a role for law in trials and truth-telling if it takes the form they recognize, in this case indigenous law. As Lambourne has argued, ‘traditional, informal justice mechanisms and indigenous reconciliation rituals can provide examples of approaches that treat restorative and retributive justice as interdependent rather than mutually exclusive processes’ (2009: 32). In these mechanisms then, truth-telling can be integral to the legal system rather than being sacrificed for Western law’s procedures.

This case study has highlighted the particular legal barriers for advocates who are pursuing justice for ongoing structural violence and injustice. Despite concerted efforts by justice advocates to make their claims through law, there has been slow progress made on achieving land rights and recognition of harm. This section has also shown how justice advocates continue to appeal to law even though they believe it is an illegitimate and imposed British colonial system that is unable or unwilling to recognize Indigenous law. This seems to be because advocates believe law is still able to provide official acknowledgment of harm. Although these advocates are aware of law’s limits they have used it as a forum to let the world know what happened to them and to publicize the systemic harms that are continuing.

100 4.4 Conclusion

This chapter has highlighted how justice advocates have responded to the limits of the transitional justice processes of trials and truth-telling by using the media alongside law. Although there were differences in the nature of each conflict and official responses to the past, this chapter has identified some important similarities in how justice advocates perceived trials and truth-telling. A strong theme to emerge was the gap between knowledge and acknowledgment of state crimes in each case either through military repression or colonial denialism. Some justice advocates emphasized how they needed to know the details about the harm; they wanted to know where a loved one was if they had been disappeared, where the crime happened, how it took place and who was responsible. For those who had been removed or disconnected from their families and homeland there was a need to know about who they were and where they belong. These demands for knowledge can shift and coincide throughout a transition as can be shown in all three case studies once the truth begins to emerge to pursuing official acknowledgment in law.

Justice advocates see this truth as a powerful basis for making legal and political claims against the state and individual perpetrators. Some of these justice advocates consider legal mechanisms to be critical in facilitating truth-telling because of their capacity to officially acknowledge state harm, put harm on the public record, and hear testimony. This truth-telling process should provide a space for victims but also name crimes and blame perpetrators. However, other justice advocates view the courts to be in opposition to the aim of truth-telling or an illegitimate legal system incapable of mediating indigenous knowledge. The law can also be limited in telling the truth because of restricted legal procedures, its focus on the witness rather than revealing the perpetrator’s crimes, and a lack of legitimacy. It is when law becomes limited in truth- telling that it appears justice advocates engage with the media alongside legal claims to make a wider appeal to the public sphere. Although there is the desire for an official acknowledgment of the truth, it seems justice advocates also want a wider audience to have this knowledge and this suggests they use the media as an unofficial forum to do this.

101 Similarly, many justice advocates in all three cases are pursuing judicial accountability alongside their claims to the media. This is both a retributive and a preventative justice; what is sought is a legal judgment and jail time for perpetrators, as well as protection against future harm and no impunity. For these justice advocates the law is the primary mechanism because it ensures a fair and legitimate process that was lacking during the conflict. Law is also perceived as critical to hold both the individuals and the state’s institutions accountable. However, justice advocates are also aware that law can be limited because of a lack of political will, the attitudes of the judiciary and an inability to recognize indigenous legal systems. Despite this recognition of law’s limits, justice advocates continue to pursue justice through legal claims. This appears to be because law is seen as flexible because its boundaries can be pushed or that it can shift according to public opinion. This belief indicates that justice advocates may engage with the media in order to appeal to public opinion to put pressure on spaces to open up within law. It seems that the media is used to partner law in this activism to draw attention to the limits of trials and truth-telling. The next chapter expands on these findings by exploring how justice advocates view and respond to political, social, cultural and economic injustice.

102 Chapter 5: The Expanded Demands of Transitional Justice

In the preceding chapter, justice advocates expressed their views about the effectiveness of transitional justice in relation to trials and truth-telling. However, underlying this, they also discussed the need for broader political and social change. This chapter builds on the previous chapter’s findings by exploring how justice advocates understand and perceive the expanded demands of transitional justice in relation to political, economic, social and cultural injustice. A key purpose of transitional justice is to help a country shift from a repressive regime to a peaceful democratic state. Posner and Vermeule (2004: 768) have described this as ‘a political and economic transition that is consistent with liberal and democratic commitments’. These goals of transitional justice tend to be outside legal frameworks of accountability and have focused on the political objectives of reconciliation, democracy and social reconstruction (de Greiff 2012; Cohen 1995). They are forward-looking goals that focus on a future that is peaceful and safe. However, law has still been considered to play a central and constitutive role in achieving these goals, even though critics argue that ‘legalism’ is not capable on its own of resolving the underlying political and social problems of a conflict (Teitel 2002; Shklar 1964; McEvoy 2007; McCargo 2015). This chapter explores the strengths and weaknesses of legal processes in pursuing these transitional justice goals by considering the views and experiences of justice advocates.

Transitional justice can be understood as ‘meaningful democratic reform, entrenchment of the rule of law within society, and building a society with institutions that ensure that the kinds of abuses being dealt with will not recur’ (Kritz 2008: 13). This signals that there will be a clear transition from the institutions and structures that perpetrated harm or allowed injustices to occur. Thus, it is important to understand the structural and institutional underpinnings of state crime in order to reform them and rebuild a more just society. In line with other studies of victims and affected communities, such as Stover (2005), most of the justice advocates in this study were keen to discuss the historical and structural context of the conflict. Accordingly, this chapter outlines how justice advocates have understood these systemic injustices in Argentina, Sri Lanka and Australia. This chapter is again divided into three sections for each case study that explore the particular structural causes of that conflict and why justice advocates have responded to these political, social, economic and cultural injustices using the media

103 alongside law. It finds that justice advocates try to use law to make political, social, economic and cultural claims. However, their perceptions and experiences highlight how a domestic egal framework is limited in allowing political discourse and debate because they see it as unjust, serving elites or being complicit in perpetrating state crimes. This chapter suggests that the media is used alongside legal claims to appeal to the international public sphere to put pressure on the state to enact political and social reform.

5.1 Pursuing Economic Equality and Participatory Democracy in Argentina

Following the fall of the junta in Argentina in 1983, the new president Raul Alfonsin faced the delicate task of living up to his election promise of prosecuting all those responsible for human rights abuses while restoring a fragile democracy with an unrepentant military. Upon gaining power, he promised a new vision of democracy that included peace, civil liberties and restoring the rule of law through prosecuting those who were responsible (Brysk 1994). Most importantly, he wanted to restore and protect a new democracy (Feitlowitz 1998). In doing so, he introduced the ‘two demon’ theory in which he laid the blame for the conflict equally on both the military and the armed guerilla movement (Vezzetti 2002). This meant perpetrators from both sides would be prosecuted. Human rights organizations fiercely opposed this policy and maintained that the victims were mostly an idealistic young generation of socialists (Robben 2005). The ‘two demons’ theory has had the result of further entrenching divisions and presenting two irreconcilable histories (Lewis 2002).

Osiel (1986: 162) has persuasively discussed how, within this context, the legal strategies of the different groups reflected their political ideals and interests:

In the President's view, the national security ideology, though pernicious, had been but one recent expression of a larger national culture of authoritarian intolerance. The human rights activists, on the contrary, viewed national security doctrine as not simply the latest form of anti-liberal belief, but as a particular theory of political and economic development in which independent labor unions and social movements had no acceptable place.

So, while the president continued to take a conservative approach to prosecutions and would eventually introduce amnesties, justice advocates continued to push for genocide

104 charges to demonstrate how state crimes were carried out against particular political groups. What this indicates is that the legal framework had become a space in which political worldviews were contested and negotiated. The law in this case is seen as facilitating ideological positions about the conflict that are subjective. However, as Osiel (1986: 179) notes, negotiating and debating these worldviews through the law is difficult and it becomes a battle for public opinion rather than a true possibility of communication between opposing groups. This suggests another reason why justice advocates may turn to the media if they find that their political worldviews are silenced through the law and thus are not being heard by the public.

When the amnesty laws were introduced to appease the military, Alfonsin’s successor Carlos Menem called for national reconciliation saying ‘Argentina will not be possible if we continue tearing apart the old wounds’ (cited in Roniger and Sznajder 1999: 148). As Stockwell (2014) has noted, this national reconciliation is yet to occur with two different groups split into the political Left and the political Right. A sister of one of the disappeared, Eliana, stated, ‘There is a very fashionable word that is about finding within the individual “reconciliation”. Reconcile what? We will never reconcile. Reconciliation is not possible’ (quoted in Stockwell 2014). Argentinean justice advocate and national coordinator at the Service for Peace and Justice Luis Romero said that reconciliation was a meaningless term that was more about covering up state harm. He said: ‘when you say reconciliation you talk about forgetfulness and oblivion. The institutions of human rights have a slogan of memory, truth and justice’ (Romero Interview, November 2 2013). Therefore, it appears that these justice advocates reject reconciliation as a discursive framework that is aimed at forgetting past injustice and can never be genuinely achieved. Rather, it seems that human rights organizations still continue to pursue justice in the public sphere outside the reconciliation framework even though the amnesties were overturned in 2003. Their efforts have become increasingly more focused on political, economic and social equality.

105 Reframing Past Memories to Pursue Social Justice

The Mothers of the Plaza de Mayo have described how they drew on the memory of past harms to continue pursuing justice by taking up their children’s socialist causes.1 By doing so, the Mothers have been involved in public protests to put pressure on the state to address issues of public education, affordable housing, workers’ conditions, gender equality and police brutality. In this way, ‘the Mothers have taken over the struggle for social justice in Argentina from their disappeared daughters and sons’ (Burchianti 2004: 145). For example, Enriqueta said:

The system in Argentina doesn’t help anybody because there are a lot of rights that are not given to everybody. Each day there are more poor people, and more people who get richer and richer. That’s why we Mothers support those who demonstrate and all types of organizations that promote human rights. What we do is what our sons and daughters would have done (quoted in Burchianti 2004: 145).

This demonstrates how these justice advocates also perceive systemic injustices to be the underlying cause of conflict and harms. This view is evident in the testimonies of victims such as one mother María del Rosario who said that ‘you have the anxiety of the loss of a child, the desperation, and when you begin to fight you realize the struggle isn’t about a child, it’s about a system’ (quoted in Fisher 1989: 149, my emphasis). These comments that make claims about systemic injustice challenge the official narrative underpinning the amnesties that the mass atrocities were an aberration of excess force against ‘subversive’ guerilla groups. Rather, they highlight how the human rights abuses are viewed as state crimes that were brought forth by a system of social inequality. This suggests that justice advocates may appeal to the media in order to publicly challenge a dominant narrative that refuses to name human rights abuses as state crimes.

During the 1990s the Mothers began connecting with other social groups such as students, the unemployed and striking workers in their regular Marches of Resistance. Goddard (2007: 89-90) observed that this was when the families of the disappeared

1 As stated in the previous chapter, it is important to note the Mothers split into two groups in 1986 – the Founders’ Line who were more focused on truth and memorialisation and the Association who framed their claims in the broader context of social justice (Goddard 2007).

106 began to make conceptual and political links between ‘issues of justice and the struggle against hunger; the disappeared and police violence; state repression and the [International Monetary Fund] debt’. Therefore, when the crippling 2001 economic crisis occurred the Mothers of the Plaza de Mayo became a key lynchpin in mobilizing a massive response and resistance to the government’s neoliberal economic policies. Other organizations that have supported and advocated for victims such as the Centre for Legal and Social Studies have also broadened their justice claims. For example, executive director Gaston Chillier said:

In the early 1990s CELS broadened its agenda and incorporated the work of human rights violations during democratic times. So today’s a combination of two agendas – the agenda, which is still very current as well we can’t say it’s a past agenda because it’s a very present agenda but at the same time we work on police brutality, torture, prison conditions and economic and social rights (Chillier Interview, October 29 2013).

The Service for Peace and Justice national coordinator Luis Romero also stressed that his organization was still critical of the current government over ongoing human rights abuses and discriminatory policies against minority groups (Romero Interview, November 2 2013). So, as Humphrey and Valverde have argued, ‘human rights politics have expanded in response to disappointment about the kind of state presence produced by democratization’ (2008: 104). As we can see from Chillier’s comments above, it seems the past is still very much in the present despite the transition to a liberal democracy.

In particular, human rights organizations are now reframing the past mass harms to confront present inequalities and violence (Bonner 2014). This is because the contemporary economic instability and inequality has been seen as a continuation of state harms. For example, one mother Tati stated that, ‘the military dictatorship perpetrated a genocide. Today there is a new genocide, an economic genocide. There are many people dying of hunger and for lack of medical treatment’ (quoted in Burchianti 2004: 145). The military dictatorship implemented a ‘neo-liberal economic plan that mired the country in debt while successive governments have introduced free market policies that have led to political corruption, state-led repression, escalating’ unemployment and increasing impoverishment of the working and middle classes (Burchianti 2004: 135). The Mothers viewed this plan under the military regime as one

107 that was supported by other key institutions. At a recent rally to mark the 40th anniversary of the last coup they said: ‘With systematic terror as a method they sought to impose an economic, political, social and cultural plan of hunger and exclusion with a recipe that was written by the economic groups, the United States government, the Church leadership and the participation of the judicial corporation’ (Buenos Aires Herald 2016). Thus, we can see how justice advocates engage with the media to make these connections between the past and the present economic, political, social and cultural injustice publicly known.

The Relationship Between Impunity and Social Injustice

It seems that for some justice advocates, the problem with the neoliberalism model is grounded in a lack of accountability for state crimes committed during the military dictatorship. Regarding the social and economic problems Argentina is facing today, Laura, a member of the Mother of Línea Fundadora victims’ group, asserted that: ‘the Argentine problem is that justice doesn’t work, that there is impunity…if there is impunity, then there is no justice, and without justice, real democracy is not possible’ (quoted in Burchianti 2004:144). Burchianti has interpreted this to mean that ‘impunity has allowed violence to continue, even though the violence of the dictatorship has been transformed into the structural violence of neoliberal policies’ (2007: 144). Thus, over time, it seems that some forms of judicial accountability, such as no impunity, have been associated with the expanded claims on transitional justice such as social and economic equality. This is particularly so in Argentina where a ‘culture of impunity’ thrives from the ongoing failure of the state to protect human rights, provide access to justice and ensure legal accountability (Humphrey and Valverde 2007; 2008).

During this period of amnesty, justice advocates publicly expressed how the domestic legal system was unjust, partial and benefited elites. In response to the 1983 law, one of Argentina’s leading writers and activist Ernesto Sabato told reporters ‘it must be the first time in the history of law that those accused of a crime enact a law absolving themselves’ (quoted in Schumacher 1983). A leading figure in the Mothers of the Plaza de Mayo group Hebe de Bonafini agreed and said ‘never before have murderers been able to grant themselves an amnesty. We are going to demand that this law be declared null and void because it was promulgated by a de facto Government, a dictatorship’

108 (The Globe and Mail 1983). When President Raul Alfonsin implemented the Final Stop law in 1986 and the Due Obedience law in 1987 in response to military unrest, he justified it as necessary to ‘establish democracy in Argentina for all time’ (Hackley 1987). However, the laws were met with mass demonstrations with tens of thousands protesting in the streets. Activists such as Emilio Mignone claimed that the Due Obedience law ‘aggravated the ethical conscience of the nation and compromised the credibility and respectability of the judiciary by benefitting those who tortured and murdered defenseless people’ (Crawford 1990: 35). In this case, justice advocates again appealed to the media to publicize how domestic laws could be changed to suit elites and challenged the narrative that amnesties were necessary for democracy.

The domestic amnesty laws meant the justice advocates of Argentina also turned to international jurisdictions with the help of global support networks (Guzman Bouvard 2002). These justice advocates were appealing to international jurisdictions while still focused on opening up spaces within the domestic legal system. As Sikkink and Walling (2006: 320) noted, ‘domestic groups concentrated primarily on their very active domestic judicial agenda, but they moved with relative ease and fluidity, in foreign, international, and regional institutions as a complement and/or back-up to their domestic work’. Bonner (2005) has argued the appeal to international and regional courts was successful in putting pressure on Argentina to overturn the amnesty laws and, therefore, make the domestic legal system more accessible to justice claims. This suggests that justice advocates use the media alongside law to appeal to the international public sphere to put pressure on domestic legal spaces to open up. In challenging the dominant narrative, justice advocates also expressed what kind of democracy they were pursuing.

Fighting for Deliberative Democracy and a Just Future

Many Argentinean justice advocates vow to continue fighting for what they call a just future. One mother, Juanita de Pargament, said, ‘the Mothers have this memory, this pain, and we are working for the future so that new generations won’t live through what we’ve lived through’ (quoted in Fisher, 1989: 152). According to Beatriz de Rubenstein: ‘the struggle goes beyond the lives of our children. It’s about the future of our country’ (quoted in Fisher, 1989: 51). Even in more recent times, these victims’

109 groups have continued to protest for human rights protection and social equality. During a speech to mark the 40th anniversary of the last coup, they said, ‘without rights there is no democracy, because when everything is concentrated above, below remains poverty, hunger, unemployment, repression’ (Buenos Aires Herald, 2016). This demonstrates how justice advocates still pursue justice even after 40 years of a conflict ending and the country shifting to a liberal democracy. But what exactly do these advocates mean when they discuss fighting for justice for the future?

It appears that some Argentinean justice advocates believed a just future meant a form of democracy that allowed people to express themselves freely in the political process. For example, one mother Tati said in criticizing the neoliberal model for perpetrating economic genocide, ‘the Mothers don’t want this democracy, we want a more participatory democracy in which human rights will be respected’ (quoted in Burchianti 2004: 145). This suggests that these justice advocates believe that representative democracy is not necessarily the ideal model in a just future. Rather, they expess how it is about the public being part of a deliberative democratic process and having their human rights recognized and respected. Ferrero (2016) has argued that the transition in Argentina developed a particular form of liberal democracy in which non-government actors drive the political process (2016). This means that, ‘Argentina has developed a number of alternative means, beyond the hard-won institutional mechanisms, for forcing problematic issues on to the political agenda and challenging the dominant political culture that – in Argentina’s bloody past – was able to normalize injustice’ (Ferrero 2016). Thus, in this case, it appears that a transition to a just future does not end when there is a liberal democracy. Instead, these justice advocates continue to pursue justice by putting pressure on the state to address ongoing human rights violations and social inequality. Importantly, Bonner (2014) has highlighted how the media has played an integral role in reframing past abuses under the military regime into contemporary structural violence. This suggests that justice advocates appeal to the media as an institutional mechanism to encourage and enable participation in political processes and continue to force problems onto the political agenda. It appears that a just future is one in which injustice is no longer able to be normalized.

In the Argentinean case, we see how some justice advocates have challenged the idealized endpoint of a liberal democracy. In particular, some justice advocates have

110 resisted the ‘two demon theory’ of culpability and the concept of reconciliation. This suggests that, for some, the political transition has not represented a ‘rupture’ point at which the society has ‘moved on’ from past harms under the military regime. Instead, Argentinean advocates continue to pursue judicial accountability, even after decades of democracy. This appears to be because amnesties have encouraged a culture of ‘impunity’, which has been blamed for perpetuating continuing social and economic harms. This section shows how some Argentinean justice advocates are reframing past harms to highlight ongoing injustice and to push for a more participatory form of democracy that ensures human rights abuses are not normalized in the future. In light of this, it appears that, to meet the needs of justice advocates in this case, transitional justice is a long-term framework that also needs to address continuing economic and social inequalities.

5.2 Pursuing Rights to a Homeland and Self-Determination in Sri Lanka

Unlike Argentina, the conflict in Sri Lanka has been framed as an ethnic civil war based on the division between the Sinhalese and Tamil people. However, there are strong arguments that it should also be seen as a political conflict as the central contestation arises from different identity groups negotiating self-determination over the territory (Anonymous 2011). Furthermore, political elites have steered the violence and there have been political efforts to resolve the violence (Anonymous 2011). This is despite the country being a liberal democracy since independence in 1948. However, the political structure has been seen as a lack of mature democratization driven by a paucity of intellectual debate about democracy and the rule of law (Perrara 2008). After the conflict ended in 2009, this ‘immature’ democratic system has become even more diluted through constitutional changes to become a soft authoritarianism (De Votta 2010). Therefore, it is argued ‘a transitional justice agenda would need to include proactive strategies for political transformation’ (Anonymous 2011). Banadarage (2009) calls for a ‘multipolar’ approach to the Sri Lankan conflict that considers other systemic social and cultural problems such as religion and language parity. This section considers how justice advocates have responded to these systemic political, social and cultural injustices, using the media alongside law.

111 The Tamil diaspora have been at the forefront of advocating for political transformation and, in particular, a separate state. There are over 1 million Tamils living outside Sri Lanka, mostly residing in Canada, the UK and India (Orjuela 2012). Furthermore, Orjuela’s (2008) examination shows how the Sri Lankan diaspora, both Tamils and Sinhalese, have acted as ‘distant warriors’ by extending national mobilization, hostilities and polarization to the world stage. The final stages of the war in 2009 prompted a renewed activism in which hundreds of thousands of Tamils protested in the streets and formed new organisations to call for international intervention and an end to the violence (Thurairajah 2010). However, some of these organisations also continued to push for Tamil independence, which ‘widened the gap’ between the diaspora and those living in Sri Lanka (ICG 2010).

Since the conflict ended in 2009, there has been a gloomy outlook for Sri Lanka’s ability to undertake genuine transitional justice. The process of transitional justice is already an inherently complex and fraught one. In the case of Sri Lanka this is complicated further under the circumstances of a ‘victor’s peace’ and the ‘friction’ between international and domestic actors (Hoglund and Orjuela 2012). Hoglund and Orjuela (2011) have examined how the asymmetric end to the war in which the government claimed a triumphant and crushing victory means there is no motivation for a negotiated peace agreement and a limited interest in imposing justice. Another barrier is that shifting international power relations have left more interventionist actors such as the US and European Union with less ability to press for accountability (Hoglund and Orjuela 2011). Furthermore, there are fears that Tamil political leaders within Sri Lanka who do speak out about war crimes put themselves in danger (Anketell 2011). So far, what little transitional justice mechanisms there have been implemented, have been facilitated through domestic institutions, leaving the needs of diaspora communities unfulfilled despite the valuable contribution these communities can make (Rimmer 2010; Mey 2008; Haider 2012). These significant obstacles to a domestic transitional justice process offer some explanation for why the Tamil diaspora have so vigorously turned to international courts and the media. However, the International Crisis Group (2010: 15) has argued that ‘these efforts are largely political and appear to be more concerned with reinforcing feelings of victimization within the diaspora than seeing justice served’. This suggests a need to look at what kind of political change these advocates may be pursuing through the law and media and why.

112

The Tamil diaspora have been positioned as constituting a critical lifeline to the LTTE through fundraising and propaganda (ICG 2010; Chalk 2008). Significantly for this study, Orjuela (2008: 449) highlights how ‘diaspora groups play an important role in providing media space and disseminating information internationally in support of “their” side in the conflict’. Yet, in contrast, the Tamil transnational community has also been described as a ‘victim diaspora’ (Cohen 1997; Suntha 2011; ICG 2010). Like other groups who have experienced the flight from conflict this has left them with a ‘sense of collective trauma’ (Suntha 2011: 9). The ICG (2010: 4) describes how ‘as a result of their exile many Tamils justifiably feel a strong sense of victimization and injustice…a palpable sense of guilt pervades the Tamil diaspora. Privately, some express shame for leaving Sri Lanka while other Tamils fought and died for the cause’. After the 2009 defeat, these feelings have been compounded by humiliation and powerlessness (ICG 2010; Jayawickreme, Jawawickreme and Miller 2011; Brun and van Hear 2012). These observations suggest powerful motivations for why these advocates have been so active in pursuing justice.

A compelling insight into how this victim identity may be connected to the politics of self-determination is made by an anonymous diaspora leader who said ‘Tamil Eelam has been as much a metaphor for justice as a concrete goal, a separate state being the only space where justice seemed possible for Sri Lanka’s Tamils’ (ICG 2010: 12). This suggests that justice for Sri Lankan advocates may be their own state ‘where their collective identity is recognized and their physical security guaranteed’ (ICG 2010: 12). As Gowing (2013: 6) found in studying the Sri Lanka case, ‘articulations of transitional justice are closely bound up with the political identity and interests of those who express them with actors utilizing the language and practices of the paradigm as a means of fulfilling their goals’. This indicates that Sri Lankan diaspora advocates view transitional justice as a framework for finally achieving political rights to a homeland and self-determination.

