Transitional Justice in the Aftermath of the Sri Lankan Civil War

Home , British Ceylon, Dutch Burghers, Jagath Jayasuriya, Sri Lankan Civil War, Vidattaltivu

Ishwari Gupta

Submitted in Partial Fulfillment of the Prerequisite for Honors in Political Science under the advisement of Christopher Candland

May 2021

Acknowledgements

To have written a senior honors thesis amid a global pandemic would not have been possible without the love and support of many individuals. I'm greatly indebted to the following people, many of whom took the time out of their already hectic schedules to help support me during this process.

First and foremost, I’m grateful to my thesis advisor, Professor Christopher Candland. His guidance and encouragement throughout my time at Wellesley has had an indelible impact on how I view international relations and politics, particularly of the South Asian subcontinent. From his feedback on my papers in office hours to his advice dispensed during our weekly Zoom meetings on my thesis chapter drafts, he has always empowered me to be a better student and, more importantly, a compassionate human being.

I am also grateful to the additional members of my thesis committee, Professor Catia Confortini, Professor Nikhil Rao, and Professor Maneesh Arora. Professor Catia, thank you so much for providing such helpful feedback, particularly for the transitional justice-specific portions of this thesis. Your continued suggestions and encouragement made this thesis a stronger one. Professor Rao, your classes have inspired me to pursue my studies of the subcontinent further with this thesis. I appreciate the time and support you have given me to talk about my ideas and look over chapter drafts. Professor Arora, thank you so much for supporting me throughout my last two years at Wellesley – your perspectives on American politics have shaped how I view democracy and electoral politics in the United States, South Asia, and beyond.

Kavindya Thennakoon and Sunthar Premakumar, thank you for connecting me with your contacts in Sri Lanka working in human rights advocacy and civil society, or those simply willing to talk with me about their experiences. I would also like to express my gratitude to those I interviewed; I refrain from naming them throughout this thesis to protect their privacy. Your candid and insightful perspectives on transitional justice in Sri Lanka furthered my understandings of conflict resolution in postcolonial and multiethnic societies and shed light on important issues that I tried to tackle in this thesis. You all have my utmost respect for the incredible work that you all do in your respective communities.

I would be remiss not to thank Michael Kugelman for his mentorship during the latter stages of the thesis process. Observing and contributing to your work in the field has made me a better researcher, writer, and critical thinker for this thesis, making my internship experience with the Wilson Center all the more rewarding.

I was also fortunate to have a large community of friends at Wellesley who provided crucial solidarity and support during this thesis process:

Sanjana Kothary, thank you for always giving me a space to bounce off ideas, vent my academic and personal frustrations, and for inspiring me with your intellectual curiosity and vast knowledge of the subcontinent. 3

Tara Kuruvila, I’ve been so lucky to have you across the hall from me this past year. Thank you so much for being there for me whenever I needed a shoulder to laugh or cry on and being a lovely companion to go on Starbucks runs, “work” in the Freeman 2nd floor Common Room, and watch British panel shows.

Aisha Saldanha and Shruti Samala, I was so fortunate to have both of you completing your theses alongside me for the majority of the second semester. Both of you have a dedication to your respective disciplines that I am in awe of; I look forward to reading your theses after the semester’s end!

Emily Cheng, Katherine Chan, and the rest of the Freeman 2nd floor community: thank you for the love and friendship that have given me numerous moments of respite during this semester. I love you all!

Samara Shaz and Sophie Dowdy, I am grateful for our shared commiseration in pursuing honors in the Political Science Department. Samara, I was especially supported by our weekly thesis writing sessions, and I’m so glad to have made a new friend during this process!

To the Wellesley Association for South Asian Cultures (past and present members), thank you so much for providing a space for me to explore and celebrate my South Asian identity, both personally and regarding my academic work.

And finally, Eric Lee, thank you for sparking the initial idea for this thesis and putting up with me long enough to oversee the whole thing completed to fruition.

My family was also invaluable in making this thesis possible:

Amma and Baba, without you both, this thesis would not exist. You two have championed my passion for history and politics from an early age and have enabled me to get to where I am today. Thank you for being my biggest supporters and confidantes throughout this whole process. I love you both so much.

Gaya, thank you for being there for me whenever I needed; you’re the best little sister a girl could ask for!

Deepa Ollapally, thank you for inspiring me as both my aunt and a brilliant scholar on South Asian security issues. I have benefited immensely from our conversations on U.S. foreign policy, the subcontinent's politics, and life at large, and I look forward to many more in the future.

Christopher and Shalini Arumainayagam, thank you for treating me like a daughter of your own throughout my time as an undergraduate. I will forever be thankful to your family for helping me acclimate to Wellesley and will especially miss your homecooked meals in the future.

And finally, this thesis is dedicated to all those affected by the Sri Lankan civil war. While no transitional justice measure can bring back those who lost their lives, I hope that this thesis 4 highlights the importance of delving deeper into what accountability, reconciliation, truth, justice, and democratization mean for different populations after the conflict.

Note: the arguments expressed by this thesis do not represent the views or perspectives of the aforementioned individuals.

Content Note

This thesis references the following topics: potentially graphic descriptions of violence, sexual abuse, extreme cruelty, hateful language against religious and ethnic groups, murder, terrorism, blood, and death.

I want to acknowledge that many of the victims of the civil war, especially those who were ordinary civilians, never had the choice to opt out of any of the above.

Abstract

This thesis seeks to answer the question, “Under what conditions would transitional justice mechanisms be used to address the grievances of the Sri Lankan civil war?” In analyzing literature produced by academia, prominent human rights advocates, and global governance organizations, I interrogate common frameworks of transitional justice, which view the practice as having multiple, mutually reinforcing goals, such as the pursuit of accountability, truth and reparation, the preservation of peace, and the building of democracy and the rule of law. Based on interviews with Sri Lankan civil society actors with experience on the ground, I argue that Sri Lanka’s current domestic and geopolitical realities renders this ideal of transitional justice difficult but not impossible to achieve. The present political structures of Sri Lanka, shaped and informed by colonial rule, have fostered a majoritarian consciousness among the Sinhalese Buddhist population. Thus, the goals of transitional justice – assumed to be widely accepted as legitimate and neutral by international law – are viewed on ethnic lines: pursuing accountability and truth is perceived as synonymous with implicating the Sinhalese as a collective. Furthermore, as Sri Lanka’s foreign policy alignment has historically had implications for transitional justice initiatives, the current administration’s embrace of Sinhala Buddhist nationalism has strengthened its economic and political ties with China, decreasing the government’s political incentive to engage in transitional justice further. These realities hamper achieving meaningful steps toward dealing with the war’s aftermath, such as restoring the economic livelihoods and political rights of marginalized populations and attaining a truly substantive democracy.

Table of Contents

Map of Sri Lanka………………………………………………………………………………….8

Introduction………………………………………………………………………………………..9

Chapter 1 – The Sri Lankan Civil War: Its Origins, Its Grievances……………………………..16

Chapter 2 – Transitional Justice: An Overview Of Its Dilemmas……………………………….48

Chapter 3 – Past Case Studies and Contemporary Factors for Transitional Justice……………..81

Figures (Chapter 3) …………………………………………………………………………….123

Conclusion……………………………………………………………………………………...125

Bibliography……………………………………………………………………………………133

Map of Sri Lanka1

1 Cai, Weiyi, K. K. Rebecca Lai, and Anjali Singhvi. 2019. “Easter Sunday Attacks Add a New Dimension to Sri Lanka’s Sectarian Tensions.” The New York Times, April 23, 2019, sec. World. https://www.nytimes.com/interactive/2019/04/23/world/asia/sri-lanka-isis-religious-ethnic-tensions- map.html.

Introduction

“They started beating Thiyagarajah. They took his T-shirt off and stuffed it into his mouth. The neighbors came out to help, but they pushed them away. His wife was crying and shouting, and they hit her with a gun butt. She was nine months pregnant. They were accusing Thiyagarajah of having bombs in the house, and forced him to dig the ground around the house. They searched the house, turning everything upside down, but didn’t find anything. They beat him so badly that he couldn’t walk—they had to carry him away. They took him away on a motorcycle.”

– Relative of 25-year-old Thiyagarajah Saran describing his abduction by the Sri Lankan military on February 20, 2007 to Human Rights Watch. Thiyagarajah Saran’s whereabouts are still unknown.

“I must say very clearly there is no allegations regarding ‘war crimes’, there were war crimes allegations during the early stages. But at the United Nations Human Rights Council in Geneva, mainly in the proposals presented in September, there were no ‘war crimes’ allegations against us.”

– Former President Maithripala Sirisena commenting on a report from the United Nations Office of the High Commissioner for Human Rights on Sri Lanka’s alleged human rights violations during the civil war to Al Jazeera in January 2016.

Overview

Colloquially termed “the pearl of the Indian Ocean,” Sri Lanka is an island nation known for its rich biodiversity, spice and tea production, and off-and-on cricket success. In policy circles from New Delhi to Washington D.C., Sri Lanka has become one of the many smaller countries of the South Asian subcontinent that demonstrate the severe economic and political implications of China’s Belt and Road Initiative2. However, one cannot begin to understand Sri

Lanka’s current trajectory without discussing its decades-long civil war, which only concluded less than twenty years ago in 2009. Conventional narratives describe an ethnic conflict created

2 According to the Council on Foreign Relations, China’s Belt and Road Initiative (BRI) is a vast collection of development and investment initiatives that stretch from East Asia to Europe. In recent years, the Sri Lankan government has pursued several projects with loans from Chinese state-owned companies, prompting India and the West to grow concerned over rising Chinese economic and political influence in a country with a strategic geopolitical location in the Indian Ocean. The fourth chapter of this thesis will explore this topic further.

by tensions between the minority Tamil and majority Sinhalese communities, culminating in

armed warfare between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan

government. The defeat of the LTTE, an insurgent group that agitated for a separate Tamil state

on the island, marked the conclusion of a war that produced hundreds of thousands of deaths,

refugees, and internally displaced peoples and innumerable human rights abuses. However, since

the conflict’s end, few attempts have been made to redress the aforementioned atrocities; the past

efforts that have been made in this realm have been largely unsuccessful.

One method of reckoning with the aftermath of war and conflict is transitional justice.

Transitional justice commonly refers to the set of mechanisms used to respond to systematic

human rights abuses to move toward better political outcomes and prevent the recurrence of

violence. Examples of transitional justice include war crimes tribunals, truth and reconciliation

commissions, reparations, and institutional reforms, among other mechanisms. While most often

studied in a political or legal context, transitional justice is an interdisciplinary field that also

incorporates psychology, anthropology, history, and development studies. As transitional justice

has been employed in numerous countries after a multitude of different conflicts, I wanted to

investigate how transitional justice would be implemented in the Sri Lankan context. Therefore,

this thesis seeks to answer the question, “Under what conditions would transitional justice

mechanisms be used to address the grievances of the Sri Lankan civil war?”