Challenging Democracy as a Structure for Discrimination

Sri Lankan justice advocates expressed how, since independence from British colonialism, the political system has entrenched discrimination against Tamil citizens.

113 This systemic discrimination was also raised in the legal cases made against Sri Lankan political leaders and former military commanders. For example, in the Article 15 request to the International Criminal Court to arrest former army leader Palitha Kohona, the Swiss Council of Eelam Tamils and Tamils Against Genocide asserted the conflict was a ‘national liberation war for internal or external self-determination, in political and military continuation of the armed struggle waged against subsequent democratically-elected racist majority-Sinhala Buddhist administrations in Sri Lanka’ (2011: 13). For some justice advocates, the democratic system is seen as the root cause for political, social and cultural injustice. Tamils Against Genocide co-founder Muthuthamby Sreetharan said historical discrimination had become embedded in Sri Lanka because the democratic system had been established in a way that polarized two ethnic groups. He stated that:

To begin with, democracy when there are only two groups of people is not democracy. It provides a framework for oppression and suppression. There is one group that is going to be a permanent minority under the guise of democracy and the majority is going to do whatever they want. It’s the word democracy that has spoiled our country. People think ‘Sri Lanka is a model democracy so why are these people having issues?’ (Sreetharan Interview, October 15 2013)

From this perspective, democracy is considered to be a structure that perpetuates oppression of minority groups. In Sreetharan’s opinion, democracy only exists when there is recognition that a society is pluralistic and not based on just two groups of people. Furthermore, this justice advocate stated that this oppression could continue without sanction from the international community because the model of democracy is considered to be desirable following conflict. This highlights the challenge of how transitional justice can be expanded to meet the demands of justice claims in a notional liberal democracy, particularly when a conflict is ongoing (Green 2012; Sriram 2002).

Other justice advocates expressed how the Sri Lankan democratic system in the post- independence era had established institutions that were used to commit ongoing state crimes. During an interview with the British Tamil Forum’s Ravi Kumar he stated:

Since 1948 all the major state institutions in Sri Lanka have been an instrument of genocide, whether it be media, political system, public service or religious institutions. All of them became a tool of genocide. Those institutions still exist

114 and the same genocidal agenda continues without resistance (Kumar Interview, October 11 2013).

Here, we can see how this justice advocate perceived that democratic states could still have functioning institutions that were supposed to act under a separation of powers and, particularly in the case of the media, to keep governments accountable, yet they were being used as instruments of genocide. This raises three significant challenges: holding genocidal institutions to account through individual prosecutions, applying a transitional justice framework to what has been considered a liberal democracy and rebuilding institutions that have been operating under a liberal democracy (Balint 2014; Winter 2013; Kritz 1995).

According to some justice advocates, the impact of this structural and institutional perpetration of state harm was to develop a culture of genocide. For example, the Tamils Against Genocide grand jury indictment against former military senior officers Gotabaya Rajapaksa and Sarath Fonseka in the US described how the democratic polarization of two groups into a minority and a majority meant there was ongoing harm that encompassed all aspects of Tamil life. The indictment stated that:

A culture of genocide seeks to destroy a minority racial, ethnic, or religious group by disintegrating their political and social institutions, language, national identity, religion, and economic existence by: undermining their physical security, liberty, health, education, communications, mobility and dignity; and by creating a permanent state of psychological or emotional trauma or anxiety through never- ending displacements or otherwise (2009: 5).

In these comments and claims we see ‘the social injustice and patterns of inequality, discrimination and marginalization that were underlying causes of a conflict and that inflicted major suffering and victimization on vast swathes of a population’ that needs to be addressed in transitional justice (Mani 2008: 253). It appears that some justice advocates challenge Sri Lanka’s status as a functioning democracy and want a social, political, cultural and economic transformation of the post-conflict society. In doing so, it appears they seek to negotiate a future that looks different to the liberal democracy that has existed since independence. Again, this raises the challenge of how transitional justice alone can transform a society from a ‘culture of genocide’ to ‘put forward a new dominant ideology inspired by radically different values to those present during the

115 repression or the conflict’ (Sandoval 2014: 184). This suggests that transitional justice processes in that country may need to address how to rebuild a society with institutions that are inclusive of Tamil identity, culture, language and religion. Thus, the question arises about how exactly justice advocates believe this institutional injustice can be redressed and the extent to which transitional justice and its legal processes can play a role in this reconstruction.

The Quest for Rights to a Homeland

Journalists for Democracy in Sri Lanka co-founder Bashana Abeywardane identified protection against future harm as what justice means to him. However, he associated this with rights to a homeland and self-government. He stated that protection against future harm lies in giving victims the right to live freely:

Accepting the right to be in a place where victims could manage their affairs means protection against future harm. Protection means not just bringing out some laws, it’s a matter of an assurance they have the right to manage their affairs the way they like. To determine what they like or don’t like. Protection is the accepting of their right to manage their affairs. As long as it is guaranteed there will be no need for any one to guard them because they can manage their affairs as they want and that will ensure they have future protection (Abeywardane Interview, October 9 2013).

The comment that ‘there will be no need for anyone to guard them’ has particular resonance in Sri Lanka where there has been a strong military presence in Tamil- dominated regions for several decades (Wickremesekera 2016). From this perspective, however, the protection against future harm is seen to require more than just a few laws. Rather, an acceptance of rights to a homeland is what is sought and some form of guarantee or assurance. This suggests there is scepticism from some justice advocates about law’s capacity to be a binding solution to deter future violence. Rather, it is a political solution such as a separate state that is seen as a guarantee against future human rights abuses. This suggests that justice advocates may be using the media alongside legal cases to draw attention to political claims.

British Tamil Forum general secretary Ravi Kumar also identified rights to a homeland as what justice means to him. When asked why he responded:

116 For a long long time, more than 2000 years it is a well-established fact that Tamils are a distinct nation and have a very unique continuous land mass in the north and east so we have a traditional homeland and a distinct culture and language and a unique economy. Because we are a nation we have the right to self-determination. For any political solution the right to self-determination has to be accepted. That is what the very large majority of the Tamils, especially the diaspora, demand. We had our own rule and kingdom before 1948 when we were colonized. We are not fighting for a homeland. We are fighting for our lost homeland. We are not claiming anything new. We do not say we are a minority – we are a nation. We never accept we are a minority (Kumar Interview, October 11 2013).

What this perspective highlights is how rights to a homeland are seen to be grounded in the recognition of a community as having unique characteristics, such as culture, language and economy. It also brings into focus the harmful impact that colonialism had on these rights and who is responsible for this structural injustice (Lu 2011). For this justice advocate, it appears that self-determination comes about as a result of a political solution. Again, this perspective raises the question about how transitional justice and legal processes can secure this right to a homeland.

Kumar associated rights to a homeland with accountability and reconciliation. He stated that without accountability, the underlying grievances will continue and further damage ethnic harmony between the Tamils and the Sinhalese. He said:

Once an accountability process is established and the people know who are the perpetrators and where are the victims and whether they are alive or dead people may start thinking about living side by side as two nations. Without accountability there can be no reconciliation. There are many other reasons for accountability that will lead to permanent peace (Kumar Interview, October 11 2013).

Like the Argentinean case, this perspective highlights how judicial accountability and no impunity is seen as a necessary precursor to political and social justice. This comment shows that Kumar also perceives rights to a homeland as underpinned by truth-telling in terms of knowing who the perpetrators are and where the victims are. This indicates the view that trials and truth-telling may lead to a political solution of a separate state.

However, in contrast to Argentinean justice advocates, Kumar also expressed how rights to a homeland and an accountability process can lead to reconciliation and peace.

117 One reason for this may be that some justice advocates perceive reconciliation to be a state-driven framework that is at odds with accountability for crimes. This was demonstrated in Kumar’s initial reaction to the statement when he said ‘I think this is not justice because the way the government is conducting reconciliation is not reconciliation’ (Kumar Interview, October 11 2013). This suggests that reconciliation can mean justice if it is not a state-driven process. This is also consistent with the idea that reconciliation is dependent on an official acknowledgment of the past (Cohen 1995). The acknowledgment can also replace loss and pain with political dignity (Agger and Jensen 1993). This seems to be particularly pertinent for the Tamil disapora who have felt humiliated and powerless after the war (ICG 2010; Jayawickreme, Jawawickreme and Miller 2011; Brun and van Hear 2012). A former Australian diplomat who was based in South Africa during the apartheid era and in Sri Lanka, Bruce Haigh identified reconciliation as what justice means to him. When asked why he said, ‘because it’s the only way you’ll overcome a big social problem and division is to sit down and work it out to see where the power balance is’ (Haigh Interview, July 12 2014). This view of reconciliation does not ignore underlying issues of power, but rather suggests that in bringing two sides together there can be a political negotiation of a justice future.

However, not all Sri Lankan justice advocates agreed that reconciliation means justice. One advocate expressed how the notion of reconciliation is too vague to provide any substantive changes in a post-conflict society. Sri Lankan journalist Bashana Abeywardane said: ‘the whole discourse in Sri Lanka is revolving around reconciliation, which doesn’t mean much because the substance of it, nobody knows. The word is being carried around but nobody knows what it means and what changes it would bring’ (Abeywardane Interview, October 9 2013) Another advocate Sri Lankan lawyer Tasha Manoranjan said this vagueness around reconciliation meant that governments could use it as a cover to subjugate claims for self-determination:

The Sri Lankan version of reconciliation means you whitewash everything that occurred and lose your ethnic identity and pretend to be Sri Lankan in order to avoid the perception of conflict. It’s just a meaningless word now in the way the Sri Lankan government has manipulated it to cover an array of sins. But it’s not just this current government that has manipulated that terminology. I think every Sri Lankan government has tried to make the ethnic problem disappear by

118 promoting development and political reconciliation and what happened in 2009 was just the peak of that (Manoranjan Interview, October 22 2013).

These comments echo the sentiments of those Argentinean advocates who perceived reconciliation as a vague concept that is used by the state to avoid meaningful political and social reform while also subverting the past. As discussed above, both the Sri Lankan and Argentinean justice advocates view the state’s institutions as perpetrating a ‘culture of genocide’. So, this challenges the idea of a reconciliation in which citizens can trust the norms and values of the ruling institutions (de Greiff 2008). Perhaps though, a reconciliation that originates from within affected communities, rather than being state-driven, and that brings opposing sides together to negotiate power-sharing can contribute to making institutions trustworthy, especially if it is underpinned by trials and truth-telling.

Law’s Limited Role in Political and Social Change

In contrast, another Sri Lankan justice advocate Jayaprakash Sittampalam Tissainayagam, expressed how democracy was what justice means to him. However, he perceived it as an ideal where citizens can reach their highest potential:

When I say democracy what I mean is not parliamentary democracy or presidential, what I mean is where each person has self-determination – they have the facility and ability to express themselves, to realize the highest potential in that environment. To me justice is best expressed in an ideal democracy, perhaps somewhere the closest we can come is Gandhi’s expression of the self-sufficient village. What I want to emphasize is I don’t need parliamentary democracy, I don’t need representative democracy. What I’m trying to say is an environment where the individual and collective human potential can be expressed and realized at its highest (Tissainayagam Interview, October 21 2013).

Tissainayagam also associated self-government and social equality with the realization of that ideal. As he put it, ‘we are talking about people having self-determination. And when you have social equality, doing that is easier than having a hierarchical society where you have people oppressing others’ (Tissainayagam Interview, October 21 2013). So, here we can see how self-determination is also connected to being free from oppression, although from this perspective it is social equality that can help facilitate this freedom. Like the Argentinean case, this notion of democracy is one in which individuals can participate in political processes actively and freely (de Greiff 2012).

119 This suggests the media may play a role in this idea of justice as a deliberative democracy where citizens can express their potential in the public sphere. So, how can transitional justice, and more particularly legal mechanisms, contribute to these goals of self-determination, rights to a homeland, a genuine reconciliation where power can be negotiated, peace and an ideal democracy?

Like the Argentinean case, Tissainayagam, who had direct experience of being charged under the domestic legal system, believed that law was limited as a mechanism for justice because it served the elites and was an instrument to oppress minorities. He stated that:

So, as we know justice and laws are intertwined. Laws are basically fashioned by elites and part of it is through human experience and part of it helps elites, more than non-elites. It also helps to keep stability of the state – political and social. In the state, elites have more benefit out of those laws than I do, because the moment you break it, the moment you feel deprived and break it I am deemed as a lawbreaker and the law enforcement machinery comes down. So, that is to my mind, the rule of the law. Just because we are able to enforce the law always perfectly, it doesn’t mean all groups in society are getting justice (Interview 2013).

These views appear to reflect Tissainayagam’s experience of Sri Lankan law in which he was accused, held without charge, tortured and sentenced under a domestic legal system that drew international criticism. He said he realized soon after being detained that he would need to take legal action in the form of a fundamental rights petition to counteract what he saw as an unjust system. He observed that, ‘as time went by my wife and I were less and less convinced that we would find justice in Sri Lankan courts. That is because as journalists we had seen the workings of the Sri Lankan legal system – I had also written about Tamils detained and charged under the [Prevention of Terrorism Act] – and did not expect justice’ (Tissainayagam Interview, October 21 2013). What this demonstrates is how some justice advocates appeal to what they see as an unjust system while simultaneously being subjected to what they believe is an unjust system that benefits elites. This suggests that the media may be used alongside law to highlight these contradictions to the international public sphere and to form insider-outsider coalitions as the Argentinean justice advocates did successfully (Sikkink and Walling 2006).

120 Like the case of Argentina, Tissainayagam also used domestic law first to put pressure on the international community. He appealed against his sentence of 20 years hard labor because ‘we had to exhaust all legal remedies domestically if some sort of international remedy was to be tried, as such an appeal was important…it was important because international human rights organizations and governments interested in seeing me free, had to realize we were using legal mechanisms (and largely failing) to push at a political level with the Government of Sri Lanka for my pardon’ (Tissainayagam Interview, October 21 2013). Therefore, it seems that justice advocates are aware that to get international support or be heard at the international level, domestic legal mechanisms must be used even if they have no faith they will get justice in these local jurisdictions. In doing so, it appears justice advocates aim to highlight to the international community, through media and the law, that the legal structures of the state are politicized and oppressive to cultural minorities. Furthermore, by using the media in this way, it is hoped this puts political pressure on the state to address human rights violations.

Other Sri Lankan advocates agreed that the domestic legal system was limited in playing a role in political and social change. For example, British Tamil Forum general secretary Ravi Kumar said ‘for the last 65 years we lost the local judicial system and impunity prevails whether it be an ordinary soldier or a top commander or the president of the country. It is a case where there is no accountability’ (Kumar Interview, October 11 2013). Kumar explained that when the democratic system delivered the Tamil United Liberation a key electoral victory that made them the opposition in 1976, the government intensified the oppression. Kumar saw this as the turning point when the government used the legal system to perpetrate state harms:

The youth started losing faith in the democratic system and the youth movement became supporters of armed struggle. Whoever became the dissent voices were targeted, arrested, tortured or eliminated. It became in an institutional way – they can be arrested without any court order or warrant, they can be kept for days and days, they can be interviewed through torturous methods which cannot be challenged in the courts. This is one of the examples for how the genocide has become institutionalized. For them to control this dissent through torture, disappearance and elimination killings, they want to keep this system forever, for any political dissent they want this to be in the legal system (Kumar Interview, October 11 2013).

121 As we can see then, some justice advocates view the domestic legal system as a political instrument of genocide that can be used when there is dissent. This statement echoes the Argentinean case where there was a gradual deterioration of the rule of law and the legal system became an institution for quelling political dissent and covering up human rights abuses. Again, we see how law can be both a partner in state crime and a partner in pursuing redress for state crimes (Balint 2012).

Other justice advocates also expressed how flaws in the domestic legal system meant that international law was the best mechanism for ensuring political change. Bashana Abeywardane said:

As far as the law is concerned, law is what it is all about. It is about accepting the victimhood of the population and guaranteeing the protection of the victims. That can only be done by the intervention of international law. The political solution always stops short of making concrete changes on the ground. It comes out in papers and in words but as long as there is no legal obligation to fulfill it, it can always be rolled back. The legal backing is essential to make sure the political solution will be implemented. If the solution is going to be homeland then it can be on paper but it needs a legal obligation to implement it. In my context, there is nothing that will happen inside the country because the law doesn’t have the capability (Abeywardane Interview, October 9 2013).

This statement indicates that law is still considered central in not only protecting victims, but also in reinforcing political solutions. For Abeywardane, this meant the intervention of international law to make concrete social and political changes. Without this international legal mechanism, he said there was no obligation to implement political solutions. Abeywardane reasoned that this was because Sri Lanka’s law was not capable of performing these functions. Once again, this confirms how justice advocates appeal to the international public sphere to put pressure on the state for a legally binding political solution when domestic legal systems are considered limited or compromised. This suggests that justice advocates try to use the media to do so.

The Media’s Role Alongside Law in Advocating for Political Change

Another justice advocate, Australian defense lawyer Rob Stary who represented Jegan Waran in his case against the former Sri Lankan president Mahinda Rajapaksa in Melbourne, confirmed that the media was used alongside legal cases that had political ramifications. Stary had successfully defended several Tamil men accused of

122 financially supporting the terrorist organization LTTE and viewed these cases as politically motivated. He said that the Waran case was a chance to fight back against the view that all Tamils were terrorists and a way to highlight war crimes that had occurred at the end of the country’s conflict. When asked why he had engaged with the media in a press conference after filing the war crimes indictment he answered:

If you want me to be completely candid about this we know these things are propaganda. These are important propaganda cases. We know that in the prosecution of the Tamil Tigers we know that it was initiated at the behest of the Sri Lankan government. They said the only way we’ll break the Tamil Tigers domestically is if we break the back of the Tamil diaspora. We have to stop money being transferred back to Sri Lanka. And we’ve got the most compliant Western country in Australia and we know this because all these documents get revealed inevitably and we thought ‘well we’ve got Rajapaksa coming here for [the Commonwealth Heads of Government Meeting], we know they were involved in war crimes we’ve got documentary proof, we’ve got eyewitnesses, we know there is a genuine bona fide claim, we know the government won’t do anything so we’ll take the initiative, we’ll lay the charge for war crimes’… We knew that CHOGM was a pretty good time to do it and we knew we had power and we had the evidence and so we said we wanted to draw public attention to his war crimes so we used that opportunity. And we know that a lot of these prosecutions are politically motivated – the Tamil Tigers particularly – because of the cultural, ethnic and religious territorial conflict that had been going on for years, it wasn’t some jihadist insurgence. And so we know they contaminate the public view, so we’ve got to fight back. So we’ve taken a much more overtly aggressive approach ourselves in all of those politically motivated cases (Stary Interview, November 19 2013).

Stary is quoted at length here to demonstrate in frank detail the motivation behind using both the law and the media to pursue political justice. Firstly, it appears that Stary believes there was a genuine case of war crimes backed up by evidence that could be pursued in the legal forum. However, the timing of this legal case to coincide with an international gathering of political leaders also meant that it would ‘draw public attention’ to the justice claims. We also see here again that media and the law are used to counter what Stary views as misinformation about Tamil Tigers being ‘jihadists’ rather than fighters in a long-running and complex conflict. In this way, he admits that cases of state crimes are ‘important propaganda cases’. This statement suggests that, like the Argentinean case, legal strategies are also a battle for public opinion about how the conflict is framed. In this case, it challenged the dominant worldview that the state had defeated a terrorist organization, and was aimed at reframing the actions taken by the Sri Lankan state as war crimes.

123

However, Tissainayagam also discussed how the media and law could play a role in a form of ideal democracy. In his view, the media could help move towards that ideal ‘by continuous criticism of the present environment, that is legal, political, cultural and social, and constantly calling it into question so they might be able to move a population or a people towards democracy’ (Tissainayagam Interview, October 21 2013). He discussed how the media is a tool in democratic governance that highlights when society’s rules have been violated such as instances of corruption and human rights abuse. Conversely, Tissainayagam highlighted how, when media freedom is violated, the law uses its power by enforcing provisions in a bill of rights or constitution that allows freedom of speech. But as he noted, ‘in countries like Sri Lanka where there is a deficit of democracy neither institution works properly and new ways are needed if good governance and rule of law are to be restored. When there is institutional failure much depends on individual commitment for their restoration’ (Tissainayagam Interview, October 21 2013). Tissainayagam said that if we are to question the media’s role in pursuing political justice we must go beyond just considering what this means in the context of the liberal democratic model. As he put it:

In some ways it means asking the question whether the political/social institutions help in individuals living moral lives. If not, what sort of institutions should we devise? Then, what role the media should play in bringing about that change? (Tissainayagam Interview, October 21 2013)

This perspective goes beyond considering the media’s role in putting pressure on legal and political institutions to respond to state crimes. Rather, this view questions how the media may play a role in creating a space where citizens can discuss and debate how to create state institutions that function in a way that can move society towards an ideal democracy. It ponders to what extent the media can be a democratic forum in which the future can be negotiated.

This case study has highlighted how injustice in Sri Lanka was seen as continuing under a liberal democratic regime in a way that entrenched discrimination and promoted, or at least condoned, a ‘culture of genocide’. It appears that these justice advocates used the media alongside law to challenge this political structure and pursue rights to a homeland, self-determination and an ideal democracy where individuals can freely

124 express themselves. The case of Sri Lanka also indicates that these justice advocates appealed to domestic law first, even though they recognize its limits, as a first step to appealing to international law. Thus, law in this case is still considered a critical mechanism for putting pressure on the state to make political and social changes despite its limitations.

5.3 Pursuing Sovereignty and a Treaty in Australia

The Australian case study shares some similarities with the Sri Lankan experience in terms of how justice advocates perceive the harms of colonialism and its continuing impact on their rights and institutions. However, it differs from the Sri Lankan and Argentinean case in that it has been framed as largely an historical conflict between settlers and indigenous people. There have been calls for the expansion of transitional justice as a useful concept to consider how Australia can redress past state harms as it has become evident that the implications of these harms continue today (Cunneen 2008; Orford 2006; Henry 2015; Balint, McMillan and Evans 2014). Like Sri Lanka and Argentina, the state has positioned the goal of reconciliation as central to reckoning with the past in Australia. In fact, it has become the dominant paradigm for providing redress through requests for apologies, reparations and truth commissions (Henry 2015). However, this section examines how the justice advocates cited here have resisted this framework of national unity in favor of sovereignty, self-determination and rights to a homeland. It explores how and why these advocates have used the media alongside law to pursue these goals.

The concept of reconciliation was introduced nationally and enshrined legally in 1991 with the Council for Aboriginal Reconciliation and was recommended in the findings of the Royal Commission into Aboriginal Deaths in Custody (Cunneen 2006). The notion of reparations was overtly connected to reconciliation in the 1992 Redfern speech Prime Minister Paul Keating made linking injustice with European settlement. In 2008, Prime Minister Kevin Rudd issued an apology to the Stolen Generations in the name of reconciliation. Yet, these efforts, couched in the term of reconciliation, have drawn criticism for ignoring the question genocide (Barta 2008). This preference for reconciliation over judicial accountability also denies the Aboriginal experience and claims. As Behrendt notes, ‘the chasm between the use of the term “genocide” as a descriptor of experience by indigenous people and the refusal of the legal system to

125 consider those acts as amounting to genocide says more about the conceptual leaps that still need to be made in the institutions of Australian society and those in positions of power than any delusion about the past by Indigenous people’ (2001: 146). Thus, we see how the legal system is limited at officially recognizing and acknowledging genocide in Australia while the concept of reconciliation can obscure claims of justice.

According to some scholars, the focus on reconciliation can be highly problematic and may even cause greater harm (see for example Little 2012; Moon 2006). If we take the case study of Australia, we can see this play out in the so-called ‘history wars’. Thus, political elites have used a language of reconciliation that is at odds with indigenous calls for an agenda that includes land and economic rights (Behrendt 2003). Moran (2012) has argued that reconciliation in Australia is unsuitable and potentially damaging because first, its ambiguity can encourage disagreement and, secondly, it assumes that the parties speak the same language and can equally participate in public discussions about state harm. Others have criticized Australia’s reconciliation project as ‘coercive’, an ‘assimilationist nation-building exercise’ or enabling a ‘postcolonial amnesia’ that wipes away the memories of settler harms (Altman and Hinkson 2007; Short 2003; Luker 2005; Durbach 2008). Furthermore, reconciliation does not provide a framework for negotiating any kind of formal treaty or agreement between indigenous and non-indigenous Australians (Short 2003). This is a particular oversight given the history of terra nullius and the lack of any treaties at the founding of settlement or subsequently despite the 1992 High Court Mabo ruling that it had been incorrectly applied. Indigenous activists have continued to make claims for a treaty. Therefore, the framework of reconciliation appears to be limited in facilitating transformative social or political transformation.