In subsequent chapters, I interrogate common frameworks of transitional justice, which

view the practice as having multiple, mutually reinforcing goals, such as the pursuit of

accountability, truth and reparation, the preservation of peace, and the building of democracy and

the rule of law.3 I argue that Sri Lanka’s current domestic and geopolitical realities renders this

3 “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” 2004. S/2004/616. Geneva: United Nations Security Council 11 ideal of transitional justice difficult but not entirely impossible to achieve. The present political structures of Sri Lanka, shaped and informed by colonial rule, have fostered a majoritarian consciousness among the Sinhalese Buddhist population. Thus, the goals of transitional justice – assumed to be widely accepted as legitimate and neutral by international law – are viewed on ethnic lines: pursuing accountability and truth is perceived as synonymous with implicating the

Sinhalese as a collective. Furthermore, as Sri Lanka’s foreign policy alignment has historically had implications for transitional justice initiatives, the current administration’s embrace of

Sinhala Buddhist nationalism has strengthened its economic and political ties with China, decreasing the government’s political incentive to engage in transitional justice further. These realities hamper achieving meaningful steps toward dealing with the war’s aftermath, such as restoring the economic livelihoods and political rights of marginalized populations and attaining a truly substantive democracy.

Personal Significance

The impetus for writing this thesis comes from my long-standing interest in learning more about my family’s history, especially within the context of the broader sociopolitical and historical developments of South Asia throughout the past decades. My great-grandfather,

Chellappah Suntharalingam, was born in colonial Ceylon and became a parliamentarian for the northern district of Vavuniya in the newly independent country. As an MP, C. Suntharalingam was one of the first to advocate for a separate homeland for Tamils on the island, or Eelam.

Decades later, his children and grandchildren, including my mother, who was then fourteen years old, fled Sri Lanka to the United States after the “Black July” riots systematically targeted

Tamils in 1983. In investigating my immigration story as a young South Asian-American, I was intrigued to find that my maternal family’s reasons for arriving in the United States were 12 different from other South Asian immigrants in the California Bay Area, where I grew up. Most other South Asian families, predominantly from India, did not immigrate to the Silicon Valley due to war and ethnic persecution. Nonetheless, I grew to find that these phenomena had occurred in other parts of South Asia at different points in time. From New Delhi to Lahore and

Dhaka to Colombo, communal violence and ethnic strife have shaped the subcontinent's history and remain salient in the present. My interest in these subjects has blossomed at Wellesley, where I have been fortunate enough to take classes on related issues, such as the colonial policies which foregrounded ethnic identities and the current peace and security implications of ethnic tensions. Thus, this thesis is a culmination of my personal background and academic endeavors, as well as a reflection of my desire to pursue these categories of knowledge further.

Methodology

To understand what transitional justice entails, I examined literature produced by academia, prominent human rights advocates, and global governance organizations on the subject. The latter two sources shed light on how practitioners commonly conceptualize and apply transitional justice after conflict, while academic scholarship was unsurprisingly more critical of the practice. I then compared what I found in the literature to previous implementations of transitional justice throughout history, noting when ground realities clashed with theoretical frameworks. These findings formed the backbone of this thesis, grounding my arguments concerning transitional justice in Sri Lanka.

Under normal circumstances, I would have conducted field research in Sri Lanka, traveling across the island to interview members of all the different ethnoreligious communities to capture the various perspectives people have about the transitional justice process. Due to the ongoing COVID-19 global pandemic, I tried to simulate that experience virtually. Sri Lankan 13 friends and family members connected me to human rights advocates, civil society members, and ordinary citizens on the ground, who I proceeded to interview on Zoom or WhatsApp. I also spoke to transitional justice experts based outside Sri Lanka who had experience with the Sri

Lankan civil war. In our discussions, I probed their thoughts on how the country has dealt with the civil war’s aftermath and what problems remain to be solved. I recorded some of these conversations with the interviewee’s permission, taking note of some of the common themes that

I heard. These interviews informed how I should view transitional justice in the Sri Lankan context: expanding on areas in the transitional justice literature that needed more attention and highlighting problems with the transitional justice framework that are often overlooked. In addition to these conversations, I also monitored Twitter to see what Sri Lankan scholars and activists discussed on transitional justice-related issues. Their online discourse shed light on current developments in Sri Lanka that merit the attention of a future transitional justice mechanism in the country, especially the government’s policies that hinder the freedoms of Sri

Lankan Muslims developed after the 2019 Easter Sunday attacks. Despite unusual circumstances that prohibited international travel, I was able to accomplish research due to the technological tools I had at my disposal.

Primarily connecting with Sri Lankans and their perspectives using online means imposed several limitations on what information I could gather. My sample size was constrained by who had access to technology and whether they could speak at hours that worked for Eastern

Standard Time. Moreover, many of the individuals I spoke to in Sri Lanka resided in Colombo, spoke fluent English, had at least a university education, with many having additional work and academic experience abroad. As Frantz Fanon observed in The Wretched of the Earth, the native elite of a colonized society come to mimic colonizer's values, namely traditionally Western 14

principles. Even in postcolonial Sri Lanka, there has been a history of disconnect between the

English-educated intelligentsia and the rest of the country, notably Indian Tamils living in the

central highlands, rural Sinhalese from the south, and Tamils in the north and east. While I

attempted to uncover how transitional justice efforts affected these communities by asking my

interviewees about their work on the ground, I remained unsatisfied with the information I could

collect at times. When conditions permit, I hope to continue this work by interacting face-to-face

with some of the populations I discuss in later portions of this thesis.

I also examined the reports of international human rights organizations, such as Human

Rights Watch, Amnesty International, and the United Nations, to determine what conditions

would facilitate the implementation of transitional justice mechanisms in Sri Lanka. Throughout

this thesis, particularly in the first and third chapters, I reference accounts and analyses compiled

by these organizations during and after the war. These reports often held the Sri Lankan

government, LTTE, and other actors accountable to international law. While this helped establish

what constituted "grievances" during the civil war, one should also be critical of the normative

standards international law, constructed predominantly by former colonial powers, imposes on

countries still reeling from imperial rule. As Khanyisela Moyo notices:

"In the plentitude of treatises on transitional justice, oddly limited assiduity has been put to the issue of the imperial origins and bias of international law and how this might be a major contributor to postcolonial societies' failure to meet the goals of their transitional justice endeavors."4

Later portions of this thesis will acknowledge and address the postcolonial critiques of

transitional justice and international law, which allege that neither framework adequately deals

with legacies of colonialism. However, in place of firsthand interview material from those most

4 Moyo, Khanyisela. 2012. “Feminism, Postcolonial Legal Theory, and Transitional Justice: A Critique of Current Trends.” International Human Rights Law Review 1: 238.

15 affected by the war, these reports contained testimonies and eyewitness accounts that particularly influenced the first chapter’s discussion of the war’s grievances. Therefore, while I am critical of these sources, I believe these reports contain strong evidence for the need to study, analyze, and address the Sri Lankan civil war further.

Outline of Chapters

The first chapter provides a background on the Sri Lankan civil war, with an extensive overview of the colonial history that shaped communal identities and majoritarian politics crucial to understanding its structural origins. The latter portion of the chapter outlines the war’s

“grievances,” such as enforced disappearances, extrajudicial killings, the forced recruitment of child soldiers, and intentional civilian attacks. The second chapter functions as a literature review of transitional justice, defining and historicizing the concept before expanding on the tensions between various transitional justice aims. The last chapter then examines the implementation of transitional justice in Sri Lanka, focusing on past failed iterations of transitional justice before subsequently speculating on the current conditions that render transitional justice difficult in the present. Finally, the conclusion proposes some policies to address the legacies of the civil war and present political realities that go beyond the standard transitional justice framework.

Chapter 1 – The Sri Lankan Civil War: Its Origins, Its Grievances

The Sri Lankan civil war lasted nearly three decades, beginning in 1983 and ending in

2009. Fought mainly between the Sinhalese-dominated Sri Lankan government and the

Liberation Tigers of Tamil Eelam, the war had immense consequences for the island nation: it claimed hundreds of thousands of lives, produced thousands of refugees, and rendered thousands of more internally displaced. While most historical accounts of the war center on the seemingly irreconcilable tensions between the Sinhalese majority and Tamil minority populations, many narratives overlook the conflict’s roots in British imperialism. This chapter will elucidate the structural causes of the conflict originating from colonial rule, provide a history of the war itself, and outline the grievances – or human rights abuses that need to be addressed – that plague the war’s aftermath.

Colonial Constructions of Ethnic Identities in Sri Lanka

Precolonial Identities

Although the exact origins of the Sinhalese and Tamils on the island are somewhat ambiguous, most conventional accounts state that the two communities came from different parts of the Indian subcontinent. The first Sinhalese arrived from northern India in the 5th or 6th century BCE, speaking Indo-Aryan languages that eventually developed into Sinhala. Though there is consensus that the Tamils came from southern India in subsequent centuries, the timing and circumstances of their arrival are contested. Some accounts characterize the Tamils as invaders and traders from the Chola Kingdom, while others suggest that Tamils immigrated and formed societies with their own governmental systems. By the early sixteenth century, Muslim traders who spoke Tamil and had ongoing links with the Muslims of the South Indian coast had been given royal permission by the local Sinhalese kings of Kotte to collect customs duties and 17

regulate shipping in the major southwestern port settlements.5 These traders and their

descendants eventually became known as “Moors” – a separate ethnoreligious community on the

island – during the colonial period. Nonetheless, any tensions between the various communities

in the pre-colonial era stemmed from power disputes rather than ethnic incompatibility, as

modern notions of ethnic difference did not exist in Sri Lanka until British rule.

According to John D. Rogers, there were “multiple and partial ways of conceptualizing

social difference” in pre-colonial Sri Lanka. In analyzing the social and political dynamics of the

Kandyan Kingdom, he states that:

“The key to understanding Sinhala-ness in the eighteenth century is that even when the political and cultural notions coincided, they did not imply a notion of community analogous to the early modern European notion of race or nationality. An individual might be culturally Sinhalese, politically Sinhalese, or both; but there was no special significance attached to the same individual holding both types of Sinhala-ness.”6

He demonstrates his argument with the case of the Nayakkar – royalty of South Indian-origin

who had cemented their status through intermarriage with the island’s existing monarchs in the

seventeenth century. Considered Sinhalese kings, the Nayakkar practiced Hinduism and their

high officials spoke both Tamil and Sinhala. Additionally, Rogers also explains that the main

form of social difference in eighteenth-century Kandy revolved around hereditary status groups

that were associated with particular occupations, which he terms as “castes.” Therefore, he

states:

“The Radala noble and the Hena (washer) villager might share both cultural and political Sinhala-ness, to the extent that both might speak Sinhala and be Kandyan subjects, but this did not imply that they had social bonds that made them like types of people, or part of a fraternal community.”7

5 McGilvray, Dennis B., and Mirak Raheem. 2007. “Perspectives on the Sri Lankan Conflict.” 41. Washington D.C.: East-West Center. 6 Rogers, John D. 2004. “Early British Rule and Social Classification in Lanka.” Modern Asian Studies 38 (3): 629. 7 Rogers 2004, 630. 18

K.M. de Silva also asserts the importance of caste as a basis of social stratification in pre-

colonial Sinhalese society. Most familiar with caste in South Asia recognize the institution in its

Hindu form, with certain castes and jatis revolving around the concepts of religious purity and

pollution. However, de Silva notes that castes in Sinhalese society did not resemble the Indian

system of castes and sub-castes; since there was no religious sanction for caste, hereditary status

was the determinant of one's role and function.8 While the European powers, who began to

occupy Sri Lanka in the sixteenth century, respected this system initially, later colonial policies

conceptualized the main divides amongst the Sri Lankan population to be on ethnic and religious

grounds.