Unsurprisingly, no Indigenous justice advocates in this case study think that reconciliation means justice. For example, Kevin Gilbert questioned what Aborigines were supposed to reconcile to?

To a holocaust, to a massacre, to the removal of us from our land, from the taking of our land? The reconciliation process can achieve nothing because it does not ... promise justice. It does not promise a Treaty and it does not promise reparation for the taking away of our lives, our lands and our economic and political base. Unless it can return to us those very vital things ... what have we? A handshake?

126 A Symbolic dance? An exchange of leaves and feathers or something like that? (Gilbert 1993: 2)

Fellow justice advocate Eleanor Gilbert affirmed that ‘reconciliation is no good. There can’t be reconciliation without justice. It’s like warm and fuzzy stuff’ (Gilbert Interview, July 23 2014). This suggests that Australian justice advocates use the media alongside law to challenge the narrative of reconciliation and highlight their own claims for a treaty and sovereignty.

Challenging Liberal Democracy and the Dispossession of Land

These advocates also expressed their desire to highlight how historical injustices had long-lasting effects. Aboriginal Tent Embassy co-founder Michael Anderson discussed how the Australian historical records show that there were orders from the British empire not to dispossess indigenous people of their land, cultural rights, hunting rights and economic rights, however these were ignored with consequences that are still being resisted today. Anderson argued that, ‘it was ignored in favor of the white settlers who’d come and the immigrants who were coming and so they got the benefits of those lands…And 200 years and more have gone past now and we’re just starting to fight these things in the courts’ (Anderson Interview, July 23 2014). Again, as in the Sri Lankan case, these comments reflect how some justice advocates believe that the oppression of rights and dispossession of land can continue to be perpetrated in a liberal democratic state over many years. Aboriginal justice advocates are also using legal cases against individual parliamentarians to make justice claims about systemic and historical harms. Yet, Australian governments have been careful to avoid accountability mechanisms when considering redress even though Indigenous advocates have been successful at getting the legal claims heard in the courts (Henry 2015; Curthoys, Genovese and Reilly 2008). Thus, the limits of law have made it difficult for justice advocates to successfully make these claims.

Justice advocate Robbie Thorpe also described how the initial harm of conflict, dispossession of land and oppression of rights in Australia had evolved over time and expanded to include other social injustices. He stated:

127 They’ve been exterminating people for 200 years. Not so brutally as it first began with small pox, machine guns and the wholesale butchering of the hunting parties shooting us and the nuclear bombs. We faced every form of war you can imagine. And over a hundred year period they reduced our population to 1 per cent of the population. That’s genocide personified…They manage our wealth, they manage our heritage, they manage our children but we’re to blame for the problems in our community. But they brought the alcohol, they brought the drugs. They imposed these conditions on us with the intent to destroy us (Thorpe Interview, August 11 2014).

These comments demonstrate how justice advocates perceive a continuation of state crimes from dispossession to armed conflict then to the introduction of alcohol over 200 years since the time of colonization. In what Wolfe (2001: 871) calls the settler colonial ‘logic of elimination’, the harms against Indigenous peoples progressed through strategic phases of confrontation, carceration and assimilation. As in the Sri Lankan case, these harms included social, cultural, economic and political injustices that occurred under a liberal democracy and its institutions. Like the Argentinean case, we can also see how Indigenous justice advocates reframe the harms of the past to show how injustice continues in new forms of dispossession and human rights abuses.

Another systemic harm that was raised in the Australian case was how settler- colonialism imposed a market economy on Aboriginal people. For example, advocate Wadjularbinna Nulyarimma wrote in a letter to then Prime Minister John Howard:

Our system is a collective system different from the so-called democracy. From my perspective this country is heading towards complete chaos. For us to survive in the material world we need a balance between the spiritual and material, but we are having a capitalist system forced on us and we are desperate to uphold the laws of this land which ensure our survival…Justice is about recognizing our identity, our sovereign right, our dignity and allowing us to be who we are in our own land, with no-one controlling us but respecting and accepting our differences in our own land (2005).

Nulyarimma’s comments also challenge the liberal democratic model, which in her view had been forcibly imposed on indigenous society. Instead, she advocated for a collective system and stated that justice meant recognizing and respecting that different system. Interestingly, this perspective is more aligned to the resistance in the Argentinean case study against a neoliberal system and social inequality. This justice advocate’s perspective supports recent arguments that transitional justice cannot afford

128 to ignore underlying economic issues in a society that has experienced conflict (Mani 2008; Millar 2008; Muvungi 2008). Yet, transitional justice mechanisms have yet to embrace indigenous methodologies, forms of justice and practice such as language restoration, decolonization and land redistribution (Nagy 2013; An-Na’im 2013). So, again the limits of transitional justice mechanisms can restrict the kind of claims that can be made. This provides further context to the turn to the media alongside law by Aboriginal justice advocates to make their claims heard in the public sphere.

Fighting the ‘Tyranny of the Majority’ in the Courts

The Aboriginal Tent Embassy has shown their resistance through high profile protests outside Parliament House, legal cases and calls for sovereign treaties. These public claims have been a resistance to discrimination, oppression and dispossession. Anderson explained that:

We argue that sovereignty had never been ceded by any of the tribes in Australia. We’d never signed treaties, we’ve never signed documents of surrender and peace pacts as a result of a war even though war has raged through this country and many people died, white and black during those colonial days and there’s still a lot of people dying and struggle going on. The resistance has never stopped (Anderson Interview, July 23 2014).

These justice advocates identified political solutions such as rights to a homeland, sovereignty and self-determination as what justice means to them. Aboriginal Tent Embassy advocate Eleanor Gilbert said that:

It’s recognition of pre-existing and continuing sovereignty. It’s the right to freedom. We don’t like democracy. Democracy is tyranny by the majority. Sovereignty is a way of life – it’s the freedom to live your life the way you want to instead of being criminalized for being different (Gilbert Interview, July 23 2014).

Fellow Aboriginal Tent Embassy justice advocate Lara Pullin agreed and explained how seeking political responses to mass harm is founded in her everyday lived experience of settler colonialism and the discovery of her family history. She said that:

My family went through a process of assimilation and institutionalization and attempt at removal and disconnection. It’s a journey of discovery that I’m still on and reconnection. That journey of family discovery led to the political because

129 everything to do with Aboriginality and blackfellas is incredibly politicized because of the way this country was invaded. I’m trying to document it all and tell that story to people even though it’s an unfinished one. In one way it’s a remarkable story and yet it’s so common to every blackfella you meet. There was never recognition or respect (Pullin Interview, July 23 2014).

In this case, democracy is also seen as an injustice as it is the ‘tyranny of the majority’ and fails to recognize or respect rights to a homeland. It is seen as an oppressive political structure in which people are unable to live freely the way they want. Instead, these justice advocates state that sovereign treaties can enable the freedom they desire to be different. This raises the question of how the use of law can further what are highly political claims for self-determination. As Curthoys, Genovese and Reilly (2008) have argued, indigenous Australians have been highly inventive and successful at getting their claims heard, although not adequately responded to, in the courts. These legal claims have been a way to seek redress when political means have failed them (Curthoys, Genovese and Reilly 2008). However, it appears justice advocates believe that the law is equally capable of failing to provide redress.

Like the other case studies, although justice advocates appealed to domestic law, it seems they believed that their claims would be better heard and responded to in the international sphere. It is worth quoting Aboriginal Tent Embassy co-founder Michael Anderson extensively here to understand his thinking on the legal case he mounted in the Supreme Court of New South Wales in 2014. He hoped it would be a test case on sovereignty that would eventually be heard in the British Privy Council:

The reason I’m bringing it before them now is because if I’m to take it to the international community then I must exhaust all avenues within the country. And so the jurisdiction is constantly overturning everything even though my argument might be right, and looking for ways out, then it shows the partiality of the judicial system and their inability to be able to deal with justice as justice is preserved and the way it should be. So that goes to my argument that ‘hang on a minute, if you can’t deal with my law yet you make decisions that suppress my people under your law, saying you can’t deal with my law and their law takes priority because of some quirk of the imagination with somebody in England who waved their hand and said now I own all this country’. We all know the absurdity of that. But it happened. Now the problem they’ve got is they’ve dug the hole so deep they can’t climb out of it. So what I have to do now is run this so I actually bury them in their own soil they’ve created (Anderson Interview, July 23 2014).

130 In this case, Anderson is using the domestic laws to ‘exhaust all avenues’ so that it can progress to an international court. As he explained, this was because the domestic law was not recognizing Indigenous law yet it was also applying colonial law on Indigenous people. This suggests the law is unable to be impartial to Indigenous justice claims, which exposes the ‘absurdity’ of the legal system. Anthony has also highlighted how judicial recognition of Indigenous law and society flows between tolerance and exclusion (2002). In this case, it appears the court is seen to be willing to tolerate hearing claims made under Indigenous law only to exclude them based on an inability to make a judgment on this law. This suggests justice advocates also appeal to the media and international legal systems to publicize these ‘absurd’ limits of domestic law.

Other Aboriginal Tent Embassy justice advocates shared this view of an unjust legal system that treats indigenous society and law differently. Gilbert explained that the law is limited in pursuing justice because ‘it’s up to the judge so that’s why we lose all the time. And if we win they change the law on us’ (Gilbert Interview, July 23 2014). Here, we can see how this advocate also perceives the rule of law to be partial and can shift to suit the interests of the state. Fellow advocate Lara Pullin added that a legal judgment was not justice to her because settler colonial societies failed to recognize Aboriginal law. She said, ‘it’s subverted into the white legal system as to how they should treat us within their system. It’s not treated as an equal and as an alternative’ (Pullin Interview, July 23 2014). This view of law being limited because it is not pluralistic and does not allow for Indigenous law is particular to the Australian case. Even when Aboriginal law is applied, Gilbert and Pullin described how it was subverted with the effect that more indigenous people were incarcerated. They gave the example of how circle sentencing, an official reform initiative in which community members sit in a circle to discuss the offence and decide on a punishment that is suitable for the offender, can work to disadvantage Aborigines. Gilbert claimed that ‘you only have circle sentencing if you plead guilty – that’s why the crime rates are so high because everyone’s pleading guilty’ (Gilbert Interview, July 23 2014). Pullin added that ‘blackfellas call the Aboriginal Legal Service the Aboriginal Lock-Up Service because their lawyers are all telling them to plead guilty to get them into a diversionary program’ (Pullin Interview, July 23 2014). From this perspective, the domestic legal system, despite efforts at reform, is seen as effectively contributing to social inequalities such as high crime statistics and imprisonment in the indigenous communities (Cunneen 2002).

131 Using Media Alongside Law to Protest Against Injustice

It appears that, given these perceived failings of law to recognize indigenous legal systems and claims, these justice advocates also turn to the media. For Aboriginal Tent Embassy advocate Ellie Gilbert, the law and the media were ‘both sides of the same coin’ in bringing attention to justice claims:

We run on this thing that [former chief justice of the High Court] Sir Gerard Brennan said – if you’ve got a protest take it to the courts because what it does is automatically gives you the media. That’s how you get media regardless – you don’t need to be extreme and in the end they have to report it. They’re both sides of the same coin. [Former chief magistrate of the Australian Capital Territory] Charles Kilduff said you’ve got to run a media campaign at the same time (Gilbert Interview, July 23 2014).

This suggests that even some of those working within the legal system are aware of the limits of the law to deal with political protests. What we can also see here is an attitude that by bringing justice claims into the legal forum, it ‘automatically’ enters the media forum. Furthermore, this approach is not seen to require ‘extreme’ measures such as public protests to make justice claims known. Rather, the perception is that the media ‘have to report it’ or, in other words, include it in their news agenda because it is a justice claim made in an official forum such as the courts. Again, this perspective suggests that there is a dynamic interplay between official acknowledgment of claims in the courts and unofficial acknowledgment in the wider public sphere in the media.

Gilbert elaborated that in using the law and the media as ‘both sides of the same coin’ it can put pressure on the state to implement political and social change that can be enforced. She said:

The courts and the media won’t do it. The only thing that will do it is proving they don’t have legitimate sovereignty. We know they know and we have to force them to the negotiating table and these declarations of independence are what do it. Compensation and pay the rent sounds good but there’s no vehicle. There’s no instrument to make them pay the rent – it’s just a purely voluntary thing so it’s never going to work. So in the end you have to have sovereign treaties (Gilbert Interview, July 23 2014).

So, what we see here is how justice advocates can consider both the law and media too limited to achieve political and social change. Rather, both have the potential to be used

132 together to try and ‘force’ states to the negotiating table to get a binding political solution such as a treaty. This echoes Sri Lankan advocate Tasha Manoranjan’s comments earlier that a legal judgment alone cannot actualize a political solution that ‘respects the rights of people on the ground’ (Manoranjan Interview, October 22 2013). But Gilbert perceived that law used in conjunction with the media can bring about a political solution. This is because if used together, it can ‘force’ the justice claims into the political arena. Indeed, the opposing counsel on the Aboriginal Tent Embassy case of genocide, Russell Bayliss, also recognized the limits of law in addressing these justice claims when he said ‘while I have great sympathy for the cause put forward [by the applicants], it really is a matter for the political arena, and not this court’ (Ludlow 1998: 4). It appears that justice advocates engage with the law and media to publicize these justice claims to garner support and put pressure on the state to respond in the political arena.

The Australian case study has shown how justice advocates believe colonialism can have far-reaching harmful effects even under a liberal democracy. It also finds that these justice advocates use the media alongside law to resist the nationalist narrative of reconciliation and make claims for sovereignty, self-determination and treaties. This case study also showed how domestic law was viewed as particularly inadequate for recognizing and dealing with indigenous law. Despite an awareness that domestic law is too limited to have these claims responded to, advocates believe they need to ‘exhaust all avenues’ before they can make these justice claims in the international public sphere. Therefore, it appears that justice advocates use the media while continuing to make legal claims to demonstrate this disjuncture between settler-colonial and Indigenous law and the importance of negotiating the question of sovereignty. Finally, this case study shows how Australian justice advocates used the media and law together to make a political protest.

5.4 Conclusion

This chapter has examined how justice advocates view the role of legal mechanisms and the media in pursuing justice for political, social, economic and cultural justice claims. It has shown how in all three case studies justice advocates believe that state harm does not end at a ‘rupture point’ when the country transitions to a liberal

133 democracy. In Sri Lanka and Australia, the state crimes were seen to have started with colonization and continued under a liberal democracy. The Sri Lankan case differs in that it was a highly militarized liberal democracy suffering a 30-year civil war. Sri Lankan justice advocates highlighted how this caused not just physical harm, but also racial discrimination that threatened loss of culture, identity and language. In the case of Australia, the violent conflict in the early period of colonization has been seen to shift into more implicit racial discrimination and structural harms perpetrated by settler- colonialism. Aboriginal justice advocates also experienced a loss of culture, identity, language and law. In both cases justice advocates have challenged the existing model of a liberal democracy. In the Argentinean case, there has also been resistance to the form of liberal democracy that has resulted from transitional justice. Justice advocates in this case viewed the state harms such as police violence and social inequality as ongoing under democratic rule due to the neoliberal economic policies that successive governments have imposed. This has resulted in these justice advocates making claims for social equality and a participatory democracy that respects human rights.

This chapter has found that justice advocates in these three case studies who use media alongside law want a political and social transformation. For Sri Lankan and Aboriginal justice advocates, this change means self-determination in which they can live free from oppression in their own homeland. For Argentinean justice advocates it means a more participatory form of democracy in which public opinion drives the political process, which ensures human rights are respected and there is social equality. In all three case studies, justice advocates found reconciliation to be a meaningless concept that is a state-driven process with the aim of avoiding justice and forgetting the past. This section has confirmed the perceived need for transitional justice projects to be expanded beyond particular forms of violence and narrow timeframes (Nagy 2008). It has also identified a need to keep examining and considering the social and political structures of a post-conflict nation beyond the model of a liberal democracy.

Moreover, for some justice advocates international law is seen as vital to ensuring social and political transformation because domestic legal processes are too limited. In particular, justice advocates believe domestic legal systems are unjust, serve elites and even perpetrate state crimes. However, justice advocates also described how they must pursue justice through domestic courts first before their legal case can proceed to

134 international jurisdictions. In Argentina, there were trials of military officers until the government introduced amnesty laws in the early 1980s. It was then that families and non-government organizations turned to international jurisdictions such as the Inter- American Court and Spain. In Sri Lanka there were also inquiries and trials of low- ranking military officers but a UN report recommended an international investigation of war crimes due to flawed local legal processes. The Tamil diaspora turned to third- country jurisdictions such as England, the US and Australia to prosecute their cases. The Aboriginal Tent Embassy had its case heard in Australia, which produced the significant result of having genocide named in law. However, as Balint (2014) has noted, this failed to produce a ‘foundational moment’ for society’s restoration and reconstruction. Again, these Aboriginal justice advocates stated they would take this case to the international courts. Thus, in all cases it appears that the limits of domestic law prompted an appeal to the international public sphere. Thus, I argue that some justice advocates may engage with the media alongside law as a strategy to put pressure on the international sphere to respond to justice claims. It appears justice advocates believe that using the media and law together has the capacity to put pressure on states to negotiate a political solution. The next chapter turns to expand on these findings to examine in greater detail why justice advocates use the media and what functions they believe it should perform in the pursuit of justice.

135 Chapter 6: The Functions of the Media in Transitional Justice

The findings in Chapters 4 and 5 show how these advocates perceive justice to mean having the truth told, judicial accountability, protection against future harm, indigenous rights, economic equality, rights to a homeland and sovereignty. These beliefs were influenced by the nature of the conflict, their personal experiences, attitudes and values. Those chapters also identified the key legal barriers justice advocates face when trying to pursue these various forms of justice. These include a lack of political will to prosecute, the restrictive rules about giving testimony, the inability to recognize indigenous legal systems and the limits of law to facilitate transformative political and social change. Although those findings establish that justice advocates believe the law is a critical mechanism in transitional justice, legal processes are also perceived as limited in facilitating having the truth told, holding perpetrators to account or political and social change. In light of these findings, this chapter examines in more depth why justice advocates appeal to the media alongside law in transitional justice. Before undertaking a more nuanced analysis of the limitations of the media in Chapter 7, here I delve deeper into what functions the media can or are expected to perform in the pursuit of justice.

There is an increasing recognition that the media can at times exercise parallel functions of justice (Greer and McLaughlin 2012; Machado and Santos 2009). This chapter considers how justice advocates view the functions of the media when the kind of justice they seek appears to be beyond the capacity of current transitional justice processes. It finds there are eight themes of the media’s functions: expose crimes; name crimes; name and shame perpetrators; create a public record; and be a parallel and intersecting justice process. Furthermore, the chapter finds that some justice advocates believe that once the media draws attention to state crimes it also has the capacity to influence public opinion and mobilize action. In doing so, it shows how the media is used as a tool alongside law to apply pressure on legal and political institutions to respond to human rights violations.

136 6.1 Exposing Crimes: Lifting the Veil of Secrecy

Exposing state crimes was put forward as a key role of the media by justice advocates. Sri Lankan journalist Bashana Abeywardane considered this role to be crucial in the immediate aftermath of the conflict given that the media and non-government organizations were restricted from going into the conflict zone. The organization Abeywardane co-founded, Journalists for Democracy in Sri Lanka, was able to release and publish the first evidence of war crimes. According to Abeywardane, this was because the evidence came from local journalists so it was seen as legitimate and gained widespread coverage in Western news outlets:

That triggered the whole international outcry about what happened during the final phase of the war because until that moment it was revolving around the issue of post-war resettlement of the people who had been interned. But the first evidence we brought out sent the whole discussion back to the wartime and to look deeper into the final phase of the war and what atrocities that were committed. Since then we have been working to bring more evidence and expose more crimes that have been committed in Sri Lanka. The media has a role to expose the atrocities that were not known (Abeywardane Interview, October 9 2013).

What this demonstrates is how the media can help set the agenda on what post-conflict issues the international community should be responding to. In this case the focus shifted from internally displaced people to investigating war crimes. Thus, the media played a role in transforming the full nature of the atrocities from unknown to known. This was considered particularly important given the worldwide ignorance of the final stages of a conflict that was known as the war without witnesses (Amnesty International 2009).

Another advocate discussed how the media had to expose the crimes because international bodies had failed in their job to protect citizens from harm. Tamils Against Genocide and Tamilnet co-founder Muthuthamby Sreetharan said this was the case when the United Nations did not intervene during the Sri Lankan massacre and the resulting atrocities were exposed in British television’s Channel Four documentaries:

If the UN had been an unbiased observer of the events and the voice of the voiceless then they could have easily exposed what was going on. The Tamilnet has a lot of articles about the UN officials who deliberately tried to misrepresent and hide information going out. They were not interested in stopping this carnage.

137 So if the institutions that were meant to protect people’s lives had acted courageously and taken action then we don’t need Channel Four spearheading the truth-telling (Sreetharan Interview, October 15 2013).

Here, the media is seen to be an alternative institution in exposing crimes when international legal or political organizations fail. In this case, it is claimed that the UN actively worked against exposing the crimes. From this perspective, it is the media that can then become the ‘voice of the voiceless’ and ‘spearhead the truth-telling’. What this suggests is that justice advocates appeal to the media to play a role in exposing crimes and truth-telling when official transitional justice processes are limited and fail to do so.

Despite the media’s potential to play a significant role in exposing crimes, justice advocates emphasized that legal processes were still necessary to act on these revelations. They discussed how the exposure of crimes formed the basis for claims to be taken up in the legal system. Abeywardane said that the media created ‘grounds for the victims to put forward their demands. The media can create the grounds for the people who did not know what was going on so they can come to terms with what really happened’ (Abeywardane Interview, October 9 2013). Others agreed that the media laid the groundwork for legal action. As former diplomat to Sri Lanka Bruce Haigh explained: ‘the story comes out then the instruments of the law get involved. The media lifts the veil of secrecy’ (Haigh Interview, July 12 2014). However, it appears that if the law does not get involved, then the exposure of these crimes is seen as meaningless. Abeywardane described how the media ‘created a platform for the legal experts to look into the whole issue again and to deal with it seriously instead of just words without substance’ (Abeywardane Interview, October 9 2013).

Similarly, Argentinean justice advocate Juan Mendez discussed how the media played a role in ensuring official truth-telling is successful through its exposure of atrocities. He said, ‘quite frankly in many countries I know of the truth-telling in the sense of an official legal truth could not have been achieved but for the many instances of journalistic entrepreneurship that discovered this case or that case’ (Mendez Interview, October 23 2013). However, Mendez thinks while the media can play a supporting role, it cannot facilitate truth-telling on its own:

138 Obviously, journalism and the media can play a big role because a truth commission will follow threads and traces of evidence that are discovered and shown by the media but it’s not possible in my mind that in the wake of mass atrocities to just say, ‘well now we are going to have an independent media and let entrepreneurial journalists discover what needs to be discovered (Mendez Interview, October 23 2013).

Lawyer Ali Beydoun sees the media and law as similar in the adversarial nature of truth-telling. However, unlike the law, he expressed how the media has no central judge to give official acknowledgment of the truth. Beydoun described his views as such:

I think of a courtroom as a place where two truths are told and a jury and a judge must decide which is the truth we all agree on. And that happens in the media. It feels like court when I see a movie like The Lies We All Agreed To [Sri Lankan government propaganda film] and I have to wait for that party to sit down so I can stand up and address the arguments made by them. And I suddenly begin to see the media as having two sides, just like the court does, just like an adversarial system would. And what I’m really hoping for sometimes is that central position I can learn from. Lawyers get lost in the adversarial system and you want your side to be vindicated more than the other side (Beydoun Interview, October 17 2013).

So again the media is seen as limited in playing a role in truth-telling as it is unable to judge what is the truth and there is no one to ‘vindicate’ or acknowledge one story. Therefore, it appears that, in some cases, without the media’s exposure of this harm, there is less chance that legal authorities know about the crimes and can act to hold those responsible to account. However, these views suggest it is not considered justice for the media to expose crimes without subsequent legal action.

Sri Lankan advocate Jan Jananayagam also described how the media could play a role during the legal process. For example, she explained how the British courts have accepted media reports as secondary evidence in legal cases that try and stop Sri Lankan asylum seekers being sent back from the United Kingdom:

The media is very useful because of all the evidence-gathering: once they’ve put out an investigative report we can use it as secondary sources. [Tamils Against Genocide] has used media as experts and they have been accepted by the courts. Callum McRae [who directed the documentary No Fire Zone that detailed war crimes] was a witness for us in country guidance. They can explain their methodology behind the reports so that gives them more weight. There is a role in opening up the evidence spaces (Jananayagam Interview, October 5 2013).

139 This demonstrates how the relationship between the media and law can be seen as intersecting and inter-dependent in a formal legal process. In this case, the media has to work within legal procedures to provide evidence of crimes. This finding supports the analysis of Joyce (2010) who has shown in his study of photojournalism and international justice, that media agents are aware of this evidentiary role and may even regard this higher than traditional news values. Thus, the media’s role can be transformed from an unofficial exposure of crime to legally recognized and officially acknowledged witness testimony.

Some justice advocates also discussed how the media could expose crimes to the public through the process of reporting on court processes. Jananayagam said of the media:

We need them to amplify the value of the judgment. The whole court process becomes interesting because the media is there to publicize the outcome – the recognition and the truth told. It needs to be amplified to make it significant rather than just a little piece of paper sitting in the corner. The judgment is the nuts and bolts of it but they create the space in which it all works (Jananayagam Interview, October 5 2013).

Thus, the media is seen as valuable in ensuring that the outcome of legal procedures is publicized to a wider audience than those present in the courtroom. For some justice advocates then, the ‘recognition’ and ‘truth’ of their claims only becomes significant outside the confines of the legal system.

Similarly, some justice advocates expressed how the media was important for exposing crimes that were revealed during official truth-telling processes. Haigh gives the example of how the media presented all sides of the argument and facts during the South African Truth and Reconciliation Commission (Haigh Interview, July 12 2014). Mendez also highlighted how the media was necessary to ensure truth commissions were critiqued on their effectiveness:

Even if you have a truth commission you need freedom of expression because you need to be able to have journalists, to not only discover the threads that need to be followed, but to critique the performance of these institutions that are sometimes created with good intentions but they are not really all that effective so I think the media plays a role even if it shouldn’t be the only role. But it has a very supporting role and the more successful truth commissions have been in the limelight through

140 the media both for good and bad, to criticize them but also to highlight what they were achieving (Mendez Interview, October 23 2013).

This comment shows how the media’s role in truth-telling can be seen to go beyond exposing crimes through objective reporting of the events and facts of a legal process. From this perspective the media can be conceived as an accountability mechanism that acts to ensure the truth-telling commission is performing its functions effectively in exposing crimes. Thus, Mendez sees the media’s function as ensuring the transparency and legitimacy of the proceedings.

Mendez also acknowledged the media’s role in satisfying the public interest in legal processes. Despite this interest, Mendez has observed the media reporting responsibly on these processes:

There’s always the temptation to sensationalize them but I haven’t seen that as much of a problem in the countries I have followed at least. I think the press has been attentive but also respectful and has done a very good job of showing the momentous nature of these processes and the historic turn of events that seem to predict a whole new way of society seeing itself and the people in the country relating to each other from the future. I think without good coverage in the media that would not have been as well understood as it is (Mendez Interview, October 23 2013).

Importantly, what is evident in these comments is the role the media can play in ‘amplifying’ the ‘foundational moment’ of transition these legal processes are expected to support (Balint 2012). In Mendez’s mind, without the media, the greater public cannot reckon with the past and grasp how society might function going forward. From this perspective the media plays a supporting role in communicating the proceedings to a wider audience beyond those who are able to attend truth-telling commissions and trials. This perspective supports Laplante and Phenicie’s (2010) contention that the media plays a crucial role in truth commissions, particularly in terms of building consensus on a collective memory that will not lead to further conflict. Or as Mendez put it, the media plays a significant role in communicating ‘a whole new way of society seeing itself and the people in the country relating to each other from the future’ (Mendez Interview, October 23 2013). In this way, the media becomes a key institution in how a post-conflict country imagines its future.

141 6.2 Naming Crimes: A Space for Victims to Bear Witness

Many of the justice advocates who saw atrocities used the media to express what they had witnessed. For example, Sri Lankan justice advocate Meena Krishnamurthy gave evidence to the International Commission of Jurists, which handed a report to the police for investigation. In a media interview she said ‘Look…I, with my own eyes, saw a hospital being shelled…I really want Australians to understand that I saw a massacre of people’ (Dingle 2011). Krishnamurthy explained that ‘The reason I decided to tell my story was because I’ve always believed in justice’ (Dingle 2011). She also expressed how she was telling her story to help those who died:

You watched the wounded lying at the wheels of vehicles seeking cover from the bullets and shells. They reached their hands out, skeletons of hope, asking for a soul to save them. But you had to save yourself so you walked past them turning away with guilt. You could not help them, but you can help them now that’s why I’m doing this. The truth can no longer be hidden from the world as memories will be shared (Reuters 2011).

Fellow Sri Lankan justice advocate Jegan Waran echoed this expression of needing to describe what he had seen during media interviews he participated in:

‘Patients were killed and patients who were in the hospital were killed and there were patients waiting for treatment – they were killed. There was a medical store where they kept the medicines. Those were destroyed – scattered all over the place you can see. Ambulances were destroyed. So I have seen that personally (Fitzsimmons 2011).

These comments also highlight the emphasis that justice advocates place on having ‘seen that personally’ or having witnessed harm ‘with my own eyes’. As Waran described it:

I am living testimony to what happened…I saw Sri Lankan planes directing bombs into towns and open areas where displaced people were congregated, including areas designated as no-fire zones. I saw many hundreds of civilians killed and injured by these attacks (Reuters 2011).

In relating what they had seen these justice advocates are, arguably, giving testimony in the media. Despite both justice advocates having given their witness accounts in legal affidavits they also felt compelled to repeat this in the media. It appears that it is

142 important for victims to relate what they have witnessed beyond the confines of legal processes. In witnessing through the media, Krishnamurty felt she was able to help those victims in a way that Felman explained as taking responsibility for the truth of an occurrence (2000: 103-104). This supports the idea of media witnessing theory, which describes witnesses in the media, witnessing by the media and witnessing through the media (Frosh and Pinchevski 2006). Thus, in wanting all Australians to know what she had seen it was possible that Krishnamurty also wanted the media audience to accept this burden of responsibility too.

Using the media as an alternative site to give testimony was also evident in the Argentinean case study. One mother Ilda Irrustita de Miucci described how she went to the Buenos Aires Herald newspaper with a group of women she had just met to try and find answers about her child:

At the Buenos Aires Herald, [editor Robert] Cox’s secretary received us because Cox was not there at the moment; nevertheless, each of the women told her story, gave her testimony (quoted in Mellibovsky 1998: 183).

This case differs slightly in that the conflict was ongoing so the purpose of giving testimony was to try and find the disappeared rather than holding those responsible to account. However, it appears it was nevertheless still important for the Argentinean victims to have a space where they could tell their story yet there was no legal avenue available to them for their testimony to be publicly heard. It seems this is when justice advocates are most likely to appeal to the media to bear witness and give testimony.

Justice advocates described the media as a site where victims could be recognized, tell their story, bear witness and give testimony. Abeywardane said ‘it can provide a space for victims to bring out their stories and their version of events to justify their demands’ (Abeywardane Interview, October 9 2013). In another example, Mendez said the media ‘highlighted the human face of the victims’ (Mendez Interview, October 23 2013). Manoranjan expressed how the media provided a forum for justice for victims:

Victims can air their grievances and feel like they have a voice and gaining recognition for what happened. I think that’s very important. I think the credibility and the legitimacy of providing victims with that space can be a form of justice in and of itself. I think we definitely should engage with the media to

143 get the justice we seek. And I think the best example of that having worked in Sri Lanka with the Channel Four videos the Killing Fields. Because so many people saw the videos and were touched by the films because it was finally recognition of the situation in 2009 and what’s happening now. So it was providing some form of redress and accountability through the space of the media (Manoranjan Interview, October 22 2013).

This comment suggests that the media has the potential to play a significant role in its capacity to provide a forum for victims that at times transitional justice processes cannot. Mendez said that although he prefers the law as an instrument of justice, he thinks the media plays a large role in providing this forum for victims as ‘giving testimony and bearing witness are not necessarily understood in the sense of the criminal justice system’ (Mendez Interview, October 23 2013). These perspectives add weight to the scholarly literature that argues trials are limited in giving victims the space to tell their story in their own way (Mertus 2000; Henry 2011; Bryson 2016). More importantly, it reveals how bearing witness in the media seems to hold the potential to provide victims with a sense of being heard that law cannot. From this perspective, the media can function to give a space to give testimony and bear witness to victims when they cannot access the law. Therefore, it appears when there is no legal avenue available for victims to have their testimony publicly heard this is when they are most likely to appeal to the media. However, the media is also used when justice advocates also give legal testimony, which suggests that they are seeking a public forum in which their claims can be heard more widely. It seems that when justice advocates bear witness in the media they want to tell the public and have this transformed into action.

6.3 Naming and Shaming Perpetrators

An important aspect of engaging the media alongside legal cases for some justice advocates is naming and shaming a perpetrator. The question of whether to name individuals for human rights abuses has been a highly controversial question during the establishment and practice of truth commissions (Hayner 2010). On the one hand, there is a need for total transparency and disclosure, yet there is also the risk of violating due process, compromising the safety of victims and witnesses or inciting vigilante attacks against the accused (Hayner 2010). Mertus (2001) has also warned about the destabilising impact that blaming perpetrators can have on local communities and politics. However, not all justice advocates agree that naming and shaming a

144 perpetrator is an important function of the media or acts as deterrence. Sri Lankan advocate Sam Pari gave the example that perpetrators of genocide are unlikely to be as influenced by naming and shaming as perhaps a boss who would be embarrassed if he was exposed for sexually harassing an employee. She said those who committed state crimes do not care about ‘whether people talk about them or not’. Pari said:

These are perpetrators on a large scale and they are heads of state so while the media might bring out awareness about them, [Australian foreign affairs commentator] Greg Sheridan writes a piece about how wonderful Sri Lanka is and how Rajapaksa is a wonderful leader and how under his leadership the country is prospering. So, that alone for me is not justice. Because naming and shaming means Rajapaksa can still sleep well at night and he hasn’t lost his father or his mother or watched his child die (Pari Interview, November 11 2013).

However, Jegan said the media could play a significant role in naming a perpetrator and to expose what crimes they had committed:

There’s an amazing quote by [war correspondent] Robert Fisk that every journalist should follow and it’s something like ‘in a situation of warfare as a journalist you have a right to be angry and you have the right to name perpetrators’. And that is the only type of journalism that I think is an acceptable form of journalism. And to not let the world forget what that person is responsible for is very important for the media to do (Jegan Interview, July 26 2014).

Another advocate Ali Beydoun agreed that naming and shaming was an important function of the media and could create a language of criminality and an extra-legal punishment that was not possible if a legal claim did not go to trial. It is worth quoting Beydoun in full to reveal his understanding of how the media can function in terms of naming and shaming:

For example, in our lawsuit against [former Sri Lankan] General [Shavendra] Silva the BBC started calling him the alleged war criminal. And it really was able to capture the idea we were trying to present in court. It was very fair because they used the word alleged but in some ways it worked to our advantage because most people wouldn’t read the entire complaint we filed in court because it’s in legalese and it’s inaccessible to them but we were trying to bring to the attention of the court allegations of war crimes committed by a war criminal. And the media helped us send that message to many people…and some of the effects that I saw was that General Silva was removed from the advisory council to the Secretary-General. They had nominated him to be on the senior advisory council but after our case and after a lot of the media buzz around it, in addition to the Channel Four documentary, suddenly he was removed from that council.

145 Everywhere you looked suddenly General Silva was being considered as being someone who may have committed a war crime even though a US court said they had no opinion as to that. In that sense the justice I was looking for in a court room – the legal judgment, the no impunity, no immunity, no amnesty, jailing General Silva, the hope a prosecutor would pick this up and look into it or the hope the Department of Homeland Security would reject him from this country because he’s a human rights persecutor - none of those things happened. But now General Silva walks around with a scarlet ‘W’ as people now look at him, remember what the media said and were able to come to their own opinions about what conduct should be accredited to him (Beydoun Interview, October 17 2013).

So, some justice advocates perceive the media as a powerful tool, particularly when legal options are limited. However, others believe naming a perpetrator in the media has little impact on the accused and does not equal justice to those who have lost loved ones. In Beydoun’s comments we can see how law is constrained in communicating allegations of war crimes to the public because of access to legal documents and the difficulty of translating legal language. In this case, the courts were also limited in providing a legal judgment, no impunity and jail. However, through the media General Silva was named as a war criminal, the facts of the case were heard by the public, there was a judgment of guilt that resulted in the punishment of being removed from a UN post. As the picture shows below, The New York Post, which is the seventh most widely circulated newspaper in the United States, named General Silva a ‘war criminal’ and a ‘diplomaniac’ in the caption. The introduction of this article reads: ‘a suspected war criminal who allegedly played a key role in the slaughter of 40,000 civilians in Sri Lanka has landed a cushy job at the United Nations — with full diplomatic immunity’ (New York Post 2010). Thus, we can see an inferred negative judgment in the media’s juxtaposition of a suspect who has killed thousands of people against ‘a cushy job’ and full diplomatic immunity.

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Hess and Waller (2014) note that in modern times the media has taken over the power from law to shame. Some scholars argue that shaming is a powerful tool for protecting human rights (Keck and Sikkink 1998; Risse, Ropp, and Sikkink 1999) and indirectly affect government behavior by influencing public opinion (Ausderan 2014: 93). Krain’s (2012: 586) analysis suggests that naming and shaming by advocates, the media and international organizations ‘have significant ameliorative effects on the severity of the most extreme atrocities’. Yet others suggest that naming and shaming has either little impact or a negative impact on human rights (Bob 2005; Hafner-Burton 2008) and the media has no impact on government killing of civilians (DeMerritt 2012: 617). Thus, it appears that the scholarly literature reflects the mixed views of justice advocates about the media’s role in naming and shaming perpetrators.

147 6.4 Creating a Public Record

Justice advocates discussed how the media played a role in putting human rights violations on the public record. As discussed earlier, a public record of state harm is considered important for a society coming to terms with mass atrocities (Balint 2012; Mertus 2000; Cole 2007). However, as shown above, the law can be limited in creating a public record if legal cases are never brought to trial. Radio journalist David Freudberg (2003: 335) has said that ‘in building the historical record of war conduct particularly at a time when militarism so often means war against civilians, our media bear a special responsibility to assemble that record. Warrior governments, with rare exception, cannot be expected to volunteer the details of atrocities committed. So, it requires painstaking inquiry by others’. It seems that justice advocates agreed with this notion and described how the media could be useful in creating this public record during the conflict and in its aftermath.

When journalist J.S Tissainayagam was detained in March 2008 on terrorism charges he filed a fundamental rights petition in the Supreme Court, which he used as an immediate measure to protect himself from disappearance and torture. However, he also appealed to the media because he and his wife ‘wanted justice but knew we were not going to get it’ (Tissainayagam Interview, October 21 2013). He explained:

It was absolutely necessary to have timely highlighting of any missing person in order to mitigate chances of disappearance. It was only in the days after that we decided that the media needed to be engaged because I realized that in police custody you are nothing and the police can do anything to you unless people know you are inside and the police know there is some scrutiny. When one visits a police station and does not return home it is important then there is a record somewhere that I am at that police station. The media was an unofficial way to record it and the Supreme Court was the official way to have a record that I was there (Tissainayagam Interview, October 21 2013).

In this case then we see a justice advocate appealing to the law to create an official record of his detention and state harm while also appealing to the media in order to make an unofficial record.

When asked why he engaged with the media, Aboriginal Tent Embassy justice advocate Robbie Thorpe answered:

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It’s to try and create a record. There’s been fair notice about these issues. Every day we talk about it. The court cases were for the purpose of putting it on the record. We want to serve notice on all the G20 countries via their embassies saying there’s issues here. It’s not open for business, it’s unfinished business. You don’t want to be buying into the proceeds of crime do you? (Thorpe Interview, August 11 2014)

Again we see how advocates use the law to create an official record, however, there is also the desire to make an unofficial record of it in the media. This may occur when the law is compromised under a repressive regime, such as in Sri Lanka or Argentina. It can also be the case in a liberal democracy such as Australia when there has been a failure of accountability. Or in Thorpe’s words when there is ‘unfinished business’. This suggests that the media is not just a parallel justice process in this case but a forum that intersects and is inter-dependent with law. Another advocate Eleanor Gilbert referred in the previous chapter to how law and the media are two sides of the same coin when being used to pursue justice and this concept seems particularly applicable when analysing the role of both the media and the law in creating a public record of harm.

6.5 Creating an Alternate Public Forum for Deliberation

Justice advocates advocates described how they appeal to the media to try and publicize the facts of their legal case when access to the legal system is limited, and thus, attempt to create a forum outside of law. Lawyer and advocate Ali Beydoun described how the media could play a role alongside litigation when technical rules and procedures obstruct a case going to trial. While he acknowledged that the rules were important because they guaranteed the due process of law, he also said he believed the courts could be stifled by policy considerations that prevent justice, such as diplomatic immunity. Beydoun said he was frustrated that this meant the executive branch took jurisdiction over the court, which had no power to review such policies:

And when that happens, you can get kicked out of court very quickly and unless you have the media shining a light on it or bringing it to the people the case is over and no one ever really knew what happened and there is no way forward. It’s that proverbial tree that falls in the woods and no one is there to hear it. It really doesn’t make a sound (Beydoun Interview, October 17 2013).

149 From this perspective, justice advocates appear to use the media to bring the justice claims to the public as limited access to the legal system means the case will never be heard. Sri Lankan advocate Tasha Manoranjan voiced similar views that the media could be useful when it was unlikely that a case would get to trial and the facts would never be heard in a legal forum:

I think you know at the outset that the chances are very slim and you might not get to discovery and get to the actual facts of the case. And so I think that’s why it’s important for the media to play a role because you don’t know how many steps you’re going to be able to take and you want the attention on the issue (Manoranjan Interview, October 22 2013).

What these comments demonstrate is that if a state crime is unlikely to be heard by law then justice advocates will appeal to the media so that the public can ‘hear’ the actual facts of the case. In this way, the media plays a role in creating a public forum of deliberation where the crimes and perpetrators can be named.

Justice advocates also described how evidence that could not be used in court could be presented in the media. Beydoun gave the example of evidence about Sri Lankan war crimes that were not eyewitness accounts but video footage and photographs taken by soldiers as trophy movies. He said:

We were able to obtain a lot of that information and send it out to the media where the media relayed the pictures. And in that sense, when the Sri Lanka government responded by saying much of that footage had been altered, or much of that footage was not authentic I think the media were on top of having people decide for themselves. They would show the video, report the Sri Lankan government had claimed it was fake, report the people who submitted the images claim it was real and let the people decide for themselves. Because no court was ever going to decide that (Beydoun Interview, October 17 2013).

Here we see how the law’s rules of evidence restricted what could be shown in the courts. However, the media is not subject to these limitations and, in effect, can present both sides of the case to let the public make a judgment. Thus, we see how the media provided a public forum for revealing evidence when the law was restricted.

Beydoun discussed explicitly how, by naming a perpetrator, revealing evidence and letting the audience judge, the media could play a role in creating a public courtroom:

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In that sense, the media created a courtroom, if you will – because I’m a lawyer I tend to see the world as judges, lawyers, advocates. But I think the media created a very public courtroom where people were able to view things for themselves and give value to what people were saying about those images. The media brought us the world as a jury and that jury was able to continue processing the case and processing the evidence even though the courts had closed its doors to us. The media brought it to the people and people would review the articles and would come to their own conclusions (Beydoun Interview, October 17 2013).

Here we see how the media creates a jury from its audience who can determine the facts of the case for themselves. This seems important to justice advocates when the courts ‘close their doors’ and the claims can never be heard in a legal forum. Aboriginal Tent Embassy advocate Robbie Thorpe put it this way:

I’ve lost faith in all of it – where would you recommend I go to get relief from genocide on this planet? I’ve got the answer for that. It’s called cyber court. All the judges are online globally (Thorpe Interview, August 11 2014).

It appears that Thorpe does not view the law as capable of protecting citizens from future harm in any jurisdiction. His solution is to appeal to the global public via online media. Thorpe gave the example of the 2012 internet campaign to arrest militia leader and war criminal Joseph Kony that went viral. Thorpe asked, ‘remember that Kony campaign where they just smashed it? Okay, let’s do one on Ozland. Bang’ (Thorpe Interview, August 11 2014). Thorpe viewed online media as an alternative courtroom where the world could act as the judges. As he described it:

All our information floods through the internet to every jurisdiction on the globe and we’re asking all the judges online to give us an opinion based on the evidence in front of you. If you want to charge someone put their mug shot up on cyber court, split the screen with defense and prosecution, ask the globe to try them and ask the judges to make their decision. Then you can sit back in the comfort of your lounge room with your families and say, ‘I think he’s guilty, I’m pressing green’. That’s a global system, which is a much fairer system if you think about it (Thorpe Interview, August 11 2014).

In both cases, we see how justice advocates who can get no justice or access to the legal system believe that the media can recreate the courtroom so that perpetrators are identified, evidence is heard and the public can make a judgment. However, as Beydoun noted this media judgment can differ greatly from the legal judgment that occurs in the

151 courtroom. He gave the example of the OJ Simpson trial in the US where the former sports star was acquitted of murdering his wife. Beydoun stated that:

There were so many things that couldn’t come into that courtroom that may have swayed opinions but the legal system had to be kept within its certain realm and it come up with some conclusions and I think if you had asked most people after watching media reports they would have come up with an opposite view (Beydoun Interview, October 17 2013).

Beydoun also gave the example of the controversial 2012 trial of George Zimmerman who was acquitted of murdering a young black teen Trayvon Martin in Florida because of the ‘stand your ground’ law that authorizes people to defend themselves using lethal force. In this case, Beydoun said the media could highlight when particular laws are out of step with society’s norms and expectations. Beydoun said it captivated the whole country as the public questioned ‘are we going to get justice for what happened?’ He observed how the media highlighted the contradictions and questions about the stand your ground laws even though there was a jurisprudence that was applied in courts. Beydoun explained how this created a disconnect between the public’s expectations of law and justice and the media:

You have that contradiction where you have 12 jurors, a judge and a defendant who made a decision about using that defense and that defense being enough to acquit him but 330 million people who hear this and wonder what is going on because the media has provided them with a situation that allows them to decide outside the jury. Whereas if Zimmerman was found guilty there would have been more of a reporting of a trial and there would have been a little bit more harmony and we would have felt justice has been served. We have this situation where 13 people felt like justice had been served and 330 million feel like we have a problem (Beydoun Interview, October 17 2013).

These views suggest that the media is used as a parallel and intersecting justice process when legal cases are not able to be heard in a courtroom or are seen as limited. From this perspective, the media can create a public courtroom in which the audience judges the publicized facts of the case. In some ways, the media is seen to be capable of performing functions beyond the capacity of institutions such as communicating legally inadmissible evidence. Furthermore, the media’s creation of a forum for public deliberation alongside legal processes can sometimes result in a different judgment that is seen as more just.

152 6.6 Setting the Agenda and Mobilizing Action

Justice advocates viewed one of the media’s functions as drawing attention to state harm and putting it on the agenda. Once on the agenda, the media can be used to mobilize the public to take action in support of the legal claims such as protests and petitions. One justice advocate believed the media was more important than the law in drawing attention to war crimes and protecting victims from future harm. Manoranjan said this was because it could spark a political intervention that could enforce the law:

I think Sri Lanka just doesn’t receive the attention that other conflicts, like Syria for example, receive and so you see a lot more political traction and will to move forward and resolve the conflict in Syria because of the media. I think the absence of attention on Sri Lanka has had the opposite effect where it’s nearly impossible to generate the political will to apply the law on the books to the facts on the ground in Sri Lanka. Whereas in Syria, [US] President [Barack] Obama is eager to invoke the convention against the use of chemical weapons and the laws that all exist and theoretically apply equally everywhere but aren’t applied everywhere (Manoranjan Interview, October 22 2013).