Portuguese and Dutch Constructions of Identity

Sri Lanka endured three waves of colonization between the sixteenth and twentieth

centuries: first from the Portuguese (1505 – 1658), then from the Dutch (1658 – 1796), and

finally under the British (1796 – 1948). The Portuguese and Dutch did not significantly alter

much of the indigenous administrative system and utilized the caste-like divisions of society that

were already in place. Although the Dutch held the social and political assumptions of early

modern Europe, believing the division between Sinhalese and Tamils to be a natural way to think

about the island's population, this had little relevance for the Dutch day-to-day administration of

their colony. However, the Moors posed an exception to this norm, as they were viewed as

hostile economic competitors by both the Portuguese and the Dutch. Consequently, both colonial

administrations adopted separate policies and codes of law for the Moors that “tended to

8 Silva, K. M. de. 1977. “Historical Survey.” In Sri Lanka: A Survey, Edited by K.M de Silva, 36. C. Hurst & Co. 19

emphasize rather than blur their identity as a distinct social group,” according to Vijaya

Samaraweera.9

Many of the Portuguese and Dutch had offspring with local women, forming a separate

ethnic group with mixed racial heritage known as the Burghers. Over time, a distinction between

the Portuguese Burghers and Dutch Burghers emerged, with the former group considered more

socially inferior due to the social unacceptability of interracial liaisons to both European and

local Sri Lankan societies. The Dutch Burghers maintained they were the product of “pure”

marriages between the Europeans and natives while their Portuguese counterparts were

considered poorer, darker, more numerous, and less European.1011 Early colonial rule also

brought the growth of Christianity on the island, with the arrival of missionaries who came to Sri

Lanka following their respective flags.12 Portuguese Roman Catholic missionaries were

particularly successful, using material rewards and attacking Buddhism and Hinduism, which

had lost state patronage, to gain converts. While the Dutch introduced Protestant Christianity

during their rule, their missionary activity was more restrained and less successful than that of

the Portuguese. Dutch and Portuguese colonial rule indelibly changed the social fabric of Sri

Lanka and set the stage for considerable societal transformation under the British.

British Constructions of Ethnic Identity

The British constructed their own understandings of social difference in Sri Lanka, or

British Ceylon, to administer the colony on their terms. As was done in their other colonies, the

9 Samaraweera, Vijaya. 1977. “The Evolution of a Plural Society.” In Sri Lanka: A Survey, Edited by K.M. Silva, 90. C. Hurst & Co. 10 Samaraweera, 89. 11 McGilvray, Dennis B. 1982. “Dutch Burghers and Portuguese Mechanics: Eurasian Ethnicity in Sri Lanka.” Comparative Studies in Society and History 24 (2): 235–63. 12 Samaraweera, 88. 20

British sought to classify and order the peoples they governed to better rule over them. Thus,

ethnic categories in Sri Lanka were not constructed systematically but emerged from a series of

administrative and legal decisions, shaped by written accounts from British colonial officials.13

The authors based their accounts on information gathered during their work on the ground in Sri

Lanka, but they prioritized easily recognizable and clear-cut categories over detailing the

existing cleavages in Sri Lankan society. Hence, British accounts of Ceylonese society captured

some realities of social difference among the island’s population while reflecting their

preconceived perceptions of how groups within the broader population should be understood and

categorized.

Robert Percival, a British military officer, published a book in 1803 that distinguished

between the Sinhalese as “the proper natives of the island” and the Vedas, the “savages who

lived in the jungle.”14 He further divided the Sinhalese, or the “native Ceylonese” into two

groups: the “Cinglese,” who lived in the maritime provinces, and the “Candians,” who lived in

the center of the island and were “people of different appearance and customs from those on the

sea coast.”15 In Jaffna, located on the north of the island, Percival described the Tamils as “a race

of Malabars…somewhat differing in their appearance from those on the continent” and added

that the largest group was of “Moorish extraction.”16 Experienced civil servant, Antony

Bertolacci, conceived of four groups that could categorize all Sri Lankan inhabitants. The

Sinhalese were the “Ceylonese proper,” occupying the Kandyan Kingdom and the coastal areas

from Chilaw to Hambantota, and the Tamils were the “Malabars or Hindoos…of the same stock

13 Rogers, John D. 1993. “Chapter 5: Colonial Perceptions of Ethnicity and Culture in Early Nineteenth-Century Sri Lanka.” In Society and Ideology: Essays in South Asian History. Oxford University Press, 98. 14 Rogers 1993, 99. 15 Ibid. 16 Ibid, 100. 21

of Malabars of Southern India” from Jaffna and the northern and eastern coasts.17 He categorized

the Moors as a separate group entirely and labeled the indigenous people of the island as Vedas.

Consequently, Sri Lankans found themselves fixed as members of a particular group – through

religion, race, and geographic location, which informed what ethnicity they were part of – in the

eyes of the British, who neglected the existing nuances of Sri Lankan society.

The British further perpetuated the notion that different ethnicities on the island were

fixed entities by assigning each group inherent characteristics, previewing their official treatment

of Sri Lankans less as individuals and more as members of these groups.18 James Cordiner, a

Scottish clergyman who also served as principal of all the schools of British Ceylon, depicted the

Sinhalese as “indigent, harmless, indolent, and unwarlike, remarkable for equanimity, mildness,

bashfulness, and timidity”19 in his book published in 1807. In contrast, he described the Tamils

as “stouter, more active, and enterprising, but less innocent, and more fraudulent.”20 By the

1830s, the British constructed a historical framework that attributed Ceylon’s past fortunes to the

rise of Sinhalese civilization, which established the Sinhalese as the island's original inhabitants

and the Tamils as foreign invaders from the north. This new historiography was pieced together

after the British discovery of the Mahavamsa and the Culavamsa, epic poems authored and

preserved by Buddhist monks that chronicled Ceylon's early history. Published by the colonial

government in 1837, the Mahavamsa in particular had already influenced earlier written

accounts of Sri Lankan history and society, such as George Turnour’s “Epitome of Ceylon

History” and Simon Casie Chitty’s Ceylon Gazetteer, which in turn shaped understandings of

ethnic identities and hierarchies in the colony. British-authored publications cemented ethnicity

17 Ibid. 18 Ibid, 101. 19 Rogers 1993, 101. 20 Ibid. 22

as a central indicator of social difference in the colonial consciousness, which significantly

influenced official colonial discourse later in the century.

British colonial rule also employed several official practices that systematically

institutionalized ethnic differences. As Nira Wickramasinghe states, the British differed from the

Portuguese and the Dutch in the “systematic manner in which categories were used and in the

modern stamp that was given to identities as providing the basis of entitlements and rights.”21

The census was one such tool that British authorities used to classify their colonial subjects and

eventually became the basis for determining ethnically-based political representation in the

colonial state. The 1814 and 1824 censuses provided information on religions and castes in

Ceylon, but the latter category encapsulated not just caste groups in their most recognized sense.

The censuses placed regional groups, such as the Europeans and Malays, occupational groups,

such as washers and potters, and larger amorphous groups, such as the Moors and Malabars in

the “caste” category.22 While the British used caste status initially to determine the taxes and

services of the Sinhalese, they eventually concluded that caste was contrary to Buddhism and

was a product of Hindu, or foreign, influence, and, thus, inappropriate to use.23 Therefore, under

the 1871 and 1881 censuses, “race” and “nationality” were used as classifications for the first

time, but with some incoherence; for instance, Sinhalese and Tamils were races as well as

nationalities. By 1921, the term “nationality” was dropped in favor of race and the census

recognized ten principal races in Ceylon, with three pairs of subdivisions within the larger

groups: Low Country and Kandyan Sinhalese, Ceylon and Indian Tamils, Ceylon and Indian

21 Wickramasinghe, Nira. 2014. “Colonialism and Constructed Identities.” In Sri Lanka in the Modern Age: A History, 49. Oxford University Press. 22 Wickramasinghe, 51. 23 Rogers, John D. 1994. “Post-Orientalism and the Interpretation of Premodern and Modern Political Identities: The Case of Sri Lanka.” The Journal of Asian Studies 53 (1): 17. 23

Moors, Burghers, Eurasians, Malays, and the Veddas. Henceforth, these “races” formed the basis

of political representation in colonial times, which eventually continued after independence.

When the Legislative Council was established in 1833 by the Colebrooke-Cameron

reforms, its unofficial membership constituted of what consisted of true representation of

Ceylon’s population according to the British: one low-country Sinhalese representative, one

Tamil representative, and one Burgher representative.24 By 1889, the Council had added two

additional members to represent the Kandyan Sinhalese and Muslim communities. All

representatives were part of a growing English-educated elite, which seemed to display all the

characteristics of an entirely new social group divorced from the traditional ethos.25 Nonetheless,

as these elites came to represent the respective ethnic groups from which they emerged, they

began to compete for power, fueled by British encouragement. This culminated in the demand

for territorial representation in lieu of communal elections in 1920. Territorial representation

stood to benefit the ethnic group with a numerical majority on the island since it would cease to

guarantee every ethnic community, including those with fewer members, equal political

representation. As Vijaya Samaraweera notes, to the Tamils, Muslims, and Burghers, this meant

the Sinhalese would gain political dominance, and to the Kandyans, this specifically aided the

low-country Sinhalese.26 The Ceylon National Congress, formed in 1919 to champion the

nationalist aspirations of the English elite, also endorsed territorial elections, which divided their

multiethnic membership. Kandyan political elites, in particular, felt threatened by these

developments due to their perceived cultural difference and political domination by their low-

country Sinhalese counterparts. Attempting to satisfy all these competing demands, Ceylon

24 Samaraweera, 100. 25 Ibid, 94. 26 Ibid, 100. 24

Governor Sir William Manning announced constitutional reforms that introduced territorial

constituencies in 1920.27

The constitutional reforms of 1920 shifted the perception of Tamils as an ethnic group on

the island. Before 1920, the Tamils and the low-country Sinhalese established the closest

political collaboration to gain concessions from the British. With the reforms, the Kandyan

community gained one more representative while the Tamils now had to contend for the

territorial positions against the Sinhalese. Hence, the Legislative Council elections of 1921,

which yielded thirteen Sinhalese to three Tamil territorial constituencies, spurred a rift between

the traditional Sinhalese and Tamil political leadership. Nira Wickramasinghe states that until the

1920s, the Tamil community had “always insisted that they were a majority community on the

same footing as the low-country Sinhalese and the Kandyans.”28 As such, “this ‘majority

complex’ had been at the heart of all their political stands.”29 Therefore, Vijaya Samaraweera

elaborates further on what these reforms meant to the Tamils:

“Of great pertinence here is the shift in the thinking of the Tamils themselves as a social group: they no longer tended to view themselves as a majority community, to be bracketed with the Sinhalese – they had now become one of the host of minorities, though no doubt the strongest.”30

Accordingly, the Tamil political elite began to campaign to return to the communal ratio of

representation and formed their own political organizations, withdrawing membership from the

Ceylon National Congress. British authorities, particularly Governor Manning, eventually

acquiesced to Tamil demands: the constitutional reforms of 1923 allotted eight seats to the

Tamils, who formed 11% of the population, and sixteen seats for the Sinhalese, who accounted

27 “Sri Lanka - Growth of Nationalist Power.” n.d. Encyclopedia Britannica. Accessed March 6, 2021. https://www.britannica.com/place/Sri-Lanka. 28 Wickramasinghe, 62. 29 Ibid. 30 Samaraweera, 102. 25

for 67% of the population.31 The provision for special representation of Kandyans was

simultaneously eliminated, so Kandyans were included in the general electorate. Thus, British

colonial policies solidified communal identities on ethnic lines, positioning the Sinhalese and

Tamils in main competition for political power in Sri Lanka.

The proselytizing of Christian missionaries during British rule also hardened ethnic

identities, particularly that of the Sinhala Buddhist. Though Christian missionaries had already

exerted their influence on the island under Portuguese and Dutch colonization, Christian

missions under British rule gained a virtual monopoly on education. These missionaries set up

English-vernacular schools, which produced the aforementioned English-speaking elite and

converted many into Christianity.32 Christian missions received favored treatment from colonial

authorities, denigrated the beliefs and religious practices of Buddhists and Hindus as inferior,

and traversed much closer within the orbit of village society than earlier missionaries.33

Consequently, at the beginning of the nineteenth century, the Christian missionaries’ presence

and work sparked backlash, particularly from those within the Sinhala Buddhist community.

Direct encounters with missionary Christianity in schools inspired Sinhala Buddhists such as

Arumuga Navalar and Anagarika Dharmapala to embrace a philosophy which Gananath

Obeyesekere terms “Protestant Buddhism.”34 Stanley Tambiah elaborates on this movement

further, describing it as the “selective retrieval” of some aspects of early Buddhism that sought to

build self-respect and upliftment of a Sinhala Buddhist identity in direct response to colonial

denigration.35 The movement also shaped a Sinhala Buddhist identity vis-à-vis other

31 Wickramasinghe, 63. 32 Tambiah, Stanley J. 1996. Leveling Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia. University of California Press, 38. 33 Ibid. 34 Ibid, 39. 35 Ibid, 40. 26

ethnoreligious groups on the island. For instance, a pamphlet published in Calcutta in 1922

asserted that “Tamils…are employed in large numbers to the prejudice of the people of the

Island – sons of the soil, who contribute the largest share.”36 Buddhist revivalism reacted in

opposition to colonial rule while working under the same framework of understandings regarding

ethnic identity that colonial rule held, becoming violently responsive to the perceived domination

of other ethnoreligious groups in the decades before independence and continuing in the post-

colonial era.

Communal Divisions Before Independence

Heightened communal consciousness contributed to the rising salience of communal

identities, and in some instances, communal violence. Most conflicts occurred over ritual

precedence and demarcation of sacred space37; however, they exposed the underlying tensions

between those that claimed status as original inhabitants of the island – mainly the Sinhalese

Buddhists – and the purportedly “foreign” outsider groups, such as Christians, Tamils, and

Moors. Aided by the growth of Buddhist revivalism, Buddhist processions claimed the right to

pass through Catholic communities and close to churches and opposed the building of Christian

institutions in traditionally Buddhist areas, triggering clashes between the two communities on

several occasions in the late nineteenth and early twentieth centuries.38 The Kotahena riot of

1883 was the most significant of these riots, in which Buddhist processions in the time of Lent

36 Ibid, 41. 37 Nissan, Elizabeth, and R.L. Stirrat. 1990. “The Generation of Communal Identities.” In Sri Lanka: History and the Roots of Conflict, Edited by Jonathan Spencer, 31. Taylor & Francis Group. 38 Wickramasinghe, Nira. 2014. “Before Independence: Communities and Conflicts.” In Sri Lanka in the Modern Age: A History, 120. Oxford University Press.

sparked riots involving both Buddhists and Roman Catholics. However, the Kotahena riots,

while involving different religious communities, mostly involved Sinhalese participants.

Before independence, the biggest communal riot occurred in 1915 between Sinhala

Buddhists and the Coast Moors, who were recent Muslim immigrants from Southern India.

Rioting started in Kandy after the Moors contested the loud music played during Buddhist

processions that passed their mosques. In the subsequent days, rioting spread all across the

island, from Colombo and the Western province to the Southern, Central, Northwestern, and

Sabaragamuwa provinces.39 Religious tensions alone did not account for all the causes of the

violence; the Coast Moors were direct economic competitors with low country Sinhalese

creditors, who accused the former of extending credit on easy terms and charging high prices.

Stanley Tambiah also notes that World War I had created shortages of food and increased prices.

As Coast Moor traders were prominent in the retail trade for foodstuffs and had already been

negatively stereotyped by the Sinhalese as “outsiders,” they were inevitably falsely accused of

artificially increasing prices.40 Ultimately, colonial authorities, who came to view the clashes as a

conspiracy against them by the Sinhalese, brutally suppressed the riots.41 Although often

overlooked, the 1915 riots foregrounded future ethnic conflict in an independent Sri Lanka.

Another group on the island subject to significant discrimination due to their alleged

outsider status was the up-country Tamil community, also referred to as Ceylon Indians or Indian

Tamils. The British recruited workers from the Indian region of Tamil Nadu during the early

nineteenth century to work on tea, coffee, and rubber plantations. By 1871, Ceylon's plantation

39 Tambiah, 56. 40 Ibid, 57. 41 Wickramasinghe 2014, 126. 28

sector involved 123,000 Indian Tamils, which increased to 235,000 in 1891.42 In 1911, a separate

census category was created to distinguish up-country Tamils from their Sri Lankan Tamil

counterparts; the criterion that determined the difference was the ability to trace one’s ancestry to

a traditionally Tamil-speaking district in Sri Lanka.43 British patronage of Tamil laborers in

Ceylon was further evidence to the Sinhalese community that the colonizers favored “foreign”

minorities over the original, rightful inhabitants of the island. This growing sentiment culminated

in the demand that up-country Tamils be barred from voting in the 1931 Donoughmore

Constitution. While the British rejected this proposition and granted universal suffrage under the

Donoughmore Constitution, the Ceylon Indian population of the island continued to face threats

to their political rights and livelihoods after independence.

Ethnonationalism and the State after Independence

Ethnically-based governmental representation during colonial rule shaped political

identity and conflict in the years surrounding independence. This section will pursue Nira

Wickramasinghe’s line of argumentation that:

“The colonial institution of race and culture-based representative government, as a prelude to self-government and citizenship for natives, invented distinctively modern forms of political identity and conflict in Sri Lanka, as well as in other colonies. Race, culture and later, nationality-based representative government, also resulted in the generation of new names and concepts including residents and aliens, indigenous and immigrants, majorities and minorities, to deal with perceived differences among communities. Representative politics spawned the concept of majorities.”44

42 Chandrabose, A.S. 2014. “Cultural Identity of Indian Tamils in Sri Lanka: A Measurement of Multi- Dimensional Status of the Indian Tamil Society in Sri Lanka.” In Circulation of Cultures and Culture of Circulation: Diasporic Cultures of South Asia During 18th to 20th Centuries, Edited by Sanjay Garg, 147. Colombo: SAARC Cultural Centre. 43 Wickramasinghe 2014, 128. 44 Wickramasinghe, Nira. 2006. “Sri Lanka’s Conflict: Culture and Lineages of the Past.” Journal of International Affairs 60 (1): 110.

Besides granting adult universal suffrage, the Donoughmore Constitution abolished all

communal electorates, leading to a period of dominance by the Sinhalese elite in the legislature

and the formation of associations claiming to represent minority identities on the island, based on

religion, caste, ethnicity, or region. Such associations included the Dutch Burgher Union, the All

Ceylon Minority Tamil Sabha, and the All Ceylon Scheduled Castes Federation. After Ceylonese

natives gained full participatory government with the Soulbury Report in 1945, minority groups

agitated for special representation in legislative bodies. In response, provision was made in the

Soulbury Report for the protection of minority rights but also assumed that the minority

communities constituted a large and powerful enough bloc to challenge majoritarian initiatives.

Upon independence in 1948, Ceylon adopted the Soulbury Constitution, which provided an

adapted version of the British parliamentary system: it consisted of a Senate and House of

Representatives and had legislative authority. The United National Party (UNP) led by D.S.

Senanayake made up the first government, but after failing to gain an overall majority in the

1947 elections, it formed a coalition with many independent Parliament members and parties

from numerous communities.45 While the first cabinet of Prime Minister Senanayake, which was

composed of MPs from many of the minority communities, seemed to indicate that an

independent Ceylon would attempt to forge unity amongst the different ethnoreligious

populations of the island, subsequent actions concerning the Indian Tamil community proved

otherwise.

Soon after independence, the new government of Ceylon passed three citizenship laws

that effectively disenfranchised the Indian Tamil population: the Ceylon Citizenship Act no. 18

of 1948, the Indian and Pakistani Residents Act of 1949, and the Ceylon Amendment Act, no. 48

45 Kanapathipillai, Valli. 2009. “1948: Disenfranchisement.” In Citizenship and Statelessness in Sri Lanka : The Case of the Tamil Estate Workers, 40. Anthem Press. 30

of 1949. The acts guaranteed citizenship to those who could prove that their paternal lineage

originated in Ceylon; as many up-country Tamils had parents born in India or lacked the proper

documentation to prove otherwise, most were consequently without citizenship and rendered

stateless. Valli Kanapathipillai argues that these acts “thereby established and legalized the rigid

conditions of citizenship envisaged by the conservative Sinhala leadership for the Indian Tamils,

and resulted in the latter’s exclusion from political life.”46 Furthermore, citizenship legislation on

Indian Tamils also had significant repercussions for Ceylon Tamils. The passage of the acts both

confirmed linkages of solidarity between the two communities and exposed the caste and class

divides that made them distinct from one another. Some Tamil politicians left the Tamil

Congress party in protest of the new legislation whereas, others, such as G.G. Ponnambalam, led

the Tamil Congress in joining the coalition with UNP to support the acts. The acts also initiated a

close but contentious diplomatic relationship between the island nation and its neighbor to the

north, India. Prime Minister Nehru initially encouraged the Ceylonese government to provide a

citizenship pathway for Indian Tamils and later refused to accept large-scale repatriation of them

back to India. The disenfranchisement of Ceylon Indians in the early years of independence

demonstrated that despite aspirations toward European-style secular democracy, ethnic identities

remained salient in political decision-making during the post-colonial era. In particular, the acts

contributed to the domination of Sinhala Buddhist nationalism in subsequent decades since it

enabled increased representation for the Sinhalese, suppressing the voice of the up-country

Tamils, a significant minority.47

46 Ibid, 43. 47 Kanapathipillai, 70.

In the next decade, the UNP lost its political stronghold after S.W.R.D. Bandaranaike resigned from his government posts and formed the Sri Lanka Freedom Party (SLFP) in 1951.