This comparative view of Sri Lanka and Syria shows how some justice advocates perceive the conflicts that attract more media coverage are ones more likely to attract the attention of international actors that can put pressure on the state to stop perpetrating crimes. Conversely, the lack of media coverage can mean there is no political will to obey the rule of law and no international institutions holding states to account for human rights abuses.

Jananayagam also discussed how media coverage played an important role in drawing urgent attention to a conflict. She said:

They have a role in creating a sense of demand, or urgency or attention because there are so many issues or cases that are seeking justice that the media plays a role in getting a sense of doing something about it. There is a space the media impacts, whether it’s positive or negative it may be case-specific. They still create the demand (Jananayagam Interview, October 5 2013).

Media attention to state harm is thus seen to create pressure on the international community to ‘do something about it’ and enforce the law ‘on the books’. These justice advocates are also aware they need to compete for attention against many other justice issues and feel the media can be used to do this.

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Beydoun described how he used the media at his public cause litigation clinic as an advocacy tool to mobilize people and work towards a common resolution. The first goal was to educate the public but Beydoun said the media could then play a role in generating action in support of a legal cause:

Whenever we launch litigation we make sure we consider what advocacy efforts are going to be necessary to bring people in. So we educate people, that’s easy, but now we have to give them a goal – we have to say we’re going to sign this petition or we’re going to demonstrate in this place or we’re going to lobby Congress, or we’re going to raise money. Whatever it is, we bring people into this advocacy effort and here’s where the media can go from being journalism and to being more inspirational. And the media could expose an issue, which is beyond just educating someone, but it’s more about inspiring people or bringing people to a higher level of understanding about a cause (Beydoun Interview, October 17 2013).

From this perspective, the media does not just shine a spotlight on an issue and put it on the agenda. Rather, the media is seen as having the potential to bring people in to advocacy efforts by inspiring the public to help create the ‘sense of urgency’ or ‘demand’ that may lead to political intervention. This growing awareness means the public has a higher level of understanding and knowledge about human rights abuses. So here we see how ‘letting the world know what happened’ can transform into action. For example, Manoharan and Amnesty International used the media to get 50,000 signatures that he presented to the UN in support of an international inquiry into the murder of his son (Amnesty International 2013). For Manoharan, the media played a role in putting pressure on international legal bodies to consider his case:

For the first year and second year my case is in a poor situation. Now we have lots of campaigning and through the media, now the international community knows well what happened to the Trinco 5. After that the international community gave a lot more pressure to the Human Rights Council and the UN. Now everybody is thinking about it (Manoharan Interview, October 11 2013).

So, here we see how justice advocates engage with the media to get public opinion on their side in efforts to get an official response to state harms.

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6.7 Applying Pressure for Legal and Political Responses

Once the state crimes are in the spotlight, justice advocates believe the media coverage may influence the judiciary and politicians. With this awareness and knowledge, justice advocates view the media as a powerful tool that can put pressure on the judiciary system to deliver retributive justice for victims. For example, Sri Lankan advocate Sam Pari highlighted how the media played a role in tough sentencing and social change following a rape case in India. She said:

I think the media is a very, very powerful tool. I find that the media if they wish to do so can bring about a lot of social change. Like the rape case in India, the media made a big deal of that rightly so and after that there was a lot of legal proceedings and some people actually say the judgment passed was a lot harsher than some of the other rape cases before that purely because there was so much media publicity (Pari Interview, November 11 2013).

Pari explained that the media could play a role in putting pressure on the judiciary to deliver harsher sentences:

I think the media plays a huge role, in general, but especially on legal cases predominantly because judges are also human and they feel the pressure as well. So when the media is breathing down their neck and everywhere they look the newspaper has this case on their front page then I think they will be influenced as much as they will say they are neutral (Pari Interview, November 11 2013).

Jananayagam said that the media publicity could have an impact on the judiciary by giving them prior knowledge and context of the crimes. She also discussed how the media played a role in setting the agenda for the courts:

I’m sure judges deny they are impacted by the media but I think you can see in litigation that the environment they are operating in impacts the way they come to a problem. Life is just easier if the media has prepared the Crown and says this needs to be dealt with and the courts say ‘yeah we need to deal with this’. They’re not unfamiliar when they come into the judgment or come into the tribunal. I know they’re going to say they have a certain knowledge base when they come into the judgment role – and the jurors (Jananayagam Interview, October 5 2013).

155 Sreetharan was another advocate who believed that judges might be more open to justice claims if they had prior knowledge of the case and were aware that public opinion supported such claims:

Because law itself moves according to the public opinion. So even if we aren’t successful there are a few judges who could have heard a few positive things we are trying to achieve and then perhaps in the next case his opinion will be more towards keeping a moral high standard and trumping the self-interest of the executive branch (Sreetharan Interview, October 15 2013).

These views demonstrate how some justice advocates believed that although judges would consider themselves to be impartial, they could still be influenced by media coverage. Once judges have knowledge of the context or public opinion on a particular legal issue, they are considered more likely to be sympathetic in their rulings. Lawyer Simone Monasbian (2007) confirms this with her experiences on international tribunals and how trial coverage can influence judges’ behavior in the courtroom.

As discussed in Chapters 4 and 5, justice advocates also stated that the media could be used to get the attention of the international political community and apply pressure on it to respond to state crimes. Some justice advocates believed that the media could help them inform the international community and counter misinformation. For Sri Lankan advocate, Tasha Manoranjan, there are circumstances when the media can generate momentum for the international community to implement a political solution in post- conflict societies. She said:

I think there could be a media outcome that could be just as important [as the law] because I think it’s about generating a political solution that respects the rights of the Tamil community and that doesn’t require a conviction by the [International Criminal Court] or a resolution by the Security Council or something in the [Alien Torts Claims Act] in the US that Shavendra Silva committed war crimes. It doesn’t require a legal judgment to actualize a political solution that respects the rights of the people on the ground. I think the media is more able to provide that type of solution than a court is given the current situation where 90 per cent of the war criminals in Sri Lanka are protected by diplomatic immunity (Manoranjan Interview, October 22 2013).

In these comments, Manoranjan is highlighting how the effective application of law can be limited in cases where diplomatic immunity is applied. However, these comments also suggest that, even if an international court convicted former military

156 officers of state crimes, justice would not be guaranteed, as a legal judgment would not ‘actualize’ a political solution. This suggests that justice advocates believe that a legal mechanism is limited when a political response is needed to protect against future harm. Therefore, the media is appealed to as a tool to get a political response to human rights violations.

This appeal to the media for a political response was evident in Sri Lankan advocate Brami Jegan’s description of the impact that the British television station Channel Four had with its documentary exposing the conditions of camps where Tamils were being interred after the war. When asked why justice advocates turned to the media for political justice Jegan responded:

There’s no other option. When it does work it’s amazing. When Channel Four snuck into the camps and recorded the rapes and sexual violence and since then they have played such a huge role in changing perceptions. It informs the public, policy makers and politicians. It puts pressure on politicians to respond. And it shifts politicians’ minds too – I think [British Prime Minister] David Cameron watched the documentary and tweeted it. When it works it’s really important (Jegan Interview, July 26 2014).

Here, we see how justice advocates make justice claims in the media as a last resort when there’s ‘no other option’ because there is a lack of political will to respond to state crimes. During our interview Jegan had described the limitations of the media as a forum for justice, however, as she expressed here ‘when it works it’s really important’ (Jegan Interview, July 26 2014). Another Sri Lankan advocate Jan Jananayagam expressed a similar view in her comments that ‘the media could be for you or against you’ (Jananayagam Interview, October 5 2013). As she saw it, the media can be helpful before a justice claim reaches a legal forum, however, if it is heard in the courts, then Jananayagam said the media is no longer useful:

I don’t believe that in the UK courts, once you’re in the case that the outcome is impacted by what the media says about the case. It’s like once you’re in you lose the benefits of the media. It’s only useful to get the government to prosecute, for example. You can get the media to put a certain amount of pressure on to get the British government embarrassed enough to open a case which they don’t want to do for diplomatic reasons. But once you have taken a civil case it’s not very clear the media can help you (Jananayagam Interview, October 5 2013).

157 These comments suggest justice advocates feel ambivalence about the media’s capacity as a forum for justice. It suggests that the media doesn’t always participate in the pursuit of justice. This suggests that these justice advocates support the liberal view of the separation of powers between the rule of law and freedom of the press. It seems that, for some advocates, the media is only seen as a parallel and intersecting justice process before a trial. However, as both advocates stated, when it is effective the media can inform and put pressure on politicians to respond. This could be a symbolic act of support such as a tweet or it could be acting to get a case into the legal forum. Argentinean advocate Gaston Chillier also echoed these attitudes towards justice, media and the state. He said:

You can’t have justice without the justice institutions as a state response. I’m not thinking of justice as just a judgment, you can get recognition, compensation and apology from the government but it’s true that usually, it’s difficult I think, that when we talk about human rights violations, government does not give a response to the violation without any kind of pressure. The media usually helps in order to put some pressure on (Chillier Interview, October 29 2013).

Again, we see in these comments how justice advocates perceive the media as helpful in applying pressure on the state to respond to human rights abuses. It appears that one way the media is helpful at applying this pressure is publicizing the justice claims so that they become a high-profile issue. One way of doing this, as advocates explained, is through powerful images.

Aboriginal Tent Embassy advocate Eleanor Gilbert discussed how ‘if you don’t pick up guns the only weapon you’ve got is the flow of information’ and one of the best ways to attract mainstream media is through the creation of drama to make a justice claim reportable (Gilbert Interview, July 23 2014). Gilbert gave the example of when the embassy started up again in 1992 and her husband Kevin set off three emergency flares as an SOS to the world that the issue of sovereignty was an emergency:

That was huge and went around the world and in the end it forced the minister to come. And so under international law that was the declaration of sovereignty. People would see him as extreme but it was the only way to get the message out…That’s what the Embassy did. The Embassy finally in 1972 got it out to the international arena whereas up until then it was always a domestic matter. But using the international arena as pressure. We don’t really see the solution is there

158 because of the structures of the Security Council but you create pressure (Gilbert Interview, July 23 2014).

Fellow Aboriginal justice advocate Lara Pullin agreed and said that any publicity was good for justice claims. She explained how this was even the case when the 40th anniversary of the Tent Embassy occurred and there were dramatic scenes of then Prime Minister Julia Gillard being dragged away by her bodyguard in response to fears of rioting. Pullin said, ‘it was still good to get a message out to the world and the Australian population that things aren’t what they seem and it raises questions and there’s been a renewed interest in what’s going on’ (Pullin Interview, July 23 2014). In Argentina, the Mothers of the Plaza de Mayo also used dramatic imagery, such as the marches around the plaza wearing their white scarves, to draw attention to their justice claims.

Justice advocates also explained how the media could be useful to counteract what they believed was misinformation about their justice claims in the international community. Pullin said that journalist John Pilger’s film Utopia had been important for documenting continuing human rights violations and discrimination against indigenous people for a global audience. She said, ‘there’s strong solidarity and understanding in the international community of colonization. When they come here and meet us and spend time with us they see the story they get at the international relations level is not the reality we’re living here’ (Pullin Interview, July 23 2014). Similarly, Sri Lankan justice advocates appeal to the media to get international friends and explain the roots of the conflict. British Tamil Forum human rights leader Kana Nirmalan said:

We’ve been concentrating on getting friends. Even though we have a very rightful and articulated case we don’t have many friends on the international arena. So we’re lobbying about the atrocities that happened in Sri Lanka and taking that message to an international platform to make them understand. There are a couple of issues they have failed to understand because what happened after 9/11 was that every state used us as a tool to oppress our case and put our struggle in the terrorist brand. That’s one of the setbacks for us and we need to explain to the international community this was an oppression and there was a struggle since independence. We need to explain to the international community the root cause of the problems still lies there and that needs to be addressed (Interview 2013).

Ravi Kumar, from the British Tamil Forum, added that the media played an important role in transitional justice ‘because the international community, especially the Third

159 World countries, do not know what has been going on in Sri Lanka in the past 65 years. The media can enlighten the other people and open up their perspectives’ (Kumar Interview, October 11 2013). Thus, these justice advocates use the media to gain international allies to support their justice claims. Therefore, justice advocates turn to the media in efforts to make their justice claims known to the international community and in a bid to get politicians to respond. In some cases, the media is seen as having more capacity to be a democratic forum for justice than legal processes. Yet, in most cases the media appears to be perceived as a tool to put pressure on politicians. However, justice advocates also expressed the view that the media does not always ‘work’ and can be ‘for you or against you’.

6.8 The Media as a Tool for Pursuing Justice

Many of the justice advocates discussed the role of the media in terms of an institution that can be used as a tool for pursuing justice rather than a means of delivering justice. This appears to be because it is limited in providing an official response to justice claims, thereby it is incapable of performing judicial accountability processes or implementing direct political and social change. For example, Sreetharan emphasized that he has more faith in the judicial system than the media in pursuing justice, as news organizations will only cover human rights abuses if it aligns with their interests:

I tend to believe more in the legal system to produce results for us than the media unless in extreme cases where the matters of interest coincide with the international attention. If you take the Washington Post and New York Times there might be a thing about chemical weapons as if that is the only thing that kills people. Now Rajapaksa can slaughter 100,000 they don’t care. I don’t trust or believe in the media. It’s not going to bring us any justice because the editors and journalists here are not in sync with the worth of a human life. We don’t believe journalists here, with some exceptions, think Sri Lanka and 100,000 are just numbers. So the media I have less faith in than the judicial system (Sreetharan Interview, October 15 2013).

These comments demonstrate the view that the media’s capacity is too limited to ‘produce results’. Despite engaging with news organizations, this advocate does not ‘trust’ or ‘believe’ in the media. It is considered ‘not in sync with the worth of a human life’ and there is a belief it ‘is not going to bring us any justice’. Yet, there is still some hope in the ‘exceptions’ that think those who were killed in the Sri Lankan are not ‘just

160 numbers’. So, we can see that even though justice advocates engage with the media, for some it is the legal system that they have more ‘faith’ in.

Beydoun found the challenge of using the media is that it cannot do anything legal to continue the process:

They could compel to action to drive them to court to do something, support new litigation, support an appeal, or support further investigation by the federal government if there was a civil rights violation. But the media tends to be dependent upon people’s indolence. I hate to say that but people are lazy and when people start to lose interest they find another topic that people might become interested in (Beydoun Interview, October 17 2013).

Thus, the media is reliant upon the public’s interest in the case for it to choose to continue supporting a legal case. Here, the media is seen as acting in a support role to the legal system rather than being the preferred mechanism for justice. Again, this supports an important pillar of liberal democratic thought to have rule of law and free press as separate institutions that act as a check and balance on each other.

Argentinean advocate Gaston Chillier also perceived the media more as an instrument or a strategy for pursuing justice:

I don’t think the media can provide redress for victims. But I think the media can be very important in order to cover the final outcome of justice. The media is critical for all the work we are doing when we are dealing with victims and trying to get justice for them. With the victims of the dictatorship, the media was critical in order to keep the issue on the agenda. But also in the current times when it’s important to get the attention or bring some issue to the public debate that has not been taken into account. The media can be very important in order to obtain justice but it shouldn’t be seen as justice itself (Chillier Interview, October 29 2013).

Similarly, Pari views the media as a tool that can help get justice such as in the India rape case, but she does not consider justice has occurred until the perpetrators face a legal judgment and punishment:

For me, justice being served is not merely everyone knowing that something has happened. I think perpetrators should be held accountable and I think something should take place so that same crime doesn’t happen again. So while the media will play a huge role and it’s important they do, I don’t think having that story told alone is justice being served (Pari Interview, November 11 2013).

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Abeywardane agreed that it was not enough for the public to know about the state crime and that the solution had to be structural:

It’s not a matter of making people aware of what happened – that is also important, I’m not undermining it – but as long as the structural issues are not addressed it will just be journalistic sensationalizing (Abeywardane Interview, October 9 2013).

He said the ideal situation would be that the media exposed the crimes and injustices and then the law would get involved:

And then justice would come out as a joint project of the involvement of the media and the intervention of the law. And then justice would be assured, which doesn’t happen most of the time. The conceptual relationship would be interdependent because media depends on what law can do. And law depends on a certain extent on the media to bring out the gravity and the magnitude of the crimes that have been committed and the atrocities and the injustice. There is always an interdependence to bring out the justice (Interview 2013).

Jananayagam believed the media could not deliver justice without the law and said it could only be a participant in the legal process:

It is the choice for the media about whether they are a positive participant. And of course it’s a subjective question because what is positive and what is the right story. This is all part of the problem. I wouldn’t elevate the media as a giver of justice because that puts them on the same level as the courts (Jananayagam Interview, October 5 2013).

These comments show how justice advocates view the relationship between media and the legal processes of transitional justice. For some, it is an interdependent relationship while for others the media plays a supporting role or acts as a tool to help get justice. Other justice advocates perceived the media as impotent such as Clarisa Veiga from the Grandmothers of the Plaza de Mayo:

The media didn’t do anything. Anytime someone was killed they said there has been a struggle between the forces and the terrorists but in reality there have been thousands and thousands of people picked up, taken to concentration camps and killed (Veiga Interview, November 2 2013).

162 What this comment reveals is that, just as justice advocates perceive the law to be limited and yet continue to appeal to it for justice, the media is also a flawed mechanism. As Manoranjan noted:

It’s interesting because we do still keep going to the same fora that failed us in the past and I do think absolutely the media failed and still fails the Tamil victims. But I feel the alternative to continuing to work within these institutions is just to give up and that’s just not an option (Manoranjan Interview, October 22 2013).

6.9 Conclusion

This chapter has examined why justice advocates appeal to the media alongside law in transitional justice. It identified eight key functions of the media in transitional justice: exposing crimes; naming crimes; naming perpetrators; creating a public record; acting as a parallel and intersecting justice process; setting the agenda and mobilizing action; applying pressure for legal and political processes and being a tool for pursuing justice. Importantly, some justice advocates perceived these functions to be similar to those of legal systems. This suggests that the media can act as an alternate justice process when law is limited.

Firstly, the media can play a role in transforming mass atrocities from being unknown to known. It can also be an accountability mechanism for official truth-telling mechanisms. The media can provide a space for victims to bear witness and to be widely heard or for perpetrators to be publicly named and shamed. It was also important for the media to be used as an official record of harm alongside an official legal record. This indicates that the media and law are seen as particularly interconnected in the function of creating a public record. From some perspectives, the media is seen as creating a public courtroom in which the audience becomes the jury and can deliberate on the justice claims. In drawing attention to these crimes and perpetrators, the media can function to set the agenda, shape public opinion and mobilize people to act in stopping human rights violations. It acts to inform the public and puts pressure on legal authorities and politicians to respond.

However, as was identified in the last section of this chapter, justice advocates also believe the media’s capacity to be an official mechanism for justice is limited. Firstly,

163 it cannot officially acknowledge the truth. More significantly, it cannot perform legal functions such as make an official judgment, punish perpetrators or sign treaties. Rather, the media is seen as acting in a support role or as a tool to pursue justice through mobilization of the public and putting pressure on political and legal elites to act. The next chapter builds on these findings by exploring the limitations of the media’s role in transitional justice in more depth.

164 Chapter 7: The Media’s Limitations in Transitional Justice

We have conducted several demonstrations during the peak of the massacre in 2009. The protest march in January 2009 drew more than 100,000 to the roads of the city. Then again in April drew more than 200,000 to the streets. It was the largest single ethnic group’s protest ever to happen in the UK. It’s unparalleled in the history of Britain’s political demonstrations, even though the large number of Tamils – two out of three came to the streets – the media shunned it. We have to consider why is it? Unlike Rwanda or any other genocide, when the international communications were not as good we had all the evidence there – photos, videos – but even though the Tamil diaspora was everywhere in all the major cities and provided the information there was no action taken to stop the killings and the massacres. There was very minimal attention given by the media. That is very strange. Because of these views of the international community and the media 40,000 were killed. And we suspect it’s more than that (Kumar Interview, October 11 2013).

The above comment demonstrates the frustration and confusion that justice advocates feel when the mainstream news agenda does not report on conflicts in which thousands of people are killed. Furthermore, the media is seen to ‘shun’ the public opinion of hundreds of thousands of citizens who publicly demonstrate their concern about these atrocities. Kumar’s comments above reflect the literature outlined in Chapter 2 that shows how the media generally fails to report on state crimes. This chapter examines the limitations of the media in holding states to account for human rights violations. Firstly, this chapter discusses how justice advocates differentiate the media into exceptional news organizations that investigate and report on state crimes and those that do not. Thus, it develops a typology of the media as: complicit in state crimes, indifferent to state crimes, or a participant in pursuing justice for state crimes. Secondly, the chapter explores how justice advocates believe the media fail to report on state crimes for reasons that can be divided into three categories I have called: ignorance, commercialization and politicization. Finally, the chapter finds that although justice advocates appeal to the media for justice they are well aware of its limitations.

7.1 A Typology of the Media and State Crimes

Justice advocates do not view the media as a single entity that speaks with one voice to one audience. This differentiation between media organizations was often discussed in terms of how some media play a ‘positive’ role while others play a ‘negative’ role. For example, as Tamils Against Genocide co-founder Jan Jananayagam explained:

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I don’t think the media’s role is always positive. It’s potentially positive and potentially not. At the time of the mass atrocity crimes the media could either have been positive or negative. It could have contributed, it could have not covered it, and it could have been inaccurate at the time, thereby delaying the reactions to it. The media is not always an innocent party (Jananayagam Interview, October 5 2013).

This advocate believed the media makes an active choice about how it reports state harm and this determines what kind of role it plays. The media may contribute, not cover it or provide an inaccurate account. Accordingly, the decision the media makes determines how complicit it becomes in the state crime. Therefore, it is not viewed as an ‘innocent party’ and, as we can see from this chapter’s opening comments, the media’s actions or inaction can be perceived to contribute to 40,000 deaths. Thus, we see how the media can be effectively positioned as complicit in state crimes, indifferent to state crimes or a participant in pursuing justice against state crimes.

Most justice advocates singled out particular news organizations that had been a participant in the pursuit of justice. An example of this was two newspapers that continued to publish details of the disappeared during the time of the military regime in Argentina. As one justice advocate Juan Mendez explained:

It’s not possible to talk of the press generally because unfortunately the mainstream media was incredibly cowardly on that and they would not even take interest in the fact that somebody had been abducted, but there were a couple of newspapers that escaped that criticism and one was La Opinion headed by Jacobo Timerman and the other was the English language newspaper The Buenos Aires Herald but of course that had a much more limited circulation. Nevertheless when things got really bad and lawyers could not even go and talk to journalists the families did and their editors Timerman and Robert Cox they had a very honorable attitude towards receiving the mothers and wives of those who had been abducted and publishing. Even then you have to read the small corners of the interior pages because they just couldn’t do much more than that and occasionally they would have an editorial column. Timid as it was, La Opinion was actually closed down by the government and the property of the newspaper confiscated and Mr Timerman spent a year or two in prison and was badly tortured. Cox, because he was a British citizen he was not arrested nor was the newspaper closed, but he was hounded out of Argentina and his children at school would get threats so he had to leave. So even this limited amount of media coverage was not risk-free (Mendez Interview, October 23 2013).

166 From this account we see how most organizations were perceived to play a complicit role during the military regime. These organizations were not the ‘innocent party’ that were unaware of the state harm. Instead, they were regarded as too ‘cowardly’ and chose not to take an interest in the plight of victims. However, Mendez described how there were two organizations that participated in the pursuit of justice even at great risk of suffering state harm. So, in his view, the media is viewed as an ‘honorable’ participant for its actions. This recognition of organizations that have been participants includes the individual actors working at these newspapers – in this case the editors Jacobo Timerman and Robert Cox. As Buenos Aires Herald editor Robert Cox said, ‘there was a lot of news that I was hesitant to report because of the circumstances but I felt it my duty to do so, so I did it’ (2008: 202). His fellow editor at La Opinion Jacobo Timerman expressed how ‘the one thing that was impossible was to shut your eyes’ (2002: 123). So when justice advocates appeal to the media it appears they may not just engage with the media as an organization but also with specific journalists. Furthermore, there are journalists who believe it is their duty and it would be ‘impossible’ not to report on state crimes.