The SLFP focused on the cultural and economic reintegration of the Sinhalese masses in place of the perceived dominance of the Tamils, who were perceived to occupy a disproportionate amount of bureaucratic positions. Moreover, many Tamils formerly attached to the UNP-allied

Tamil Congress had left to join the Illankai Thamil Arasu Kadchi or the Federal Party, which had by the mid-1950s emerged as the dominant Tamil party. The SLFP's overwhelming victory in the

1956 elections led to the passage of the Sinhala-Only Act, which made Sinhala the official language of government. The move immediately garnered Tamil opposition, sparking initially peaceful protests that culminated in anti-Tamil riots in the following years. In subsequent attempts to placate Tamil demands, the SLFP government passed the Tamil Language (Special

Provisions) Act in 1958, which authorized Tamil's administrative usage in the Northern and

Eastern provinces. The previous year, Prime Minister Bandaranaike signed a pact with Federal

Party leader S.J.V Chelvanayakam which attempted a compromise between Sinhalese and Tamil demands: Tamils agreed to halt their protests of the Sinhala-Only Act and settle for Tamil as a minority language in the north and east while the government agreed to create a series of regional councils across the country to provide for more Tamil autonomy. Although

Bandaranaike’s government reneged on this promise in 1958 after protest from Buddhist clergy,

Sinhalese nationalists, and the UNP, Prime Minister Bandaranaike himself was assassinated by a

Buddhist priest over his betrayal of the Sinhala Buddhist community with his compromise. The

Sinhala-Only Act marked a turning point in relations between the Tamil and Sinhalese communities on the island, in which the latter’s resentment of the former’s perceived privilege grew violent, foreshadowing ethnic conflict in the years to come. 32

Worsening economic conditions in the 1970s fomented increased Sinhala Buddhist

nationalist sentiment across the country. The Janatha Vimukthi Peramuna (JVP) movement,

which promoted an egalitarian Sinhala Buddhist ideology rooted in Marxism, gained traction

with thousands of Sinhalese academics, students, Buddhist monks, and unemployed workers

during this time. In 1971, young, militant JVP members launched an insurgency against the

government, attacking ninety-three police stations and killing sixty-three police and service

personnel. The insurrection was subsequently crushed by government forces, killing between

5,000 and 10,000 in the process. A year later, the country adopted a new constitution, changing

its official name from Ceylon to Sri Lanka. The 1972 Constitution of Sri Lanka was the

“culmination of the ideological impetus of the 1956 movement,” according to Nira

Wickramasinghe.48 It accorded Buddhism an elevated position amongst the island’s religions and

established Sinhala as the official language at a constitutional level. Moreover, it made the

Parliament the supreme body of government, positioning the Tamil constituencies and their

respective political parties as a disadvantage, as the ruling SLFP-led United Front coalition’s

two-thirds majority enabled them to govern without any seats from the north and east, rendering

Tamil support unnecessary.49 Hence, the 1972 Constitution of Sri Lanka erased the Soulbury

Commission’s efforts to protect minority communities, which had lasting consequences for

ethnic relations in the country.

The Formation of the Liberation Tamil Tigers of Eelam

Between 1970 and 1977, the United Front coalition did not include any Tamil parties and

even passed legislation that was arguably harmful to the Tamil community as a whole. One

48 Wickramasinghe 2014, 192. 49 Ibid. 33

political development during this period that was of crucial significance entailed newly

introduced policies for university admissions. The new guidelines limited access to higher

education for Tamils through a system of quotas.50 More specifically, the new quota system

advantaged underdeveloped areas and communities, such as the Kandyans and Muslims.

Conversely, urban candidates from Jaffna and Colombo faced higher barriers to entry, leading to

the perception among Tamil youth that the government had taken away their opportunities for

economic mobility and political rights. The government was also more concerned about

rehabilitating the Sinhalese youth that had participated in the failed JVP uprising through

expanding their access to education. Furthermore, an attempted government coup from military

leaders of Christian backgrounds changed the police force composition in the north and east from

being predominantly Christian to mostly Sinhala Buddhist in the 1960s. Accordingly, by the

1970s, Tamils came to view the police forces as hostile forces of occupation.51 While Tamil

moderate groups united together to form a Tamil United Liberation Front (TULF) and advocate

for a separate Tamil state, the increased militancy of Tamil lower-middle-class youth was an

outcome that yielded the most significant consequences.

The growing disillusionment of Tamil youth with the state coupled with the development

of numerous liberation movements globally, including Bangladesh’s independence in 1971,

intensified demands for an independent Tamil state, or Eelam.52 Between 1972 and 1977, young

Tamils began to form successionist groups that violently agitated for Eelam, robbing banks to

purchase weapons and assassinating police personnel and moderate Tamil politicians. For

50 Wickramasinghe, Nira. 2014. “The Search for Sovereignty: Tamil Separatism/Nationalism.” In Sri Lanka in the Modern Age: A History, 292. Oxford University Press. 51 Wickramasinghe 2014, 294. 52 De Votta, Neil. 2009. “The Liberation Tigers of Tamil Eelam and the Lost Quest for Separatism in Sri Lanka.” Asian Survey 49 (6): 1027. 34

instance, a group of young Tamils, led by Velupillai Prabhakaran, killed former mayor and MP

for Jaffna, Alfred Durayappah. Prabhakaran’s organization became known as the Tamil New

Tigers in 1972, later changing its name to the Liberation Tigers of Tamil Eelam (LTTE) in

1975. Other groups included the People’s Liberation Organization of Tamil Eelam (PLOTE), the

Tamil Eelam Liberation Organization (TELO), and the Eelam People’s Revolutionary Liberation

Front (EPRLF). Prabhakaran and other leaders of Tamil insurrectionary groups were much

younger than Tamil politicians, had no experience with democratic politics, belonged to a social

stratum that deeply resented upper-class and upper-caste domination, and predominately spoke

Tamil in place of English or Sinhala.53 The 1977 elections reflected the growing popularity of

self-determination amongst the Tamil community, as the TULF won the second largest amount

of seats in Parliament on this platform. Nevertheless, subsequent anti-Tamil riots that killed an

estimated 300, which a responding commission attributed to Sinhalese resentment and anger

over the Tamils’ separatist demands, alleged anti-Sinhalese statements made by Tamil politicians

on the campaign trail, and the LTTE’s preliminary acts of violence.54 Although the new UNP

government passed a new constitution in 1978 that attempted to increase Tamil representation in

Parliament, it did little to address the calls for a separate Tamil state on the island. Tensions

between the Tamil and Sinhalese communities escalated into the turn of the 1980s, signaling

incoming conflict created by the seemingly irreconcilable polarization between the country’s two

ethnic populations.

53 Wickramasinghe 2014, 294. 54 Kearney, Robert N. 1985. “Ethnic Conflict and the Tamil Separatist Movement in Sri Lanka.” Asian Survey 25 (9): 907. 35

The War: Key Events

The Beginning

Sporadic communal violence turned into deadly country-wide riots in July 1983. After

LTTE members allegedly ambushed an army truck in majority-Tamil Thirunelveli, murdering

and mutilating thirteen soldiers in the process, Sinhalese mobs retaliated by targeting and killing

Tamils across the country and destroying Tamil-owned businesses and residences. The violence,

which started in Colombo and spread to other parts of island, was systematically organized;

rioters carried voter lists and addresses of Tamil owners and occupants of houses, shops,

industries, and other properties to determine their targets.55 While the official death toll from

“Black July” was stated to be about 470, Stanley Tambiah estimates that 2,000 to 3,000 people

were murdered, many of them in a brutal manner.56 The government under the leadership of

President J.R. Jayewardene declared a curfew after the worst of the violence, failed to appeal to

the predominantly-Sinhala mobs for restraint, and construed the riots as a defensive response to

the threat of Tamil militants.57 The following year, violence escalated as the LTTE intensified

their attacks and security forces responded accordingly. Thus, decades of sectarian tensions had

sparked the beginning of the civil war in 1983.

Key Events

In this section, I will briefly summarize some of the key events of the war between 1983

and 2009. The following table will provide succinct but necessary information about historical

developments in the war, which might help the reader understand why some of the war’s

atrocities might merit transitional justice responses in its aftermath.

55 Tambiah, 96. 56 Tambiah, 94. 57 Wickramasinghe 2014, 300. 36

Date Development5859

With the start of the “First Eelam War” in 1983, Tamil militant groups and the Sri Lankan army both launched devastating attacks. Amid rising 1984 violence, which included the massacring of innocent civilians on both sides, President Jayewardene convenes an “All Party Conference” to “"discuss the daily growing problems of the country in regard to ethnic affairs and terrorism and seek solutions.”60 Representatives of all eight political parties began deliberations in January 1984. By the end of the year, the parties had failed to reach an agreement on any significant issue.

After significant pressure from India, the government and Tamil militant groups agreed to a ceasefire and entered talks in Thimphu, Bhutan. Although tensions existed between many of the Tamil militant groups, they 1985 attempted to create an alliance – the Eelam National Liberation Front – for the talks. Both the alliance and the talks were short-lived.

By this time, the LTTE had emerged as the dominant Tamil militant group on the island. The government launched Operation Liberation, a long- 1987 awaited offensive against the LTTE that pushes the group back to the north in Jaffna. Operation Liberation is suspended after Indian concerns, prompting the Indian air force to drop food supplies to civilians in Jaffna. In July, Sri Lanka and India sign the Indo-Lankan Accord. Based on the treaty’s terms, Indian peacekeeping forces entered the north and east of the island by land and sea.

After sustaining heavy casualties and garnering criticism from the Sri Lankan government and Tamil civilians alike, Indian troops withdrew from 1990 Sri Lanka. As the LTTE controls Jaffna, fighting between the two sides escalates, initiating the “Second Eelam War.” Also at this time, over 60,000 Muslims are expelled from the Jaffna peninsula by the LTTE.

58 Staff, Reuters. 2009. “TIMELINE: Sri Lanka’s 25-Year Civil War.” Reuters, May 18, 2009. https://www.reuters.com/article/us-srilanka-war-timeline-sb-idUSTRE54F16620090518. 59 BBC News. 2019. “Sri Lanka Profile - Timeline,” November 18, 2019, sec. Asia. https://www.bbc.com/news/world-south-asia-12004081. 60 Kearney, 914.

The LTTE assassinated former Indian Prime Minister Rajiv Gandhi in a suicide bomb in Tamil Nadu, commencing a series of suicide killings of 1991 high-profile politicians, who were often perceived as enemies of the group, in following years.

Two years after the LTTE assassinated Sri Lankan President Ranasinghe Premadasa, the newly elected government of Chandrika Bandaranaike 1995 Kumaratunga and the LTTE agreed to a ceasefire and began talks in January. However, the “Third Eelam War” started that April when the LTTE sink two navy vessels.

The war intensified in the north and east between the LTTE and the government. During this time, the LTTE bombed Sri Lanka’s holiest 1996 – 2001 Buddhist site, the Temple of the Tooth, launched a suicide attack on Bandaranaike International Airport, destroying half of the Sri Lankan airlines fleet, and killed around 100 people during an attack on the central bank in Colombo. The government had taken over Jaffna in 1996. In doing so, security forces allegedly massacred civilians, including children.

Norwegian officials managed to secure a ceasefire between the two sides 2002 after the government invited the country to act as a meditator two years prior. A year later, the LTTE pulls out of the Norwegian-facilitated peace talks but the ceasefire still held for another year.

Tamil Tiger eastern commander Colonel Karuna Amman defected from the LTTE and took 6,000 fighters with him. After an LTTE offensive regained 2004 – 2005 control of the east, the country was hit by a tsunami in December 2004, killing more than 30,000 people. In August 2005, a suspected LTTE assassin killed Foreign Minister Lakshman Kadirgamar. Later that year, hardliner Mahinda Rajapaksa won the presidential elections.

The government launched a military campaign to root out the LTTE, 2006 engaging in the worst clashes since the 2002 ceasefire and killing increasing numbers of civilians. By October, attempted peace talks between the two sides failed in Geneva.

In July, government forces captured the country’s eastern strongholds. The 2007 – 2008 government subsequently pulled out of the 2002 ceasefire agreement in January 2008, prompting Norwegian observers to leave the country. The 38

government continued to intensify their offensive against the LTTE and captured a key LTTE naval base of Vidattaltivu in the north.

President Mahinda Rajapaksa called on the LTTE to surrender after government troops captured the northern town of Kilinochchi, the 2009 administrative headquarters of the LTTE for ten years. On May 18, 2009, the military declared that the entire island was under government control after defeating remaining LTTE leaders, including Velupillai Prabhakaran. The war is officially over but thousands remain internally displaced or missing.

The War: Its Grievances

While the civil war ended in 2009, many of the legacies of the conflict remain

unaddressed. This section is composed of material found in the reports of global governance

organizations, such as the United Nations, and international human rights agencies, such as

Amnesty International and Human Rights Watch. However, the government’s resistance to

cooperating with these groups has made it difficult to determine if published reports on the war’s

human rights abuses contain complete information. Thus, the following details are hardly

sufficient to describe the full horrors of the civil war. Nonetheless, it is necessary to provide the

following information to uncover the impetus for pursuing transitional justice in Sri Lanka in the

first place.

Enforced Disappearances and Extrajudicial Killings

According to international law, an enforced disappearance “occurs when state authorities

detain a person and then refuse to acknowledge the deprivation of liberty or the person’s

whereabouts, placing the person outside the protection of the law.”61 Even before the start of the

61 “Recurring Nightmare: State Responsibility for ‘Disappearances’ and Abductions in Sri Lanka.” 2008. Volume 20, No. 2(C). Human Rights Watch, 39

civil war, enforced disappearances grew after insurrections against the state. Suspected JVP

members, often young Sinhalese people, were killed or forcibly disappeared by government-

operated death squads in 1989 and 1990.62 However, this continued throughout the civil war, as

suspected Tamil LTTE-affiliates were forcibly disappeared by police, military, and paramilitary

operatives.63 While disappearances primarily occurred in conflict zones in the north and east of

the country, many disappearances also occurred in Colombo. A Human Rights Watch report

released in March 2008 noted that many families “knew exactly which military units had

detained their relatives, which camps they were taken to, and sometimes even the license plate

numbers of the military vehicles that took them away.”64 Other families described dozens of

armed men abducting victims from their homes, often located near army checkpoints, sentry

posts, or other military positions, indicating military involvement. In some of these instances,

uniformed policemen, particularly those from the Criminal Investigation Department, took

victims into custody before they “disappeared” without producing the required “arrest receipt.”65

According to the same report, those affiliated with the LTTE were the most likely targets,

resulting in a high number of missing young Tamil men. Enforced disappearances of those

critical of the government, such as journalist Prageeth Eknaligoda, continued even after the war’s

conclusion. As a result, Sri Lanka has one of the world’s highest number of enforced

disappearances, with a backlog of between 60,000 and 100,000 disappearances since the late

1980s.66

62 Shetty, Salil. 2017. “Why Sri Lanka’s Past Refuses to Be Forgotten.” Amnesty International. April 3, 2017. https://www.amnesty.org/en/latest/news/2017/04/accountability-for-enforced-disappearances-in-sri-lanka/. 63 Ibid. 64 Human Rights Watch 2008, 5. 65 Human Rights Watch 2008, 5. 66 Shetty 2017. 40

Both sides were responsible for extrajudicial executions throughout the civil war. In

2006, a released UN report declared that extrajudicial executions were "a singularly important

element in the exacerbation of the conflict.”67 Both security forces and the LTTE, along with

their affiliated paramilitary groups, targeted people – Sinhalese, Tamil, and Muslim people alike

– they suspected of aiding or joining the other side. Nonetheless, the 2006 report noted that

Tamil and Muslim civilians in particular “face a credible threat of death for exercising freedoms

of expression, movement, association, and participation in public affairs.”68 It is important to

note that despite their mission, the LTTE killed many moderate Tamils, including academics,

politicians, and members of rival political groups and paramilitary groups. An investigation led

by the UN Office of the High Commissioner for Human Rights (UN OHCHR) in 2015

characterized extrajudicial executions as part of a broader pattern of unlawful killings, including

assassinations after arbitrary arrests or abductions.69 The report also remarked on the link

between enforced disappearances and extrajudicial executions, as security forces abducted those

deemed “suspicious” in white vans, who later turned up dead. In the final phase of the civil war,

security forces captured LTTE territorial strongholds in the north and east, marking a turning

point in extrajudicial executions. The 2015 OHCHR report found through witness testimonies,

high-resolution photographs, and video evidence that unarmed LTTE members were killed after

surrendering to the military at the end of the conflict.70 In some cases, these LTTE members

67 “Extrajudicial, Summary, or Arbitrary Executions: Report of the Special Rapporteur Philip Alston, Mission to Sri Lanka.” 2006. E/CN.4/2006/53/Add.5. United Nations Economic and Social Council. 68 United Nations Economic and Social Council 2006, 6 – 7. 69 “Report of the OHCHR Investigation on Sri Lanka (OISL).” 2015. A/HRC/30/CRP.2. United Nations Human Rights Office of the High Commissioner, 47. 70 “Info Note 4: Report of the OHCHR Investigation on Sri Lanka, September 2015.” 2015. UN Human Rights Office of the High Commissioner. 41

were blindfolded, bound, and shot from close range. Many officials believed to be responsible

for ordering these executions remain in top government positions to this day.

Sexual and Gender-Based Violence

Gender-based violence constituted a significant component of human rights violations

during the civil war, particularly involving women and girls. Before the war had even started, the

Tamil separatist movement itself was fueled by reports of abuse on Tamil women by security

forces. While many women consequently joined the LTTE on their own accord, the LTTE also

forcibly recruited women and girls to join the insurgency and killed women who challenged the

group’s authority. Paradoxically, the LTTE promoted women’s empowerment, even forming the

“Birds of Freedom” – the LTTE’s Women’s Wing – that advocated abolishing oppressive gender

and caste discrimination while also engaging in combat operations and suicide attacks.

According to a report published by the International Crisis Group in 2011, some Tamil women

joined the LTTE to escape abuse within their families and communities due to the LTTE’s rigid

code of conduct that prohibited sexual violence.71 For instance, a woman who was subject to

sexual violence could find “salvation” by joining the insurgency, empowering herself, and

battling her perpetrators: the Sinhalese state and its agents.72 However, the LTTE’s abductions,

extrajudicial killings, and suicide attacks have left many women behind as “war widows” who

struggle to provide for themselves and their families and are stigmatized by society. Even as the

LTTE seemed to dismantle existing gender roles within their organization, their actions in war

rendered women in the north and east more socially and economically vulnerable than ever.

71“Sri Lanka: Women’s Insecurity in the North and East.” 2011. International Crisis Group. 72 Ibid, 6. 42

Although difficult to document due to the historical stigmatization of the subject, many

reports have detailed patterns of sexual and gender-based violence involving security forces.

Many instances of sexual violence occurred in official and secret detention centers throughout

the country, as a tactic to gain information from those detained. According to Human Rights

Watch, men and women alike reported being raped on multiple days during their detentions,

often by several people, with the army, police, and pro-government paramilitary groups

frequently participating.73 As in the case with many other atrocities committed by security

forces, many of the victims were Tamil. Detainees also endured other forms of sexual

harassment: inappropriate touching, forced nudity accompanied by nonconsensual photographs,

and forced viewing of videos depicting other instances of sexual violence. During the final phase

of the war, the 2015 OHCHR report obtained videos from soldiers' mobile phones that

documented soldiers “laughing and making very graphic, lewd and offensive sexual comments

as they lingeringly film the breasts and genitals of naked female corpses.”74 According to the

same report, the government has consistently sought to deny or play down the allegations of

sexual and gender-based violence during the war.75

Militant Use of Children

The LTTE forcibly recruited and used children as soldiers throughout the civil war,

especially after the departure of Indian peacekeeping forces in October 1987. According to a

Human Rights Watch report produced in 2004, Tamil children were particularly vulnerable to

recruitment beginning at eleven or twelve years old, and families that resisted were harassed and

73 “We Will Teach You a Lesson’: Sexual Violence against Tamils by Sri Lankan Security Forces.” 2013. Human Rights Watch. https://www.hrw.org/news/2013/02/26/sri-lanka-rape-tamil-detainees. 74OISL 2015, 70. 75Ibid, 119. 43

threatened.76 In demanding children for the “movement,” the LTTE also resorted to abducting

children on their way to school, attending religious festivals, or in their homes at night.77 After

2004, the LTTE also captured children displaced or orphaned by the Indian Ocean tsunami, even

kidnapping them from camps for tsunami survivors on the island’s eastern coast.78 Once in the

organization, children were forbidden to contact their families and were subject to brutal military

training, including severe punishment for defection attempts. Between January 2002 and

September 2007, the Office of the United Nations High Commissioner for Refugees estimated

that the LTTE had recruited well over 6,000 children but thought the actual number to be

higher.79 In the last few months of the war in 2009, UNICEF verified and documented 397 cases

of child recruitment, including 147 girls.80 In totality, hundreds of these children were killed or

maimed. At this time, parents took increasingly desperate measures to protect their children from

the LTTE’s grasp, hiding their children in secret locations or evading the LTTE's preference for

unmarried youths by pressuring them into early arranged marriages.81 While the LTTE denied

allegations of coercing children for militant use during the war, international condemnation of

the practice became one reason for the LTTE’s prohibition in several countries, including the

United Kingdom, the United States, Canada, and India.