This recognition of specific journalists who were participants in justice claims was also evident in the Aboriginal Tent Embassy case. As justice advocate Gary Foley has highlighted:

An unlikely friendship was that which developed between myself and Sydney tabloid Daily Mirror journalist Gus de Brito, who wrote a major feature article on me in 1972, which overnight had created instant notoriety…Another young journalist in the Canberra Press gallery at the time who became friends with some of the Embassy staff was Michelle Grattan. She nevertheless maintained a professional distance from the tent people, and wrote some of the best (and sympathetic) news coverage of the protest. Also Jack Waterford who would later become editor of the Canberra Times made some close friends among the Embassy activists, especially Gary Williams (2014: 38).

In the Sri Lankan case study, most justice advocates singled out the British television station Channel Four and its documentaries on the country’s conflict. Lawyer Ali Beydoun said:

I can say the media has been very helpful and particularly the UK media and particularly Channel Four media in bringing to light the violations we’ve seen in

167 Sri Lanka. Only up until Channel Four began to expose it I’d say very few people had been aware of what was happening. And personally Channel Four was one of the first media pieces on Sri Lanka that really opened my eyes to what was happening. When I saw the Channel Four pieces that’s when I realized there was something horrible going on and nobody was doing anything about it. It was because of the media who inspired me to join some advocacy efforts and bring accountability through litigation (Beydoun Interview, October 17 2013).

Conversely, justice advocates also highlighted particular news organizations that have played a complicit role in mass harms. This was seen again in the case of Argentina during the military regime years. As Clarisa Veiga stated:

There were only one or two papers that gave publicity. You had to read between the lines if you wanted to extract something and, depending on the journalists, they could disguise things better. Generally, the big two papers the National and Clarin were favorable to the military (Veiga Interview, November 2 2013).

Samples has also noted how what is called entrelineas, or ‘between the lines’ criticism, was a mode of resistance that some Argentinean organizations used during the dictatorship in which political issues were raised in an absurd style through literary devices such as metaphors (2008: 24). From Veiga’s perspective, it is only a few papers that are identified as participants in publicizing human rights abuses. In this case, we can also see recognition of the journalists who could ‘disguise things better’ rather than just the organizations. But there are also two organizations – considered to be ‘big’ so presumably have significant influence – that are identified as being favorable to the state. The head of the Argentine Federation of Press Workers, Rodolfo Audi, was quoted as calling the relationship between the dictatorship and the media as a collaboration to preserve the status quo, saying ‘the established newspapers became accomplices in this process’ (Knudson 1997: 100). So, it appears that justice advocates believe that there are exceptional organizations and journalists who act as a participant in the pursuit of justice while most organizations, and those that are more powerful, act against the interests of justice and are complicit in or indifferent to state crimes.

Justice advocates are aware that the media has other interests than the pursuit of justice to consider when making news choices and that this may determine the role they play. This example demonstrates how one advocate perceived why news organizations reported on the Sri Lankan conflict differently:

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When we say media we need to see what is behind the media. Is it corporate interests, is it government interests or are there really independent media that are there to help people who have no voice? There aren’t that many. You have to pick and choose those. In the UK Channel Four has taken it upon themselves to dig into the truth and how many are like that? In the Washington Post while in the midst of the heat of the battle the foreign reporter is writing about a baseball game happening in Colombo (Sreetharan Interview, October 15 2013).

This goes beyond just differentiating between organizations to considering why these differences exist. So, those organizations that chose to write about a baseball game rather than ‘dig for the truth’ are perceived as being influenced by government or corporate interests. Again, we see those organizations that are participants in trying to find out the truth about state crimes, such as Channel Four, are considered exceptional as there ‘aren’t that many’. Furthermore, these media organizations are seen as ‘independent’ from outside influences. Significantly, it appears that justice advocates ‘pick and choose’ the organizations that are perceived as independent to engage with. This demonstrates how the role of the media is seen to be determined by its organization, actors and interests. Also, that when justice advocates appeal to the media they identify and target those that are most likely to be fellow participants in pursuing justice for harms.

The ability to ‘pick and choose’ which media organizations to engage with, however, can be very limited under repressive regimes. Another observation of Sri Lankan media coverage demonstrates how government interests can dominate the interests of corporate organizations. This was evident in the case of Sri Lankan journalist Jayaprakash Sittampalam Tissainayagam who was held without charge for six months under the Prevention of Terrorism Act in 2008 over allegations he was intending to incite communal hatred through his writing. Tissainayagam’s account of how his case was reported shows how the liberal media failed to play its traditional role as a public watchdog. It is worth quoting him at length to illustrate how the media operates in a conflict environment:

Before speaking of the Sri Lankan media we have to understand that it is not a monolith. While language differences (Sinhala, Tamil, English) and government- owned and private-owned media are well known divisions, there other more

169 subtle gradations we must note. For instance, media especially at that time while the civil war was still going on also had private media that was pro-government and to whom a journalist like me speaking about Tamil rights and criticizing the government’s war effort amounted to ‘terrorism’. The roles played by the local and international media were different. In the case of the local media the government-owned institutions openly played up the story that my business partner and I were terrorists. The government-controlled newspapers, radio and television carried poisonous pieces including completely fictitious stuff that we were involved in an act of murder near our office. This was supplemented by government websites. Some private mainstream media tried to give a slightly more ‘balanced’ coverage partly because I was known to most of the senior journalists and they could not be entirely one-sided. There were some media institutions that continued (pressure on the private media not to publish my case was high with the government threatening them as well) to give me as much support as they could. This was mostly done by some (not all) journalists who knew me personally and were senior enough to go further than others to publicize my innocence. The international media publicity was mostly very helpful. Nearly all the US, British, Canadian, Australian and Indian media carried accounts over the entire period from my arrest to my coming into exile. Some of them were publishing press statements by human rights and media freedom organizations (Tissainayagam Interview, October 21 2013).

This shows how a liberal understanding of the media’s role does not always result in freedom of expression. As the Argentinean case study also indicated, the rare instances when the media was a participant in the pursuit of justice appears to be driven somewhat randomly by individual actors. In this Sri Lankan case, it was the journalists who knew Tissainayagam and had the seniority to challenge corporate and government interests who were participants. This account also demonstrates how the media is particularly limited in conflict situations when organizations are at threat of becoming victims too. Under these circumstances, it is not just the media’s interests that must be taken into account but also the risks it faces in acting as a participant in justice claims. This will be discussed in more depth in the section about censorship. Another interesting distinction made here is the different roles that local and international media play. In contrast to both public and private media in Sri Lanka, the international organizations were ‘mostly very helpful’ so were viewed as being participants in justice claims.

Other advocates have also described how the international media can be participants in justice claims. Former Australian diplomat Bruce Haigh served in Sri Lanka and South Africa during the conflicts. Haigh explains that a tactic South African journalists and diplomats used when they wanted to pursue justice in the local media was to engage with international media:

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One of the things in South Africa was that the journalists themselves would brief the Guardian or the Times or the Financial Mail in London or the New York Times. A lot of these papers also had local correspondents so maybe sometimes it was calling them up, having lunch and telling them the story. They knew the game so they would publish the information that local journalists might be having trouble with. The way it worked was the story would go out and be reported by the local media who would say ‘The Guardian today reported that 15 young black activists were detained and three of them were known to have died in detention’ or something like that and then the local paper would go to the minister and others and say ‘what’s the truth behind this story, what’s going on?’ So, it was a bounce back (Haigh Interview, July 12 2014).

The engagement with international media is also evident in the Aboriginal Tent Embassy case study. For example, Embassy activist Pat Eatock described how overseas coverage of a demonstration was very good compared to national newspaper reports. She noted how ‘The New York Times carried a front-page story and also featured a follow-up story. The London Times also covered the demonstration (quoted in Foley, Schaap and Howell 2014: 144). Advocate Ellie Gilbert also compared the international media more favorably to local media. As she stated:

At the moment the media is negative and they set up someone like [the Australian Government's Indigenous Advisory Council chairman] Warren Mundine. How can he represent all Aboriginal people? It’s just so wrong. The media right now is the Time magazine – a readership of 35 million. [Journalist John Pilger’s] done three articles. That’s a huge readership. It’s like the rest of the world knows what’s going and that’s what they said to us at the UN – ‘look we know the problem but what’s the solution’ (Gilbert Interview, July 23 2014).

These comments reflect how justice advocates perceive the international media to be participants because of the prominence that newspapers give justice claims, such as the front page. It also suggests that local media are considered complicit because of who they choose to rely on as news sources. As Gilbert has highlighted, the local media have chosen to ‘set up’ Warren Mundine, who is associated with conservative politics, as a representative voice for all indigenous people, which according to this advocate is ‘wrong’. Instead, Gilbert considers the international magazine Time to be ‘the media right now’ because of its ability to communicate the ‘right’ representation of Aboriginal issues to a widespread audience. From Gilbert’s perspective, this has the effect at the international level where ‘the world knows what’s going on’.

171 In Buenos Aires, the Centre for Legal and Social Studies’ director Gaston Chillier emphasized how although the local media had failed to highlight atrocities, ‘the media was a powerful instrument outside Argentina’ (Chillier Interview, October 29 2013). The case of the Buenos Aires Herald is interesting because although it was a local paper, it was foreign-owned and run by foreigners. This may be a reason why it had greater capacity to be a participant in pursuing justice for state crimes. However, as Samples has highlighted:

Some authors have observed that the Herald’s status as a foreign-owned newspaper or the fact that some of the editors were British subjects endowed them with a cushion, a certain degree of protection from the military’s wrath. [Herald editor] Robert Cox, however, disagrees with that assessment, noting that, “In fact, it was more dangerous for us because at any moment we could have been closed down for being a foreign-owned newspaper that was anti-Argentine or communist.” As such, the Herald was an easy target compared to established newspapers – like La Nación – that had a great deal of resources and a prestigious reputation’ (2008: 23).

What these perspectives suggest is that the international media is less limited in playing a participatory role in pursuing justice regardless of whether the state is a military dictatorship, apartheid regime or liberal democracy. Furthermore, it seems justice advocates are aware of this and use tactics to exploit this greater freedom and open up a space for the local media to play a participatory role.

This section has explored how, when considering the role of the media, justice advocates understand it as a pluralistic rather than a monolithic system. They believe that media organizations make a choice to be complicit in state crimes or participants in pursuing justice for state crimes. The organizations that choose to be participants are considered exceptional and often influenced by individual actors. This section finds that justice advocates recognize what interests are influencing the choice that organizations make and that organizations are more limited in their choices in conflict situations. Finally, it shows how international media organizations are perceived as having greater freedom to play a participatory role and can be engaged to open up spaces for local media.

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7.2 The Limitations of the Media in Pursuing Justice: Ignorance

This section begins the discussion of how the justice advocates viewed the media’s limitations in pursuing justice. In particular, it refers to when the media is limited either because it is ignorant of injustices or ignored injustices because it did not fit the news agenda. As discussed above, justice advocates are disappointed when the media does not provide coverage of mass protests against human rights abuses or chooses instead to report on a baseball game while thousands are being killed in the same country. This section explores in greater depth how justice advocates perceive ignorance as a limitation to pursuing justice in the media. However, despite this limitation, advocates believe there are ways to engage with the media that can overcome an initial ignorance about justice claims.

Jegan Waran, an Australian Tamil engineer, claims he witnessed war crimes while working as a volunteer in Sri Lanka’s north during the final stages of the conflict in 2009. He later filed an indictment in the Melbourne Magistrates Court in 2010 against the president Mahinda Rajapaksa during his visit to Australia. His daughter, Brami Jegan, was working as a radio journalist in 2009. However, she left journalism to focus on advocacy when she became disgusted with how the Australian media was reporting the war. As she explained:

It really added to our trauma that the international media were not acknowledging what was actually happening in Sri Lanka and they were just spinning the government line. It really added to our pain because we felt really let down by the media. Since talking with journalists since then I do honestly believe the reason it was so misrepresented was because not much was known at all about the conflict when the war happened. What most people knew about the conflict was the Tamil Tiger terrorists would be defeated. And it was for that reason the conflict was so disgustingly biased towards what the Sri Lanka government wanted the world to understand. And I believe if the conflict was to happen again the reporting would be different because the public opinion and the media opinion are heavily weighted against Rajapaksa (Jegan Interview, July 26 2014).

What this shows is how the media’s ignorance can compound the injustice that victims feel. It also demonstrates how ignorance can be seen to result in media ‘bias’. If the media does not have a knowledgeable understanding of a conflict then advocates

173 believe the reporting of it can be one-sided and that journalists rely on ‘authoritative’ sources such as state officials or what is seen here as ‘spinning the government line’. This highlights how even international news organizations can be perceived as indifferent to state crimes if they are unaware of injustices.

Justice advocates believe that media indifference can limit legal solutions to a conflict. The British Tamil Forum is an organization that advocates for human rights and a democratic path towards self-determination for Tamils in Sri Lanka under the framework of international law. It has supported legal cases against the Sri Lankan government and aims to provide information to the public about Tamil oppression in post-colonial times. As general secretary Ravi Kumar explained, the British Tamil Forum sees the media as a key participant in this aim:

The media has to find the root cause of the problem, that is where the international media is failing now. Once they find the root cause of the problem, the solution becomes very simple. They can apply the international system of law but without identifying the root cause of the problem, especially the Tamil issue, there is no solution and there will be no peace (Kumar Interview, October 11 2013).

So in this case the media is perceived to be not only ignorant about the final devastating stages of the conflict but also the origins of the country’s 30-year civil war. For justice advocates, this ignorance of the ‘root cause’, such as ongoing political and social discrimination, means that finding a solution and peace in Sri Lanka is limited. What this indicates is that the media’s role is to ‘find’ and publicize the root cause and this will lead to judicial accountability. But in some cases, rather than waiting for the media to ‘find’ this information on its own, justice advocates engage with journalists in a bid to provide this information for them.

Australian-Tamil advocate Sam Pari became involved in raising awareness of human rights issues in Sri Lanka after her visit there in 2004. Pari’s advocacy intensified during 2009 and her focus shifted from informing policymakers and politicians to the media. As she stated:

That’s when I started contacting journalists and trying to work out how to get the media to report on this. We would have thousands of people at a rally and the media wouldn’t report on it but then they would report on Paris Hilton’s latest dress so it didn’t make sense to me how thousands of Australian Tamils

174 who are taking time off work and university to turn up to the city to march down Bourke Street in Sydney in peak hours at lunch time didn’t make the news. So that’s when I started looking into what catches media’s attention and over time I built up a good relationship with various journos who showed an interest in our issue and by default I became one of the spokespeople for the Tamil community and being approached for comments by the media (Pari Interview, November 11 2013).

Again, this comment demonstrates how justice advocates are disappointed when demands for justice are ignored, in this case for Paris Hilton’s dress. Yet, it is not ignorance of the facts, events or root cause that is the seen as the issue here. Rather, the media is aware that thousands of people are rallying but ignores this expression of public opinion and reports on other events. It appears that the media has chosen other stories to fit its news values and agenda. In this case, Pari believes the media has valued entertainment over democratic participation. Despite this limitation, justice advocates try to discern what the media values and how to get their justice claims on the agenda. They engage with the media by building up relationships with journalists and this can result in the media approaching the justice advocates. This strategy is viewed as successful at overcoming media indifference as Jegan explained:

We learnt in the last five years what the media wants and how to pitch a story. The media’s opinion on the Tamil struggle has definitely shifted and that’s been because of the very hard work of the Tamil diaspora community. There have been a handful of people who have consistently worked very hard to get that information out there to win the trust of journalists so we’re not looked at as terrorists anymore (Jegan Interview, July 26 2014).

In the Aboriginal Tent Embassy case, it appears that justice advocates perceived that the media becomes indifferent when justice claims do not progress alongside the news cycle. This means that justice advocates believe they must continue to create new angles in order to keep the media’s attention. So, ‘a particular leader or strategy may appeal to the news media for a certain length of time and then they ignore it and so something new has to be generated to arouse further interest and take the policy on to the next step to continue the process’ (Duncan 2014: 65).

In the Sri Lankan and Australian case studies then, justice advocates perceive the media to be ignorant of their appeals for justice. They believe this occurs because the media is ignorant about the state crimes or the historical causes of the conflict. In these cases,

175 the media is also seen as indifferent if it ignores justice claims and excludes them from its news agenda.

The Argentinean news media also failed to report the human rights violations that the military dictatorship perpetrated against citizens. For the editor of the Herald, Robert Cox, it was an inexplicable neglect of the mainstream press. As he wrote:

What is more difficult to understand is the attitude of long-established independent newspapers such as La Nación, whose prestige was so great and whose reputation protected them from any insidious charges that their editors were closet Marxists or that their staffs were infiltrated by terrorists. Why did they simply turn a blind eye to the highly visible and undoubtedly newsworthy consequences of the war against terrorism, which was producing a new strain of terrorism more venomous, in some aspects, than the evil the military had pledged to extirpate from Argentina? (1980: 11)

This insight suggests that such mainstream news organizations were aware of the state crimes, had the independence to act as a participant in pursuing justice, would realize the news values of the conflict and yet still remained indifferent. What may be the difference in this case study is the public’s lack of interest in human rights abuses. For example, when a BBC correspondent asked the news editor of La Nacion why his publication had nothing to say about the disappearances, he replied, ‘Our readers are not interested’ (Knudson 2010). Argentine journalist Eduardo Crawley has also noted, ‘the rest of the press remained completely silent, as did the politicians, and the great mass of the population preferred not to know’ (Knudson 2010: 431). As Knudson has argued, ‘the public seemed not to want to know what was happening, and in this regard it was as culpable as the press itself. In view of this indifference, little by little the failure of the Argentine press to unmask these crimes metamorphosed from complacency into complicit’ (2010: 107). In this case, although Argentina is under a military dictatorship, the media is still perceived to have the independence to publicize justice claims but chose not to report them. Some of those who worked in the media during this time attribute this decision to the indifference of the public. Thus, the media is seen here to reflect the public opinion, rather than being ignorant of the facts or choosing other stories that fit with the news agenda.

This section has shown how ignorance may limit the media playing a participatory role in the pursuit of justice. The media can be ignorant about the facts of the conflict and

176 its origins. It can also ignore appeals for justice if these do not fit its news values or agenda. This ignorance is seen as resulting in bias of media coverage and has the potential to impede a legal solution. Yet, despite these limitations, justice advocates believe this ignorance can be overcome if they engage with the media and continue making justice claims.

7.3 The Limitations of the Media in Pursuing Justice: Commercialization

This section explores how the commercial interests of private media organizations can be a limitation in the pursuit of justice. As has been briefly touched on, there are instances when the media will ignore appeals for justice in favor of news that will entertain, such as Paris Hilton’s dress or a baseball game in Colombo. What will be examined now is how justice advocates believe the media prioritizes its role as an entertainer and if it does report on state crimes it does so for audience consumption. Finally, it shows how justice advocates believe the media reports on the justice system to increase sales and advertising. However, it also finds that justice advocates do not consider the limitation of commercialization as a total barrier to justice. Rather, there is still space for the media to play a participatory role in pursuing justice if it does not conflict with its commercial interests.

Like many justice advocates, Ali Beydoun, differentiates between media organizations and, in particular, those that are more commercial:

You have a media that is out for ratings or media that is more commercial. It’s one thing if you’re going to be making a movie about something; it’s different if you have to fill a half hour of television every night. If you were to turn on the TV night and you have the networks, NBC, CBS, ABC, you can literally click between the three and they have the same news. That type of media I don’t see them as dedicated or disciplined in bringing about justice. They’ll report something for as long as people want to hear about something. But it’s this other media and maybe the words I should be using are alternative media. That’s where you start to see the difference between those that want to be partners to bring justice to a cause using media as a tool of that as opposed to those who use news media to entertain (Beydoun Interview, October 17 2013).

These comments show how the commercial networks provide homogenous news to ‘fill a half hour’ and are driven by audience demands. These are not ‘dedicated or disciplined’ media organizations that are ‘partners’ in pursuing justice. Rather, these

177 commercial networks use news media to entertain and their interest lies in boosting ratings, audience numbers and advertising. This view illustrates the tension inherent in the liberal tradition of media that the idea of a free media market was to keep the ‘fourth estate’ at arm’s length from the state so it could freely critique its actions (Errington and Miragliotta 2011; McNair 2011; Schudson 2008; Curran 2005). Yet, this means the privately owned media must also find its own means of capital and its role of public watchdog can be secondary to its needs to stay financially viable (Schultz 1998).

Some justice advocates also believe that changes in the media industry have turned the news audience into media consumers and the saturation of news choices means these consumers are disconnected from injustice. From this perspective, the free market and technological changes has created so much media competition that the coverage of justice claims is fleeting and empty of real meaning. For example, Bashana Abeywardane stated that:

The problem is we are living in a world with no moral content. And you see enormous amount of injustice happening on a daily basis but no one cares about it at all. But it would have been different if it happened 20 years ago – when there was less television and media – the people were more concerned about others’ plight. Now everything is being provided for consumption. Even the news of atrocities is part of our daily consumption. So it doesn’t make much emotional effect on you unless you are connected to it in another way so you go through it and choose what you like…So in the Sri Lanka context that’s what happened. If you look at the amount of evidence that came out, if that happened 20 years ago that would have created a huge thing. Now, it creates a media sensation but it doesn’t create anything structural for the victims (Abeywardane Interview, October 9 2013).

Accordingly, although the media does report justice claims at times, it can still be seen as playing a complicit role in that it provides ‘atrocities for daily consumption’. This view highlights how news is perceived as a commercial product that the public digests without any emotional connection to what they have seen. The shift towards consumption, rather than thoughtful moral consideration, means that any pursuit of justice through the media is believed to be as short-lived as the consumers’ attention span. From this perspective, the public is so overwhelmed with the ‘enormous amount of injustice’ that they ‘choose what they like’ from the daily atrocities. This macabre image of ‘atrocity by remote control’ results in a fruitless pursuit of justice. What we

178 are left with is a ‘media sensation’ rather than raising awareness about the possibility and significance of a ‘structural’ change.

Australian lawyer Rob Stary represented Jegan Waran in his claims of war crimes against the Sri Lankan president in 2010. In his work as a defense lawyer for high- profile terrorism suspects, Stary has become increasingly more engaged with the media in a strategy he calls ‘fighting fire with fire’. This stems from his belief the Australian Federal Police and other law enforcement agencies have become more overtly political, which he says is evident in their press conferences and leaks to journalists. In considering the media’s role in pursuing justice, Stary also highlights the commercialization of those that are the tabloid press:

We’re highly critical of the media, particularly the tabloid press. We know for a fact the Herald Sun’s commercial interest means they’ve made a concerted decision to run law and order cases because they know that sells newspapers. It’s easy journalism in a sense and promotes victim’s stories and attracts easy readership. They won’t have any in-depth analysis, you won’t see an article in the Herald Sun about why a person is entrenched in the criminal justice system because of the absence of educational opportunity, poverty, drug abuse, dysfunctional families or mental illness. You will never see an article like that in the Herald Sun ever (Stary Interview, November 19 2013).

This explanation shows how media coverage of legal cases is seen to be driven by newspaper sales and attracting readership and comes at the expense of ‘in-depth analysis’ about the criminal justice system. This view supports fears the tabloid press give a distorted view of the legal system, which can lead to undermining the law (Fox, Sickel and Steiger 2007; Sherwin 2000; Garapon 1996).

Another justice advocate described how the commercialization of the media coincides with the corporate interests of the state. Aboriginal activist Robbie Thorpe stated that the media was complicit in protecting settler-colonial interests in order to keep the myth of a legitimate nation alive:

The mass media is the problem. It’s the media driving this. The country was built on lies, deceit, propaganda and race hatred indoctrination. So this is a corporate body, it’s not a real nation. It’s a colony that never had a treaty, it never had consent. Of course they’re going to be selling this story hard and anyone who says differently is going to get stomped on. Because it undermines

179 everything about Australia and what it is. The truth will destroy the country (Thorpe Interview, August 11 2014).

Here we see how the media is seen to act in the interests of the ‘corporate body’ that is the state. Indeed, it is the media that is viewed as ‘driving this’ notion that Australia is a ‘real nation’, when in fact, it is a ‘colony that never had a treaty’. It is in the media’s commercial interests to be ‘selling this story hard’ because otherwise the country will be ‘undermined’ and ‘destroyed’. These comments show how commercialization is viewed as intertwined with politicization in a mutually beneficial relationship. This reflects the political economy approach in that the media serves to protect elite capital and political interests (Adorno and Horkheimer 1932; Chomsky 1980).