In 2004, the Karuna faction began to forcibly recruit underage boys, many of whom had

previously been associated with the LTTE. However, the UN High Commissioner for Human

76 “Living in Fear.” 2004. Human Rights Watch. November 10, 2004. https://www.hrw.org/report/2004/11/10/living-fear/child-soldiers-and-tamil-tigers-sri-lanka. 77 Ibid. 78 “Sri Lanka: Child Tsunami Victims Recruited by Tamil Tigers.” 2005. Human Rights Watch. January 14, 2005. https://www.hrw.org/news/2005/01/14/sri-lanka-child-tsunami-victims-recruited-tamil-tigers. 79 “Child Soldiers Global Report 2008 - Sri Lanka.” 2008. United Nations High Commissioner for Refugees. May 20, 2008. https://www.refworld.org/docid/486cb131c.html. 80 “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka.” 2011. United Nations, 28. 81 Ibid. 44

Rights noted in 2008 that there might have been under-reporting of recruitment into the Karuna

faction since many impoverished families depended on the compensation their children received

from the group.82 The Sri Lankan military also allegedly aided and abetted forced child

recruitment by the Karuna’s group. A UN special advisor on children and armed conflict “found

strong and credible evidence that certain elements of the government security forces are

supporting and sometimes participating in the abductions and forced recruitment of children by

the Karuna faction.”83 Hence, the international community condemned the government for

tolerating the actions of security forces supporting the Karuna faction. Although the Rajapaksa

government initially appeared to heed calls to investigate the allegations against Colonel Karuna,

the ex-LTTE militant converted his organization into a political party after the war’s conclusion,

eventually becoming a deputy minister in Mahinda Rajapaksa’s government. Demands for his

investigation regarding child soldiers only resurfaced after he made remarks in May 2020 that he

was more dangerous than the coronavirus, as he had killed between 2,000 and 3,000 soldiers on

behalf of the LTTE during the war.84

Attacks on Civilians

While all the war’s grievances documented in this chapter so far have involved civilians,

this section will chronicle the Sri Lankan government and LTTE’s actions in combat that have

resulted in the harm and death of civilians. Even before the war, the LTTE launched attacks on

82 United Nations High Commissioner for Refugees, 2008. 83 “UN Adviser Finds Sri Lanka’s Children ‘at Risk from All Sides’ in the Bloody Conflict.” 2006. UN News. November 14, 2006. https://news.un.org/en/story/2006/11/199622-un-adviser-finds-sri-lankas-children- risk-all-sides-bloody-conflict. 84 “UNHRC Calls for Investigation on Former LTTE Leader over ‘wholesale Recruitment’ of Child Soldiers.” 2020. Deccan Herald. June 26, 2020. https://www.deccanherald.com/international/world-news- politics/unhrc-calls-for-investigation-on-former-ltte-leader-over-wholesale-recruitment-of-child-soldiers- 854016.html. 45

civilians in retaliation for the past actions of security forces in the north and east. For instance, in

1985, LTTE cadres disguised as soldiers opened fire at a bus stop in Anuradhapura, killing at

least 86 civilians, in response to a massacre of 43 Tamil civilians by the Sri Lankan army at

Valvetithura. The LTTE was also among the first groups to institutionalize the tactic of suicide

bombings, which targeted people or places of supposed strategic, political, economic, or

symbolic value. These bombings also caused “collateral damage” in the form of civilian

casualties.85 Some of the deadliest attacks included the 1996 bombing of the Central Bank in

Colombo, with at least 91 killed and 1,400 injured, the 1996 Dehiwala train bombing with 64

deaths and 400 injuries, and the 2006 Digampathana truck bombing with 112 deaths and over

150 injuries.86 In some instances, the suicide attackers themselves lived in the target area as

ordinary civilians for years before carrying out their mission. Furthermore, the LTTE’s suicide

attacks had consequences beyond borders; a suicide bomb that assassinated former Indian prime

minister Rajiv Gandhi also killed fourteen other people in Tamil Nadu, India. Consequently, over

32 different states came to brand the LTTE as a terrorist organization, including India, the US,

UK, Canada, and Malaysia.

Attacks on civilians escalated during the final stages of the conflict as the government

and LTTE battled for control over contested territories in the north and east. In late 2008, the Sri

Lankan army employed a military strategy to confine the LTTE and the civilians that remained

in LTTE-controlled territories into smaller areas, partly through “safe zones” or “No Fire Zones”

(NFZs) created by the government. Despite their previous affirmations to the contrary, the

85 Somasundaram, Daya. 2010. “Suicide Bombers of Sri Lanka.” Asian Journal of Social Science 38 (3): 416– 41. 86 “Suicide Terrorism in the Sri Lankan Civil War (1983 - 2009).” 2018. AOAV (blog). October 15, 2018. https://aoav.org.uk/2018/suicide-terrorism-in-the-sri-lankan-civil-war-1983-2009/.

military shelled these areas repeatedly. In 2011, the UN Secretary-General's Panel of Experts on

Accountability in Sri Lanka found that the Sri Lankan army "employed artillery in a manner that

did not target specific military objectives but struck civilians without distinction including within

the self-declared NFZs and civilian objects such as hospitals and food distribution lines."87 The

report also alleges that the government failed to provide sufficient advance warning of these

attacks to civilian populations in these areas and placed restrictions on humanitarian assistance,

such as basic medical supplies and foodstuffs. In response to encroaching security forces, the

LTTE imposed restrictions that prevented civilians from leaving their territories in the north and

east; LTTE cadres shot dead, beat, and injured people, including children, as they attempted to

flee. While the 2011 UN report “did not find credible evidence of the LTTE deliberately moving

civilians towards military targets to protect the latter from attacks,” activists on both sides have

accused the LTTE of using civilians as human shields by trapping them in LTTE-controlled

territory. Due to the human rights violations committed by both sides of the conflict, the final

stages of the war resulted in an estimated 40,000 civilian deaths, with many more missing,

internally displaced, or injured.

Looking Ahead

Given the historical and political context provided in this chapter, the following two

chapters will elaborate on the past transitional justice responses to the civil war and the

conditions under which future transitional justice initiatives would occur in Sri Lanka. The

legacies of ethnic divisions on the island remain salient to the conflict’s aftermath, especially

concerning how transitional justice efforts have and will continue to manifest. As will be

87 United Nations 2011, 58.

47 demonstrated in these later chapters, the Sri Lankan government’s continued use of Sinhalese-

Buddhist majoritarian rhetoric and policies, which disproportionately affect other ethnoreligious communities, have posed immense challenges for the transitional justice process in Sri Lanka.

Chapter 2 – Transitional Justice: An Overview Of Its Dilemmas

Transitional justice arose from a need for societies to deal with human rights abuses

committed during a conflict or widespread political repression. It entails judicial and non-judicial

measures implemented in a range of settings, from the international to the local. While

transitional justice intends to be a tool of conflict resolution in many contexts, there are concerns

over its ability to fulfill all its mandates – from accountability to reconciliation – effectively. This

chapter provides an overview of transitional justice in theory and practice, elaborating on the

tensions between the various goals of transitional justice that will become especially apparent in

later chapters when critiquing and clarifying the concept concerning the Sri Lankan civil war’s

aftermath.

What is Transitional Justice?

There is no universally agreed-upon definition for transitional justice. Prevailing

conceptions of transitional justice in academic literature and as used by global governance

institutions and international non-governmental organizations vary in specificity and focus. For

instance, the United Nations defines transitional justice as “the full range of processes and

mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale

past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”88 The

definition listed by the International Center for Transitional Justice states that transitional justice

“is a response to systematic or widespread violations of human rights…(that) seeks recognition

for victims and promotion of possibilities for peace, reconciliation, and democracy.”89 In

contrast, Ruti Teitel’s commonly cited definition describes transitional justice as the “conception

88 “Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice.” 2010. United Nations. https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf. 89 “Fact Sheet: What Is Transitional Justice?” 2009. International Center for Transitional Justice. 49

of justice associated with periods of political change.”90 Despite all their differences, definitions

of transitional justice retain a commonality in specifying that societies should respond to

violations against human rights, thus transitioning toward better political outcomes.

This thesis defines transitional justice as the various mechanisms a society can use to

address and rectify human rights abuses in the aftermath of violent conflict to produce a more

just future and prevent the recurrence of atrocities. This definition attempts to outline what

transitional justice is without assuming what specific goals it seeks to accomplish in each case.

The proceeding sections of this chapter will interrogate this framework of transitional justice

further, especially as it relates to notions of a “more just future,” examining how it holds up in

actuality.

Transitional Justice Goals

As its definition suggests, transitional justice seeks to achieve a wide variety of aims to

aid societies in addressing the consequences of conflict. Some of the goals of transitional justice,

as articulated by the existing literature, include:

• Confronting and responding to injustices, including human rights violations • Reconciliation and repairing harms that have divided a community • Instigating political change, such as a transition to democracy or a society bound by the rule of law • Holding perpetrators of abuses accountable for their past actions • Restoring trust in civic institutions • Establishing the truth or a common narrative of what occurred in the past • Addressing structural inequalities that exist in a society and establishing a basis to combat them

90 Teitel, Ruti. 2005. “The Law and Politics of Contemporary Transitional Justice.” Cornell International Law Journal 38 (3): 837.

• Demonstrating a society’s concern for human rights to gain favor with international partners • Reforming existing institutions to prevent further atrocities • Repairing or addressing damages caused by the conflict • Paying respect to victims of the conflict

Although this list does not intend to be completely exhaustive, it demonstrates the extensive

range of goals that transitional justice attempts to accomplish. The objectives of transitional

justice are commonly portrayed as “mutually reinforcing and complementary”91 and therefore,

indicative of the multifaceted approach to conflict resolution that transitional justice promotes.

Transitional justice advocates, such as the International Center for Transitional Justice, also

stipulate that transitional justice aims will vary depending on the situational context.

Nonetheless, intense debate remains over what exactly transitional justice should accomplish and

how feasible and compatible those goals are in actuality.

Transitional Justice Mechanisms

The International Center for Transitional Justice articulates four pillars of transitional

justice mechanisms: criminal prosecutions, “truth-seeking,” reparations, and reform.92 Within

those categories, there are numerous established mechanisms that societies can employ, both

judicial and non-judicial, to implement transitional justice. Furthermore, the transitional justice

literature classifies these mechanisms into the categories of “retributive” or “restorative.”

Proponents of retributive justice advocate for systematic punishment of the committed offenses

to come to a solution for past wrongs, whereas those that support restorative justice place higher

91 Leebaw, Bronwyn Anne. 2008. “The Irreconcilable Goals of Transitional Justice.” Human Rights Quarterly 30 (1): 95. 92 “What Is Transitional Justice? | ICTJ.” 2011. International Center for Transitional Justice. February 22, 2011. https://www.ictj.org/about/transitional-justice. 51

importance on reconciliation and forgiveness.93 The following table catalogs are known

transitional justice mechanisms in alphabetical order and should serve as a reference for the

reader throughout the remainder of this thesis:

Transitional Justice Description Mechanism Type Mechanism Legal protections that safeguard designated groups or individuals from criminal prosecution Amnesty for certain crimes; sometimes granted to Judicial, Restorative perpetrators to induce cooperation in other transitional justice mechanisms, such as truth commissions.94 Temporary bodies tasked with investigating allegations of violations against international Commissions of Inquiry law and human rights making recommendations Non-judicial, Restorative for corrective action based on their findings.95

The process of reviewing and restructuring state institutions so that they respect human Institutional Reform rights, preserve the rule of law, and are Judicial/Non-judicial accountable to their constituents.96 (depending on state institution), Restorative Temporary (ad hoc) or permanent courts International Criminal convened for the purpose of deciding cases Judicial, Retributive Tribunals arising under international criminal law.97 Public monuments, such as museums and memorials, that preserve public memory of Memorialization victims and raise moral consciousness about Non-judicial, Restorative past abuse, helping to build a bulwark against its recurrence.98

93 Corradetti, Claudio. 2012. “Transitional Justice and the Truth-Constraints of the Public Sphere.” Philosophy and Social Criticism 38 (7): 687. 94 “Amnesties as a Transitional Justice Mechanism.” n.d. TIMEP. Accessed November 26, 2020. https://timep.org/transitional-justice-project/amnesties-as-a-transitional-justice-mechanism/. 95 “Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice.” 2015. New York and Geneva: United Nations Office of the High Commissioner for Human Rights. https://www.ohchr.org/documents/publications/coi_guidance_and_practice.pdf. 96“Institutional Reform, Including Vetting | ICTJ.” 2011. International Center for Transitional Justice. February 25, 2011. https://www.ictj.org/our-work/transitional-justice-issues/institutional-reform. 97“International Criminal Tribunals.” n.d. LII / Legal Information Institute - Cornell Law School. Accessed September 27, 2020. https://www.law.cornell.edu/wex/international_criminal_tribunals. 98 “Fact Sheet: What Is Transitional Justice?” 2009. International Center for Transitional Justice. 52

Creating publicly visible oversight bodies Oversight within state institutions to ensure accountability Non-judicial, Restorative to civilian governance.99 Measures that are provided by a state, individuals, or group to a victim or victim’s Reparations family members that are meant to provide them with a better future to overcome the enduring Non-judicial, Restorative consequences of the human rights violations they suffered.100 Concerned with punishing perpetrators through prosecuting them under the law101; Can be Trials conducted in an international, national/state- Judicial, Retributive level, local, or hybrid context.