Yet, some justice advocates believe this limitation does not mean there is space for the media to play a participatory role in pursuing justice. Although there is an acknowledgment that the media is controlled by the elite there is also a perception that the interests of the proprietors may not be mutually exclusive to the pursuit of justice. For example, Sri Lankan advocate Sam Pari stated:

So the media plays a role in steering what kind of justice is being served but it’s also very short-lived. The attention span of the media is very short especially because of online stuff. The news is by the millisecond and, unless there’s a hidden agenda like Murdoch is quite powerful and has other interests he might be pushing his media that he controls in a certain direction but that’s because he’s got that control. So that does happen as well when the media is controlled by puppeteers and I think the world in general is controlled by puppeteers and we can’t really do anything about it. So to an extent the media is controlled by very rich people who own it but at the same time you’ve got other issues that maybe these rich people don’t care about because they are small issues that aren’t necessarily going to be play a part in their own interests and with those things the people who deal with the media have a responsibility to steer it in a certain direction (Pari Interview, November 11 2013).

The proliferation of the media in a free market and its short attention span is again noted here as an influence on what role it can play in justice. However, another influence is if a media proprietor, such as News Limited’s executive chairman Rupert Murdoch, has an agenda. So, we can see the media is seen to be controlled by ‘rich puppeteers’ as is the rest of the world. This reflects the political economy approach in which the media serves to protect the capital interests of elites. Yet, this is not to the exclusion of other issues and agendas if it does not conflict with the interests of ‘rich people’. Therefore,

180 if the pursuit of justice does not interfere with commercial interests then there is a perceived space for advocates to influence the role of the media.

This section has shown how the commercialization of the media can limit its role in the pursuit of justice. Firstly, it demonstrates how commercial television networks are perceived as broadcasting news to entertain rather than serving as partners in addressing injustice. Secondly, news of atrocities is seen as becoming part of our daily consumption so audiences can no longer emotionally connect with injustice. Thirdly, there is the perception that the tabloid press distorts news about the legal system to attract readers and boost sales. Fourthly, although the media appears to be controlled by rich proprietors who can direct the news to fit their agenda, justice advocates still believe the media can be a participant in pursuing justice if it does not conflict with commercial self-interest.

7.4 The Limitations of the Media in Pursuing Justice: Politicization

This section examines how justice advocates perceive politicization by the state as a limitation in the media’s ability to be a participant in pursuing justice. It finds justice advocates believe this may be overt politicization such as when the government controls the media and uses propaganda. It can describe how justice advocates think government agencies use the media for their own political purposes. It may also refer to when media organizations become polarized towards a particular government or party or how the media is a political actor in the democratic process. Here, we can see an overlap between state propaganda and Marxist critiques that highlight the implicit ways that the media filters out marginalized voices in favor of elites (Adorno and Horkheimer 2002; Chomsky and Herman 1988). Unlike the other limitations this chapter has explored, justice advocates do not think the media can be a participant in pursuing justice when it is politicized by the state.

As discussed above, the case of Sri Lankan journalist Tissainayagam showed how the government-owned and controlled news organizations were ‘waging a media war’ against him with ‘poisonous’ and ‘completely fictitious’ stories calling him a ‘terrorist’. This example is the most extreme version of how the media can be politicized. In this case the media is being complicit in human rights abuses. Another example is the Sri Lankan government’s response to the Channel Four documentary Killing Fields. This

181 film was credited with exposing evidence about war crimes and justice advocates described it as an exemplar of the media’s participatory role in pursuing justice. A month after it was released, Sri Lanka’s Ministry of Defense broadcast its own televised program called The Lies Agreed Upon, which rebutted the allegations of state harm. The International Crisis Group referred to the government’s film as ‘propaganda’ and said it was ‘far from the successful refutation’ it claimed to be (2011). This is not an unusual or new approach for governments involved in ‘dirty wars’ to use the resources of the media in what are considered counter-insurgency operations (see for example Kitson 1971).

However, justice advocates recognized the government program as an effective politicization of the media. As Ali Beydoun explained:

Media power can be abused just in the same way they can be informative and educate people, it can be a place where people are rallied against horrible causes and a false story can be told that makes people participate in the injustice. When we talk about the media we have to talk about all the media and I think about Sri Lanka’s response to the Channel Four video called Lies Agreed Upon. And having worked on the Sri Lanka file for some time I know for a fact much of the story they told was false, but I know it only because I’ve spoken to the people, I know it only because I’ve researched and studied it. But if I was an average common citizen who only saw the Channel Four video and next day I saw the Sri Lanka media video I might be lost as to who is telling the truth (Beydoun Interview, October 17 2013).

This shows how politicization in the form of propaganda is seen to not only limit the media’s role in pursuing justice but it is complicit in perpetrating injustice. In this case, it was alleged to be providing false information. This is not viewed as a problem if the public does their own research on an issue but for the ‘average common citizen’ who gets their information and news through the media it can be confusing. As we can see here it can become difficult to know ‘who is telling the truth’. Even more disturbing from this perspective is how politicization can be used to ‘abuse’ media power and encourage people to ‘participate’ in the injustice. This indicates that politicization is seen as the most influential factor in the media playing a complicit role in state crimes.

Justice advocates also expressed the view that the state does not have to directly control the media for politicization to be a factor in the role it plays alongside the justice system.

182 For example, in the Australian context, one advocate believed that law enforcement agencies were taking a more political approach, in particular, to terrorism cases. Lawyer Rob Stary described how his notorious client Jack Thomas was arrested ‘in a fanfare of publicity’. He goes on to state that:

The [Australian Federal Police] had recruited the commercial television networks to attend with them at his parents’ house when a warrant had been executed and of course they had done nothing wrong. They used the media very effectively. There were press conferences by the chief commissioners and the premier that an imminent terrorist attack had been thwarted. And it was all embellished hyperbole. What happens is that they have joint press conferences between the politicians, the policing agencies and then they present the person in court after they contaminate the public view and they say this is all a matter of subjudice now you’re not permitted to make any comments. And what invariably happens in all of those cases the evidence doesn’t match the initial allegation. It’s always overstated, embellished or exaggerated. We know they contaminate the public view, so we’ve got to fight back. So we’ve taken a much more overtly aggressive approach ourselves in all of those politically motivated cases (Stary Interview, November 19 2013).

From this perspective, the state’s law enforcement agencies ‘recruit’ the media, which is then ‘used very effectively’. The situation is seen to become even more politicized when legal authorities hold joint press conferences with politicians to publicize the arrest. Thus, this is seen to ‘contaminate the public view’ of these ‘politically motivated cases’ rather than allowing procedural justice to take its course. This example suggests that the media does not have to be under the control of an oppressive regime to be seen as co-opted and politicized. The media may still be ‘used’ for political gain in a liberal democracy such as Australia. This perspective supports the Marxist critique of how the free press can still serve elite political interests (Adorno and Horkheimer 2002; Chomsky and Herman (1988).

Similarly, in the case of the Aboriginal Tent Embassy, justice advocates characterized media coverage of justice claims as institutionalized white racism. One activist Paul Coe described how the press covered former Prime Minister Gough Whitlam’s speech on land rights but then left before reporting on the Aboriginal speakers:

There were ten black speakers there speaking about the grievances and the problems of the Aboriginal people, but the press, the white press, the white men, were not interested. All they wanted was Whitlam’s policy speech and they left…

183 This to me is a very good value judgment on this present society and in fact when the black people themselves are concerned, who have come from just about all over Australia, to voice their opinion, when the media themselves denied them the right to get their opinion heard (quoted in Foley, Schaap and Howell 2014: 153).

Justice advocates also blame media organizations that are not directly controlled or used by the government but that are polarized in their support for the state. In the case of Sri Lanka, the political polarization arises from ethnic polarization of the media into Sinhala, Tamil and English (Disanayaka 1999). This is another example of how politicization is seen as a factor that limits the media in being a participant in pursuing justice. As Sri Lankan advocate Jan Jananayagam put it:

I think the media is to blame. I don’t think they did what they should have done. [Tamils Against Genocide] is hoping to do a study on why the media failed in 2009. We have a paper now on ethnic polarization of the media in Sri Lanka and which media gets affected by the government censorship and in which ways. It definitely worked to the Sri Lankan government’s advantage – the way the media reported it. And it allowed the Sri Lankan government to do what it did (Jananayagam Interview, October 5 2013).

According to this perspective, the polarization of the media has an effect on how it responds to government censorship. So those organizations that are politically and ethnically biased towards the state reported the conflict in a way that ‘worked to the Sri Lankan government’s advantage’. This means the media ‘is to blame’ as it ‘allowed the Sri Lankan government to do what it did’. Therefore, once again, this shows how political polarization is seen to be a factor in the media’s complicity in state crimes.

For another advocate, the media can also be considered an active participant in the political process. Gaston Chillier, the director of the Centre for Legal and Social Studies stated that:

Another aspect of the media today in Latin America and in Argentina particularly is the media is highly polarized politically. And the media is also a political actor, including the human rights issue, it is covered with a political bias (Chillier Interview, October 29 2013).

This reflects scholarly arguments that the media does not stand outside the political process like the fourth estate acting as a check on the abuse of power. Rather, it is acting as Cater’s fourth branch of government and has the power to shape and influence

184 political events (1959). This means the media does not stand back as an observer, recording and reporting on politics – it is political. Therefore, the choices the media makes about how it covers human rights issues can determine the outcome of how these are addressed. From this perspective, the media has the power to influence the state.

Politicization is seen as a more powerful limitation on the media than ignorance or commercialization. At its extreme, the state controls the media and creates its own propaganda. It can also recruit and use the media for its own political purposes. Even when the media is less under the government’s control it can be polarized, biased and institutionally racist in a way that allows injustices to occur. In a more active role, the media can be viewed as an actor that determines and influences political events. This section ultimately finds that justice advocates view the media is more likely to be complicit in state crimes if it is politicized.

7.6 Conclusion

This chapter has demonstrated how the media can be limited in being a participant in the pursuit of justice. It has argued there are three main barriers justice advocates face when appealing to the media: ignorance, commercialization and politicization. From the perspective of advocates, the media can ignore justice claims because it lacks knowledge of the conflict, is influenced by corporate interests, uses news to entertain, shows political bias, or is institutionally racist. Yet, the chapter has provided evidence to show that justice advocates still believe there is value in pursuing justice through the media despite these limitations. This appears to be because there are exceptional media organizations and journalists who hear the appeal for justice and act as participants in this pursuit, sometimes at great personal risk. There are also instances in which justice advocates persist with engaging and informing the media because they believe these limitations can be overcome. Thus, I argue, that there are possibilities for the media to play a more participatory role in the pursuit of justice. In light of these findings, the next chapter discusses to what extent the media can and should be a participant in transitional justice. Furthermore, it analyses what the use of the media by justice advocates tells us about the limits of transitional justice and possible ways to productively expand it.

185 Chapter 8: Conclusion: The Media and Transitional Justice

My thesis has taken an empirical bottom-up approach to examining the relationship between transitional justice and the media. It has shown why some justice advocates engage with the media when they feel transitional justice processes are not incorporating their needs. I have done this by investigating how these advocates understand justice and, in light of this, how they view the media’s role alongside law in pursuing justice for state crimes. By way of conclusion, this chapter reflects on the main findings of the thesis, which demonstrate how the media is used as an unofficial democratic forum when transitional justice processes are limited or inaccessible. It then offers a discussion and analysis of what this tells us about the current limits of transitional justice and possible ways forward.

As I highlighted in Chapter 2, there is a growing debate among scholars and practitioners about the media’s role in transitional justice processes. There has also been an empirical shift towards examining and critiquing the scope of transitional justice from the perspective of affected communities. This chapter will contribute new knowledge to these two fields of research in transitional justice. It does so, firstly, by discussing how the media can play a role as a parallel and intersecting justice forum that may replicate and challenge formal transitional justice processes and what this means for official responses to state crimes. Building on this, the second section explores how the media is used alongside law as an unofficial democratic forum in which justice advocates appeal to public opinion in support of economic, social, cultural and political change. The third section debates the possibility of the media being included as a formal participant in transitional justice. It concludes that the media’s role should primarily be conceived of as an accountability mechanism within the public sphere that communicates opinion between civil society and the state. Finally, this research argues that, transitional justice could provide an official democratic forum outside of current legal and quasi-judicial models that can facilitate a negotiation of what the future looks like in a post-conflict society.

186 8.1 The Media’s Role as a Parallel and Intersecting Justice Forum

This thesis began in Chapter 4 to show how the central mechanisms of transitional justice, criminal trials and truth-telling are desirable for justice advocates across all three case studies. My research demonstrates how advocates continue to pursue justice through the law despite the many difficulties that have been identified in prosecuting state crimes (Balint 2012; Mertus 2000; Horowitz 1976; Drost 1959; Schabas 2008). This appears to be because some advocates believe that justice must be underpinned by an official legal process and judgment. As one justice advocate Bashana Abeywardane stated, ‘law is what it is all about’ (Abeywardane Interview, October 9 2013). A legitimate legal system is considered particularly important when a society has experienced the rule of law break down during conflict. Therefore, this reinforces one of the central goals of transitional justice projects that scholars and practitioners have identified, which is restoring the rule of law before criminal trials begin (Annan 2004; Brooks 2003; Mendez 1997; Stover and Weinstein 2004; Teitel 2002; McEvoy 2007).

Some advocates also believe truth-telling mechanisms are central for getting justice because there is an official acknowledgment of harm, injustice is put on the public record and testimony can be heard. There is a need to hear the truth about what happened and who was responsible for state crimes, which can then be used to form the basis for prosecution against perpetrators. There is also the desire to let the world know the truth as this can result in redress and public recognition of harm. However, these advocates believe the truth alone is not justice unless it is followed up with substantive political-legal measures. This evidence supports the view that transitional justice truth- telling bodies are critical as a first step in addressing state crimes (Hayner 1994). It also aligns with arguments that truth-telling must be linked with reparations, prosecutions or legislative reform for transitional justice to be effective (Roht-Arriaza 2006; Daly 2008). Thus, it appears that, for some justice advocates, transitional justice processes should combine truth-telling and amnesties with more substantive political and legal measures.

These justice advocates are keenly aware that legal processes can be constrained in achieving criminal justice and truth-telling, however, they still believe that law can hold out promise in the pursuit of justice. This appears to be because some advocates, to a

187 limited extent, view the law as a flexible institution where the boundaries can shift according to public opinion. What this suggests is that, despite what can be significant restrictions to accessing law, there is still the potential for spaces to open up within transitional justice where claims against the state can be made. If public opinion is on the side of advocates and support these justice claims, then these limitations are not seen as insurmountable. Thus, I argue that when transitional justice processes are not meeting the needs of justice advocates they appeal to public opinion as a first step in the pursuit of justice.

Despite the promise of law, my findings are congruent with other studies that show how a top-down implementation of political-legal measures often fails to meet the expectations and needs of communities (McEvoy 2008; Kent 2012; Robins 2011; 2012). The main limitation that justice advocates face is getting access to the legal system. Even when law is accessible, there is limited space to bear witness, give testimony, let the world know what happened and have the truth told. Furthermore, some justice advocates are appealing to a law that they do not consider legitimate because it is a colonial legal system or has been politically compromised during the conflict. For those who did have their cases heard, legal technicalities meant that law and its language did not match the lived experience of genocide (Behrendt 2001). These findings mean that, in some cases, criminal trials are incapable of fulfilling their functions of naming crimes, blaming perpetrators, punishing the guilty and deterring potential perpetrators, delivering reparations, reforming lawless societies and recording what happened for history (Mertus 2000: 145). I argue that this would explain, in part, why justice advocates use the media alongside legal cases to make their justice claims publicly known. As Mertus argues, justice advocates ‘look beyond the legal system’ to name the crime for themselves (2000: 15). In effect, it appears that advocates use the media as a parallel and intersecting justice forum in order to appeal to public opinion.

As was shown in Chapter 6, when transitional justice mechanisms are seen as not responding adequately, the media can play a role in providing a space for victims to make claims and bear witness, have their testimony heard, name and shame perpetrators, reveal evidence, and let the public judge the truth. This finding falls within Greer and McLaughlin’s definition of a ‘trial by media in which ‘individuals are exposed, tried, judged and sentenced in the “court of public opinion”’ (2012: 397). However, while

188 Greer and McLaughlin (2012) view this phenomenon as a ‘market-driven’ event by the news media, my research questions what is happening and what this tells us about transitional justice when a ‘trial by media’ is one that appears to be advocate-driven. Of course, the news media is still centrally involved in publicizing these legal cases, however, it has been the justice advocates who have brought attention to these claims through press conferences, media releases and public protests. From this perspective, I argue the media is seen as having the potential to replicate the functions of transitional justice. In some cases a ‘trial by media’ may challenge transitional justice processes. For example, in Argentina, justice advocates embarked on a public campaign against suspected perpetrators when the state implemented amnesty laws to appease military unrest and opted for a truth-telling mechanism instead. This suggests that advocates use the media for its capacity to do what Machado and Santos (2009: 147-148) describe as ‘sometimes exercises parallel functions of justice, potentially fulfilling in the eyes of the public a role that lies beyond the capacity of institutional justice’.

The characterization of the media as a parallel and intersecting justice forum is not an unproblematic one. For a start, as detailed in Chapter 7, the media can be just as inaccessible or complicit in state crimes as the law. This suggests that the media presents just as many challenges for advocates in their pursuit of justice and therefore, the media can also fail to meet the needs and expectations of a post-conflict community. These limitations of the media will be discussed in greater depth in the third section below. A so-called ‘trial by media’ also risks subverting legal processes and the principle of innocent until proven guilty for the sake of sensationalism (Greer and McLaughlin 2011: 27). For example, naming a perpetrator and making allegations of what crimes they have committed before charges are laid can lead to defamation of an individual. The media can also be in contempt of court if it publishes material that can jeopardize a fair trial. As Greer and McLaughlin have pointed out, a ‘trial by media’ can invert the principle of innocent until proven guilty and render extralegal punishment (2011).

There are several implications for transitional justice processes if the media is used as a parallel and intersecting justice forum. As justice advocates and scholars have both highlighted, the media’s exposure of crimes can lead to official investigations and prosecutions or informal restorative justice practices (Greer and McLaughlin 2012;

189 Chagnon and Chesney-Lind 2015). This means that the unofficial trial by media can be transformed into official acknowledgment and naming a crime in law. Karniel has argued a trial by media has the power to result in a different and better outcome than one produced by courts, which can be deficient (2014). One justice advocate Ali Beydoun who described several cases in which the public opinion differed vastly from the court decision also supported this view. However, there is a risk that a trial by media can undermine official responses to state crimes by highlighting the limitations of transitional justice. As Karniel contends, ‘the media also moulds the public’s opinion about the legal institutions and has a great impact on the public’s faith in these institutions’ (2014: 117). Therefore, if the media is perceived as being more effective at exposing crimes and perpetrators than legal institutions, public opinion may not support official transitional justice processes. I argue then that there should be caution when considering the merits of using the media as a parallel and intersecting justice forum, which will be discussed further in the third section below.

On the other hand, if we consider Habermas’ notion of the public sphere, there is a democratic potential in justice advocates seeking a trial by media during transitional justice processes. This is particularly salient in a post-conflict society where the purpose of transitional justice is to shift to a liberal democratic model. Given the nature of state crimes, a trial by media in these cases is not just highlighting what the alleged individual perpetrator has done but it also alerts the public to the role of institutions such as the politicians, military, police, judiciary and church in these mass harms. When transitional justice mechanisms are limited, there may be no forum for the public to discuss and debate how to address and respond to injustice. In the cases when a forum is provided, such as a criminal trial or truth-telling commission, there are still challenges in providing space for victims’ voices to be heard and bearing witness to be shared. This means there is little or no opportunity for citizens to engage in a dialogue where everyone has a chance to be heard in a mutual search for truth (Habermas 1998). This suggests that the media is appealed to as a parallel justice forum for its democratic potential to facilitate a broader truth-telling process by bringing in the broader society to this ‘public courtroom’. This democratic potential of the media will be expanded on in the next section.

190 8.2 The Media’s Role as a Space for Public Deliberation

My research identified in Chapter 5 that the kind of justice that advocates across all three cases want goes beyond criminal prosecution and truth-telling. As the findings show, justice advocates in all three case studies have challenged the justness of their country’s model of liberal democracy. In Argentina, advocates have engaged with the media to denounce neoliberal policies and make social justice claims. They have also reframed the harms of the past and continuing impunity to publicly critique state institutions and practices such as police violence. In Australia and Sri Lanka, advocates have emphasized colonial injustices and ongoing discrimination alongside their claims of state crimes. These advocates expressed how justice also meant self-government, rights to a homeland, social justice and reconciliation. These findings confirm the need for transitional justice to extend its scope to address the underlying political, cultural, social and economic injustice of a conflict (Mani 2008; Millar 2008; Muvingi 2008; Szoke-Burke 2015; Balint, Evans and McMillan 2014). It appears these justice advocates want these injustices to become part of the discourse that takes place in the media so the public may engage and debate how they should be responded to. Thus, I argue the media can be used alongside political-legal processes as an unofficial democratic forum – a space for public deliberation to contest a broader notion of justice that goes beyond a criminal legal case. It does so by securing the voice of victims, allowing witnessing to be shared, providing a space for reckoning with the past and also for imagining a future.

Habermas et al described the public sphere as ‘a realm of our social life in which something approaching public opinion can be formed. Access is guaranteed to all citizens’ (1964: 49). In this public sphere, a ‘community of subjects in dialogue’ would all have an opportunity to be heard and ‘the force of the better argument’ would usurp all other motives but the mutual search for truth (1989). It is a ‘discursive arena that is home to citizen debate, deliberation, agreement and action’ (Villa 1992: 172). This concept of the public sphere is a useful one to draw on and explain why justice advocates are engaging with the media because it presents the concept of a communal space that is accessible, where victims’ voices can be heard without restriction, that fellow citizens will hear and respond to claims of justice in the search for the truth. This is particularly important in a society that has experienced conflict, exclusion or an

191 oppressive regime where freedom of speech has been curtailed. Truth-telling mechanisms have the capacity to create this kind of democratic forum, however, as has been discussed in Chapter 4 these processes are not always successful at meeting the expectations and needs of victims, which is why justice advocates may also appeal to the media to bear witness.

As my findings have shown, some justice advocates are unable to access the law when making their justice claims. When it is accessed, victims’ voices must be confined within legal rules of evidence and language rather than a search for the truth or told in their own narrative. In the ideal public sphere, however, justice advocates can communicate their claims to fellow citizens without these legal limits or state constraints. This is not to say the media fits this ideal and it is not without its own significant challenges for justice advocates. Aside from the major limitations outlined in Chapter 7, there are journalistic norms and practices that can also stifle victims’ voices. These can include the interviewer focusing on certain questions or issues or the story being edited to fit production time or space. However, there is still some kind of agency in holding a press conference where the media attend, listen and record claims that can be empowering for justice advocates. There is also the potential for giving testimony in the media that would not be considered relevant in the court process, for example, if we consider the expanded claims of transitional justice, this could include the history of human rights violations in the country and political, cultural, social and economic disadvantage.

My research shows how bearing witness and letting the world know what happened means justice for some victims. In considering this, I argue that justice advocates use the media because it can help communicate their official and unofficial testimony to citizens more widely in the public sphere. As Greer and McLaughlin have discussed, a trial by media ‘reclaims “justice” from the courts and returns it to a networked citizenry’ (2012). Given this, the media has the capacity to facilitate the act of witnessing being shared among more people. Furthermore, my findings indicate that justice advocates believe that once citizens have knowledge of state crimes, then there is the possibility that public opinion may be formed that action needs to be taken to redress these harms. Justice advocates also identified how the media plays this role in ‘letting the world know what happened’ when it reports on trials and truth commissions. Here, the media

192 plays a supporting role in communicating these legal processes, the recognition of harm and the truth to the wider community through its capacity as a democratic forum in the public sphere. Transitional justice practitioners are aware of the need to mediate the proceedings of trials and truth commissions to the wider community and have ensured media reporting or established outreach programs to achieve this aim (Golcevski et al 2013; Pham and Vinck 2011; Cole and Silverman 2013). I conclude that this is a vital role that the media must continue to play in transitional justice projects.

A key purpose of transitional justice is to provide an official process for reckoning with the past, which can be in the form of truth and reconciliation commissions or trials. My research indicates that for some justice advocates it is important to address not only historical injustice but also how this harm continues in present forms of social, political, economic and cultural inequality (Mani 2008; Millar 2008; Muvingi 2008; Szoke- Burke 2015; Balint, Evans and McMillan 2014). However, truth-telling bodies are often constrained in meeting these expanded demands of transitional justice because they are a finite process restricted to a certain time and certain crimes. The media, on the other hand, does not have the same constraints as a commission. For example, in the case of Argentina, justice advocates are still engaging with the media more than thirty years later to link past harms to current injustice. The media is also not bound by legislative terms of reference and is thereby more open to supporting community discourse around issues beyond the scope of transitional justice mechanisms. This allows the media to be an unofficial democratic forum that has the capacity to reckon with the past and also support a space in civil society to keep discussing and negotiating what justice means in the present and into the future as the transition keeps progressing.

The aim of reckoning with the past is to shift towards a peaceful, reconciled, liberal democratic society. The assumption is that through accountability mechanisms such as criminal trials and restorative practices such as truth-telling, the state and its institutions will no longer commit mass harms. It has been assumed that once a liberal democracy is established there is no longer a need for transitional justice processes. However, as the academic literature and my research suggests, there is a need to reconsider how transitional justice can be applied in liberal democracies where direct violent conflict may have subsided but there continues to be broader structural and social injustice. I argue that the media can play a role in creating a space for the public to discuss, question,

193 debate and negotiate what the future should look like. For example, the future may be a social democratic state rather than a neoliberal model, for others it may be self- determination or a treaty rather than reconciliation and nationalism. As Ramirez-Barat argues, ‘the space of social communicative interactions itself acquires a unique role in transitional societies, as the space in which the public culture of a country can actually articulate the shift of norms and values that transitional justice measures promote’ (2014: 34). However, this space should also provide for an articulation of public opinion that may challenge, expand or more clearly define these norms and values. In this way, the media can be a forum that supports an official transitional justice framework that ‘opens the state and its foundations up to question rather than simply affirming them and acknowledges the contiguity between the harms of the past and those of the present’ (Balint, Evans and McMillan 2014: 212).

When an official democratic forum is missing, this seems to be when ‘media justice’ occurs as a parallel and competing paradigm that is ‘(re)defining what criminal justice is, and how it can and should be realized’ (Greer and McLaughlin 2012: 413). When media justice appears as a parallel forum in the public sphere it tells us that transitional justice is considered by some to be limited, deficient or inaccessible. It can help to (re)define, for example, the principle of diplomatic immunity or the restricted rules of evidence as unfair. Similarly, it has the potential to show us how legal processes should be realized in allowing justice advocates to name perpetrators, bear witness, be cross- examined and have a judgment. Furthermore, it (re)defines criminal justice to include wider questions about economic, political, cultural and social injustice. Media justice, then, can be seen as a flag that indicates transitional justice is not meeting the needs and expectations of advocates’ and, perhaps, wider civil society. As Chagnon and Chesney-Lind describe it, a ‘trial by media’ can act as ‘a discursive flashpoint upon which moral boundaries may be formed and reformed’ (2015: 2).

As one justice advocate Juan Mendez observed, the media ‘has done a very good job of showing the momentous nature of these [transitional justice] processes and the historic turn of events that seem to predict a whole new way of society seeing itself and the people in the country relating to each other from the future’ (Mendez Interview, October 23 2013). It appears the media has the potential to partner with these processes to provide an unofficial democratic forum in the public sphere where the idea of justice

194 can be discussed and debated, a collective memory can be formed in reckoning with the past and negotiations over how the future nation-state should be can take place. In this way, the media supports transitional justice mechanisms by bringing in the broader society and communicating public opinion to the state. However, the question remains about what role the media should play if there are no transitional justice processes such as criminal trials or a truth commission or if they are considered compromised, deficient or too limited to meet the needs and expectations of victims. The next section considers to what extent the media could be a formal participant in transitional justice given its own limitations.

8.3 The Media’s Role as an Accountability Mechanism

As my research indicated in Chapter 7, justice advocates appealed to the mainstream news media but found that, like law in many instances, it was a difficult institution to access. They were also highly aware of its limitations and differentiated between the news organizations that responded to justice claims and those that did not. I drew on these findings to develop a typology of these organizations into those that were complicit in state crimes, indifferent to state crimes or participants in pursuing justice for state crimes. These limitations raise the question of whether the media should be considered a formal participant in transitional justice processes. By formal, I mean an active and engaged participant in official responses to state harms. As the previous section argued, the media has the capacity to act as an unofficial democratic forum alongside political-legal mechanisms. However, as I began to argue in the previous section there is the potential for the media to undermine transitional justice processes. Furthermore, as Chapter 6 also shows, even when the media does respond to justice claims, advocates mostly view it as just a tool to put pressure on official political and legal institutions to act. It appears that the media may best be considered as an informal participant that plays a role in translating communicative action between victims, civil society, the state and international institutions. Therefore, in this section I argue the media’s role as an unofficial democratic forum for public deliberation in transitional justice should be conceived of more as an accountability mechanism that draws attention to the shortcomings of official responses and processes.

There is a risk in considering the media as a formal participant in transitional justice given its capacity to be complicit in perpetrating state crimes during and after conflict.

195 As this research indicates the media can be complicit in state crimes if it becomes too politicized. Justice advocates still regarded those organizations that did censor reporting of state crimes to be cowardly or self-interested, which suggests the media is still expected by some to operate as a democratic forum even under a repressive regime. Nevertheless, in these circumstances it is incredibly difficult for justice advocates to access the media and it is unlikely that justice claims will be reported. Indeed, injustice may be perpetuated because of misreporting on or deliberately ignoring state crimes. Therefore, it seems incongruous that the media that were complicit in state crimes could be considered to have the legitimacy and objectivity to be formal participants in transitional justice. Rather, as some scholars have argued, and this research affirms, there needs to be significant reform of the media in post-conflict societies to ensure the media does not repeat past harms before it can continue to participate in the public sphere (Price and Stremlau 2012; Laplante and Phenicie 2010; Longman 2014).

The media can also be complicit or indifferent when news outlets are driven by commercial self-interest. Even when the media do report on state crimes, it is perceived as cashing in on atrocities for the audience’s daily news consumption, which causes a sensation but does not lead to tangible justice outcomes for victims. However, commercialization is not always seen as an insurmountable barrier to accessing the media and having justice claims heard. My research also implies the news organizations that are ignorant of the atrocities are most likely to be indifferent to state crimes. These are media outlets that choose not to report on the injustice or give very little coverage to justice claims so therefore participate less in conflict and transitional justice processes. It appears that some of these organizations are unaware of the facts and this seems to be the case for international media that may not have direct access to news sources or eyewitness accounts. Or, that the media choose to ignore the conflict because it does not fit with their news values or agenda. I argue that justice advocates target their appeals for justice to indifferent media, as it is more likely to respond and act as an unofficial democratic forum than complicit media. However, there are still risks in considering indifferent media as formal participants in transitional justice. In recognizing both the opportunities and risks of the media, my research offers a more nuanced analysis that counters the previous polarized arguments about the media’s role in post-conflict societies (Schoemaker and Stremlau 2014). Rather, it contributes to a slowly emerging body of literature that investigates the more complex ways that the

196 media performs and participates in conflict (see for example Cottle 2006 and the extensive Global Crises and the Media series).

Greer and McLaughlin have argued how a market-driven trial by media can subvert legal processes (2011). If commercial interests are driving participation in transitional justice processes then this raises serious questions about how these interests shape media coverage. For example, will the media only report on particular justice claims that will result in more newspaper sales or higher television ratings and exclude those that do not? Can media conglomerations that have financially benefited from neo- liberal economic policies report fairly on claims of social justice? I argue that the media’s potential to profit from transitional justice means it should not be considered a formal participant in these processes as it is more likely to be compromised and not act in the best interests of justice advocates. There are also risks in considering the media, that may be more objective or independent yet have been ignorant of state crimes, as formal participants. As Laplante and Phenicie (2010) have argued, there is the danger that journalistic norms such as objectivity will undermine transitional justice goals such as reconciliation. This is because a neutral reporting of both sides of the conflict can be responsible for a divided collective memory of past harms rather than a consensus that state crimes occurred. So, for example, if previously indifferent international news organizations did formally participate in transitional justice processes they may continue to publicize divisive views that perpetuate conflict. The news value of balanced reporting means the media may also have to identify who was the ‘victim’ and who was the ‘perpetrator’, which is a particularly fraught proposition in post- conflict societies. Therefore, indifferent media should not be considered as formal participants in transitional justice either.

However, these risks aside, the main reason I argue that the mainstream news media should not be considered a formal participant in transitional justice is because it lacks the desired official responses that political-legal processes can deliver. As justice advocates highlighted, the media cannot replace the role of official trials, truth-telling bodies and political processes. For example, it does not have the capacity to officially and legally acknowledge harm, jail perpetrators or sign sovereign treaties. Rather, the media is mostly used as a tool to put pressure on the judiciary, state and international community to provide these kinds of responses to state crimes. Firstly, it can draw

197 attention to human rights violations, thus setting the agenda and creating a sense of urgency to address harm. Once the media has educated the public, it then has the capacity to be used as an advocacy tool to mobilize people into action such as signing petitions, raising money and lobbying politicians. This momentum may build to a point where justice advocates believe that the judiciary and politicians can be influenced to hear their justice claims or consider them favorably. In this way, we can see that when access to justice is limited the media is used as a tool to build up enough public support and momentum to open up legal and political spaces. Therefore, I argue the media can only be an informal participant in transitional justice processes to the extent that it can put pressure on legal and political institutions to officially respond. This is why, I conclude, that the media’s role as an unofficial democratic forum can be conceived of as an accountability mechanism within transitional justice.

The liberal media as an informal participant is better able to fulfill its role as a public watchdog as it remains separate from the state and acts as a check against excesses of power (Errington and Miragliotta 2011). In this role, its functions are to inform, investigate, analyze, create social empathy, act as a public forum and mobilize people to act (Schudson 2008: 12). In doing so, there are several ways in which the media can act as an accountability mechanism during a transitional justice project.

 Firstly, before official political-legal processes are established, it can investigate, analyze and expose state crimes and put pressure on the state and international bodies to hold perpetrators accountable.

 Secondly, once trials or truth-telling commissions begin, the media coverage of these processes helps to ensure the transparency and legitimacy of the proceedings by bringing them into the wider public sphere.

 Thirdly, if these processes are not meeting the needs and expectations of affected communities, then the media may be used to highlight any perceived shortcomings. It does so through its capacity to be an unofficial democratic forum in which justice claims that go beyond the scope of official processes may be voiced and heard.

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 Finally, the use of the media as an accountability mechanism is a symptom that indicates transitional justice is not meeting the needs of some victims and groups.

This notion of an accountability mechanism may also explain how the media can informally participate in transitional justice by helping to translate communicative action between people and the state. Habermas (1996) describes communicative action as the process through which citizens can exchange a wide range of viewpoints that eventually form into public opinion and collective will about the most important political issues that society faces. This communicative action occurs in the public sphere, which is an uninstitutionalized social space that is separate from the state. However, civil society, which Habermas views as more organized associations of people, can work to turn this communicative action into official political power. As he stated, ‘under certain circumstances civil society can acquire influence in the public sphere, have an effect on the parliamentary complex (and the courts) through its own public opinions and compel the political system to switch to the official circulation of power’ (1996: 373, original italics). This is opposed to the unofficial circulation of power in which the state dominates and sets the agenda in the public sphere. It is my contention that justice advocates use the media to try and get enough influence in the public sphere that can have such an effect on the state that it officially responds to justice claims.

In Habermas’ (1996) view, it is the law that is the primary vehicle of justice as it can transform communicative action into political power. In the context of transitional justice, the law does this through such mechanisms as criminal trials, truth-telling mechanisms, legislation and constitutional reform. However, whether these legal processes produce good outcomes or decisions is not of much concern to Habermas when considering whether justice has been done. Rather, he believed the legitimacy of these legal mechanisms comes from whether there has been societal consensus on the processes that led to these outcomes and decisions (Habermas 1996). This consensus on legal processes comes about after all affected participants have come together as a community of subjects where they have engaged in a rational discourse that allows for a variety of viewpoints. As my research suggests, some justice advocates agreed that

199 having access to a legitimate legal process was considered integral to justice. Habermas (1996) acknowledges that the public sphere has been diminished in modern pluralistic societies and through the commercialization of the media. Yet, the idea of communicative action being part of a transitional justice project is important if a grassroots approach is taken that considers the needs and expectations of affected communities. It is highly unlikely that all victims and civil society groups can agree on what justice means to them. However, creating a public space in which this can be discussed and debated in a rational discourse may offer some form of procedural justice. The media has the capacity to be an informal participant in helping to create this space and holding political power accountable to communicative action.

The case of Argentina is perhaps the best example from my research to examine how transforming communicative action into political power may look like empirically. Firstly, civil society’s demand for knowledge about the disappeared in very public protests became transformed into a quasi-legal truth-telling body. However, some justice advocates found this legal mechanism was too limited in that it focused too much on what happened to the disappeared rather than who was responsible. Additionally, the laws that implemented amnesties meant civil society groups continued to publicly campaign for criminal trials and punishment alongside their own legal cases. This arguably put more pressure on the state, which eventually overturned these laws in 2006. Finally, we are now seeing Argentinean civil society groups reframe past harms to advocate in the public sphere for social justice and equality now and into the future. This raises the question of what legal mechanism there is available to facilitate this communicative action. The transitional justice project aims to reckon with the past to move towards a reconciled, peaceful and just future. However, there is no official space in the public sphere where a community of subjects can express different viewpoints about what the future of that post-conflict society should look like. The next section discusses how transitional justice projects may need to consider providing an official space where public opinion may be formed about what justice means in the future.

8.4 Negotiating the Future: An Official Democratic Forum

This thesis has examined why justice advocates use the media and what this can tell us about the current limits of transitional justice. Through the conceptual lens of the public sphere my research has contributed to a wider perspective on justice processes that

200 recognizes the role of communication in harming or helping official transitional justice mechanisms. My contention is that justice advocates appeal to the media with the aim of getting public opinion to support their justice claims, having this communicative action transformed into political power and the state officially responding to human rights abuses. This transformation may occur through legal mechanisms, such as criminal trials or truth-telling bodies, however, the discussion in this chapter has raised questions about what sort of political-legal institution can provide a process for hearing and responding to the expanded demands on transitional justice such as social equality, cultural recognition and political reform. In this section I argue that it may be appropriate for communicative action on these expanded demands to be transformed into an official mechanism for considering these claims. More specifically, transitional justice projects may benefit from adding to the transitional justice framework an official democratic forum that can hear claims of political, cultural, economic and social injustice and provides an official space in which civil society and the state can negotiate ways to redress these.

In the context of transitional justice, Price and Stremlau have argued that the media can ‘serve as a space for elite negotiation or the negotiation of political power’ and that it ‘often serves as a forum representing elite notions of what the nation-state is or should be’ (2012: 1085-1093). These are important observations on how the media plays a role in post-conflict societies in terms of how elites negotiate the future of the nation-state. Excluded from this observation is that the media has the capacity to create a space where victims and civil society can also be part of the negotiation of political power and state-building. Indeed, my research has demonstrated how justice advocates attempt to access and become part of this political discourse through the media. I argue that more attention needs to be paid to securing these voices in setting the political agenda. As Robins (2010) and Garcia-Godos (2013) contend, victims and affected communities should help drive transitional justice processes and be political actors in making and contesting claims. The goal of including the attitudes and perceptions of grassroots actors is that the planning and implementation of transitional justice mechanisms will better meet community expectations and be less likely to inflame further conflict. Furthermore, securing the voices of victims and civil society groups in the negotiation of how a nation-state should be ensures the official circulation of power is restored and it is people, not the state, who sets the agenda in the public sphere. As

201 Habermas warned, ‘if the discourse of experts is not coupled with democratic opinion and will-formation, then the experts’ perception of problems will prevail at the citizens’ expense’ (1986: 351).

As the previous section highlighted, it is not enough for justice claims to be heard and responded to in the media. Rather, this communicative action regarding what a nation- state is or should be needs to be transformed into political power through a legal mechanism. Yet, it appears unlikely that trials or truth commissions are the best models for this kind of official response. The scope and purpose of trials in transitional justice is to hold individual perpetrators to account for crimes they have committed in the name of the state. This limited focus makes it difficult to get a full account of the extent and responsibility to which the cultural and structural conditions of institutions contributed to mass harm (Balint 2014). Therefore, trials do not offer much space for claims about political, economic, social and cultural injustice at an institutional level. Truth-telling mechanisms, on the other hand, are more conducive to investigating the structural causes for human rights violations on a broader level. However, these mechanisms can still be limited in terms of the kinds of truth they are trying to establish. For example, the Argentinean commission was more focused on the disappeared rather than the perpetrators. In the case of Australia, the inquiry into the Stolen Generations did not consider other harms apart from child removal policies. The Sri Lankan Lessons Learned and Reconciliation commission failed to address issues of Tamil self- determination. Therefore, trials and truth commissions are not able to let all affected communities express their various viewpoints about institutional responsibility for political, economic, cultural and social injustice. Even more limited is the space in trials and tribunals for negotiating what a just future looks like. As Kent has noted, transitional justice processes are more dynamic and open-ended than previously thought (2012). This poses a challenge for designing and implementing mechanisms that can adapt and remain open to public opinion.

Szoke-Burke (2015) has argued that mechanisms such as truth commissions, reparations schemes and, in some cases, criminal trials can address violations of economic and social rights. As my research also found, justice advocates believe that law can shift according to public opinion. Thus, such mechanisms are seen as having the capacity to recognize and redress these expanded demands of transitional justice.

202 However, my research has shown that even though trials and truth commissions had taken place in each case study, some justice advocates did not feel their social, political and cultural claims were heard and responded to by these forums. Moreover, Szoke- Burke (2015) has concluded that a separate body to investigate socio-economic rights is problematic in that it can exclude civil and political rights, is resource-intensive and has the potential to bring more complexity and conflict to the transition process. Therefore, although the idea has merit, any separate legal mechanism that considers the expanded demands of transitional justice should be considered cautiously. Therefore, this thesis argues for a more discursive, consultative and bottom-up approach that envisages a non-legal yet official democratic forum in which a just future can be discussed and debated in a reinvigorated public sphere.

The reconciliation framework may be useful to draw on here as it promises a forward- looking point at which the post-conflict society becomes a unified society. In a previous study of reconciliation and political discourse in Australia, I found that the meaning of reconciliation was constantly evolving to represent new legal measures for addressing past and ongoing harms (2015). Importantly, the political agenda on progressing the concept of reconciliation to mean a just future was a collective negotiation between political elites, civil society in the form of Indigenous activist groups and public opinion (Rae 2015). Reconciliation, as an open-ended and dynamic conceptual framework, rather than a finite event such as a trial or truth commission, has the potential to extend the negotiation of a political agenda beyond a particular event. My research showed how within the discourse of reconciliation the meaning of justice shifted from land rights to a government apology to reparations (2015). In this way, a reconciliation framework is incrementally providing a space for negotiating the future that can adapt and change according to public opinion or political will. However, as this thesis has affirmed, some justice advocates understand reconciliation as a meaningless concept that is often manipulated by the state as a vehicle to forget past injustice. It showed how affected communities could remain resistant to the concept of reconciliation given its appropriation by political elites to foreclose certain justice claims such as self- determination. Thus, we see can see from this study that it is only under certain circumstances, as Habermas has argued, that civil society can have an impact on political power in terms of setting the political agenda in regards to what they understand reconciliation to mean.

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What may be more useful from this discussion is that a forward-looking discursive framework may be considered an official democratic forum for negotiating the future in post-conflict societies. This is not to suggest that a one-size-fits-all framework, such as reconciliation, should be automatically applied to all transitional justice projects. Rather, such projects should be alert to when justice advocates engage with the media, as it is a symptom that certain justice claims are not being officially heard and responded to in those particular circumstances. If public opinion appears to support these appeals in the media, then there should be consideration of providing an official democratic forum for these claims to be discussed, debated and negotiated. For example, under the discursive framework and forum ‘Recognise’, the Australian public sphere is negotiating what a constitutional amendment that redresses Aboriginal exclusion and discrimination might look like. This campaign has been criticized as a ‘top-down’ framework that forecloses other meanings of justice such as treaties (Liddle 2014; McGuire 2016). In the local jurisdiction of Victoria, this backlash of public opinion against the ‘Recognise’ campaign has resulted in the government creating an official democratic forum to discuss sovereignty and Australia’s first treaty (Gordon and Hunter 2016). What this demonstrates is how a discursive framework such as reconciliation or constitutional recognition can operate as a democratic forum for the public to negotiate what a just future looks like. This space has the potential to be fertile ground for the transformation of communicative action into political power through legal and quasi-legal mechanisms. Although an official democratic forum may begin as a top-down mechanism, there is the potential for it to be challenged and negotiated by those ‘from below’.

In calling for a discursive response that does not require the law, this thesis is suggesting we do go ‘beyond legalism’ in considering ways to provide a public space where citizens can make claims (McEvoy 2007). This is particularly pertinent when the limits of law do not allow certain claims to be heard at particular times and places. However, it does not eschew the law in the recognition that it remains a legitimate process for accountability and truth-telling for justice advocates. Rather, it suggests that transitional justice considers what comes ‘before legalism’ or ‘between legalism’ in the debates and discussions that a post-conflict society has about what a just future looks like. There has been a dominant focus on whether transitional justice can or has

204 achieved its objectives in various contexts. But this thesis is a timely reminder that transitional justice is also about process and not necessarily the outcomes (Mendez 1997). In providing an official democratic forum, transitional justice can provide a more deliberative process for public opinion to be formed about how society wants the state to respond to human rights violations.

Overall, this thesis has argued that transitional justice projects should be alert to when justice advocates use the media alongside law. The use of the media as a parallel and intersecting justice forum is a signal that official political-legal mechanisms are not meeting the needs and expectations of some individuals and groups in affected communities. As these three case studies show, the media’s use as an unofficial democratic forum indicates that transitional justice mechanisms are particularly limited at responding to the expanded claims of political, social, cultural and economic harm. If public opinion supports these claims, I argue there should be consideration to widening the scope of transitional justice to include an official mechanism that facilitates negotiation of what a just future looks like in a post-conflict society. Such a forum provides a space for citizens to participate in discussing, debating and negotiating the future. This space of public deliberation could be an official platform for justice advocates to make claims and be heard. Subsequently, transitional justice projects may facilitate a more deliberative process for public opinion to be formed about how society wants the state to respond to human rights violations. Transitional justice is an opportunity to reinvigorate the public sphere in which the elites, civil society and victims can communicate their views, beliefs and experiences of injustice and justice.

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Interviews

Abeywardane, Bashana, Interview recorded on October 9, 2013.

Anderson, Michael, Interview recorded on July 23, 2014.

207

Beydoun, Ali, Interview recorded on October 17, 2013.

Chillier, Gaston, Interview recorded on October 30, 2013.

Gilbert, Eleanor, Interview recorded on July 23, 2014.

Haigh, Bruce, Interview recorded on July 12, 2014.

Jananayagam, Jan, Interview recorded on October 5, 2013.

Jegan, Brami, Interview recorded on July 26, 2014.

Kumar, Ravi, Interview recorded on October 12, 2013.

Manohanran, Kasipillai, Interview recorded on October 11, 2013.

Manoranjan, Tasha, Interview recorded on October 23, 2013.

Mendez, Juan, Interview recorded on October 24, 2013.

Muthuthamby, Sreetharan, Interview recorded on October 16, 2013.

Nirmalan, Kana, Interview recorded on October 12, 2013.

Pari, Sam, Interview recorded on October 8, 2013.

Pullin, Lara, Interview recorded on June 23, 2014

Romero, Luis, Interview recorded on November 2, 2013.

Stary, Rob, Interview recorded on November 19, 2013.

Thorpe, Robbie, Interview recorded on August 4, 2014.

Tissainayagam, Jayaprakash Sittampalam, Interview recorded on October 21, 2013.

Veiga, Clarisa, Interview recorded on November 2, 2013.

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Minerva Access is the Institutional Repository of The University of Melbourne

Author/s: Rae, Maria Mejer

Title: Negotiating the future: the role of the media in transitional justice

Date: 2016

Persistent Link: http://hdl.handle.net/11343/167258

File Description: Negotiating the Future: The Role of the Media in Transitional Justice

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