A temporary body that investigates a pattern of past events by gathering information and Truth commission engaging directly with the affected population; Non-judicial, Restorative often empowered by the state to produce a public report on their findings.102 Purging those with a record of human rights Vetting abuses from security forces and other public Non-judicial, Retributive positions.103

Although many past instances of transitional justice involve the implementation of one

mechanism, there is a growing consensus among many scholars and international advocacy

organizations that transitional justice requires a “holistic” approach that consists of “several

measures that complement one another,” as stated by the International Center for Transitional

99 “Institutional Reform, Including Vetting | ICTJ.” 2011. International Center for Transitional Justice. February 25, 2011. https://www.ictj.org/our-work/transitional-justice-issues/institutional-reform. 100 “Reparations & Transitional Justice | ICTJ.” 2011. International Center for Transitional Justice. February 25, 2011. https://www.ictj.org/our-work/transitional-justice-issues/reparations. 101 Doak, Jonathan. 2011. “The Therapeutic Dimension of Transitional Justice: Emotional Repair and Victim Satisfaction in International Trials and Truth Commissions.” International Criminal Law Review 11: 264. 102 Hayner, Priscilla B. 2010. Unspeakable Truths: Transitional Juice and the Challenge of Truth Commissions. London: Taylor & Francis Group, 11 – 12. 103 Hayner, 9. 53

Justice.104 Later sections of this chapter attempt to complicate this premise in transitional justice

activism and scholarship, delving deeper into the tensions that surround the concept's various

mechanisms and alleged goals.

History of Transitional Justice

Although the term “transitional justice” is relatively recent in origin, transitional justice

measures in the modern sense have been implemented by societies throughout history. Forms of

transitional justice were enacted in response to political upheavals as far back as ancient Athens,

but many scholars consider the first instances of modern transitional justice to have taken place

in the mid-twentieth century.105 Ruti Teitel divides transitional justice history into three phases,

based on distinct turning points in world history.106 Phase I lasted from the post-world war period

to the collapse of the Soviet Union and was characterized by interstate cooperation, war crimes

trials, and sanctions. Phase II chronicled the accelerated democratization across the globe after

the Soviet Union’s disintegration, in which international power politics supported transitions of

power in Eastern Europe, Africa, and Central America. While this resembled an internationalism

found in Phase I, Teitel suggests that transitional justice in this period relied on more diverse

rule-of-law understandings tied to local contexts.107 She then states that Phase III came at the

twentieth century’s end when transitional justice became the norm rather than the exception,

finding legitimacy in a continuum between the local and the transnational; this understanding of

transitional justice continues in the present.

104 “Fact Sheet: What Is Transitional Justice?” 2009. International Center for Transitional Justice. 105 Arthur, Paige. 2009. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly 31 (2): 327. 106 Teitel, 2005. 107 Teitel 2005, 840. 54

In response to Teitel, Paige Anderson cautions against falling into the trap of imputing a

conventional, twenty-first-century definition of transitional justice to historical cases, arguing

that actors implementing transitional justice mechanisms would not have described their work as

such before the concept was defined.108 Therefore, she identifies the late-1980s to mid-1990s as

the period when the transitional justice field began to emerge, with well-publicized interactions

between human rights activists, legal scholars and lawyers, policymakers, journalists, donors and

comparative politics experts first bringing recognition to the concept. Anderson posits that the

international political context of the late-1980s – including the global decline of communism and

the popularization of democracy as an end-goal for countries undergoing political change –

shaped the initial understanding of transitional justice as a “transition to democracy.” However,

she concludes that this definition has been tested and expanded over time, as transitional justice

has been applied to different nation-states with “different histories, cultures, and positions in the

world economy.”109

Using both Teitel’s and Anderson’s historical frameworks, I will proceed to explain the

significance of major events in transitional justice history, both relating the events to their

historical-political context and expanding on their implications for the definition of transitional

justice itself. This section does not intend to be an exhaustive list of all the modern transitional

justice case studies that exist, but rather a brief historical narrative that demonstrates the different

understandings of transitional justice and the various conditions that facilitated its

implementation in each case.

108 Arthur, 328. 109 Arthur, 363. 55

1945- 1948: The International Military Tribunal (Germany) and International Military Tribunal for the Far East (Japan)

After the conclusion of the Second World War, the victorious Allied powers established a

series of trials throughout Europe and Asia that sought to prosecute the former political and

military leaders of the defeated Axis powers. Among the most prominent were the International

Military Tribunal (IMT) in Nuremberg, Germany, and the International Military Tribunal for the

Far East (IMTFE) in Tokyo, Japan, the first international military tribunals of its kind.

The IMT was established by the 1945 London Charter, signed by the four major Allied

powers – the United States, France, the Soviet Union, and the United Kingdom; Germany was

not a signatory. The charter specified the rules of the tribunal: each of the four agreement

signatories would provide one judge and supply the prosecution. Most significantly, the charter’s

mandate stated that the IMT had the authority to “punish persons, who, acting in the interest of

the European Axis countries, whether as individuals or as members of organizations” that had

committed crimes against peace, war crimes, and crimes against humanity. The IMTFE had the

same mandate as the International Military Tribunal concerning “Far Eastern war criminals.”110

Unlike the IMT, numerous international agreements made after the war enabled the creation of

the IMTFE, including the Potsdam Declaration that outlined the terms of Japan’s surrender. It

formed at the behest of U.S. General Douglas MacArthur, who also appointed all the judges for

the IMTFE from each of the countries that had signed Japan’s instrument of surrender. In the

end, the IMT and IMTFE respectively found nineteen and twenty-five political and military

leaders guilty of the charges, many on multiple counts.

110 “Milestones: 1945–1952 - Office of the Historian.” n.d. Accessed November 16, 2020. https://history.state.gov/milestones/1945-1952/nuremberg. 56

The post-World War II international military tribunals set numerous precedents in

international criminal justice and, despite taking place before the term “transitional justice” was

invented and popularized, shaped how transitional justice was conceptualized in the following

decades. The tribunals established the principle of individual criminal accountability for human

rights violations perpetrated against civilians during wartime, differing from the notions of

collective guilt and state responsibility that had characterized prevailing international law at the

time.111 However, the tribunals have been criticized as forms of “victors justice” – described by

Richard Minear as the “bias and error in a trial of the vanquished by the victors.”112 Nonetheless,

the most prominent legacy of the tribunals is, as Ruti Teitel observes, “seen in the degree to

which punishment and the law-enforcement model continue to dominate understandings of

transitional justice.”113

1980s – 1990s: The Development of Truth and Reconciliation Commissions in Latin America

Although Teitel claims that the Cold War cut short the impetus for international justice in

the subsequent three decades after the international military tribunals of the Second World War,

Paige Anderson challenges this assumption. Anderson alleges that the tribunals' proponents did

not pursue other standing courts during this time because many of them were former colonial

powers, such as France and Great Britain, that feared their own soldiers would be tried for

violations committed in the colonies. However, with the decline of communism, the end of the

twentieth century ushered in new forms of reckoning with conflict, starting in the countries of

South and Central America. Most of these efforts assisted in the transition from authoritarian

111 Teitel, Ruti. 2006. “Transitional Justice: Postwar Legacies.” Cardozo Law Review 27 (4): 1615–32. 112 Minear, Richard H. 1971. Victors’ Justice: The Tokyo War Crimes Trial. Princeton, New Jersey: Princeton University Press. 113 Teitel 2006, 1620. 57 dictatorships to newly established democratic regimes. In Argentina, the 1976 military coup led by General Jorge Videla incited brutal repression of the opposition, which included mass kidnappings, imprisonment without charges, torture, murder. Three years earlier in Chile, the

Chilean armed forces led by General Augusto Pinochet toppled the democratic socialist government and subsequently detained, tortured, or murdered those who were deemed subversive. Between the 1960s and 1980s, Bolivia, Brazil, Peru, and Uruguay also endured dictatorships that, like in Chile and Argentina, left their countries with a painful legacy of murders, forced disappearances, and various forms of torture. At the same time, El Salvador and

Guatemala endured civil wars between their governments and rebel groups that were characterized by widespread political killings, disappearances, and massacres of civilians.

Though each country’s conflict had its particular circumstances, many were facilitated by the international power politics of the Cold War. Specifically, the United States backed several of the military regimes that had displaced previous left-wing governments or attempted to suppress left-wing movements. However, endeavors to address the consequential human rights violations of these conflicts commenced even before the collapse of the Soviet Union.

Following Argentina’s loss against Great Britain over the Malvinas/Falkland Islands, its military government acquiesced to popular elections and a subsequent return to civilian rule in

1983. Soon after taking office, President Raúl Alfonsín established the National Commission on the Disappearance of Persons (CONADEP), which followed the creation of a National

Commission of Inquiry into Disappearances in Bolivia in 1982. At first, CONADEP’s ability to gain information from perpetrators and military institutions was severely hindered due to actions the military regime had taken to protect itself; it had granted itself amnesty from prosecution and ordered the destruction of incriminating documents before turning over power in 1983. 58

Nonetheless, with the help of human rights organizations, CONADEP still compiled 7,000

statements and documented 8,960 disappeared persons for its final report, Nunca Mas, which

was published after nine months and became the first published truth commission report.114

Efforts continued in following years to further CONADEP’s work in the judicial realm with the

“truth trials” in 1999, which carried out full investigations and publicly identified those

responsible before applying amnesty.115 As of late 2009, 1,400 people had been charged or were

under formal investigation for crimes, with 68 people convicted.116 Kathryn Sikkink and Carrie

Booth Walling claim that CONADEP was “the first important truth commission in the world and

provided a model for all subsequent truth commissions.”117

Other Latin American countries have established transitional justice mechanisms with

varying levels of success. Uruguay was the third country after Argentina and Bolivia to establish

a commission of inquiry in 1985 following the end of its military rule but had a limited mandate

that prevented investigation into many repressive tactics, such as illegal imprisonment or torture.

Chile had more success with its National Commission of Truth and Reconciliation in 1990,

producing an eighteen hundred-page report that contained a “powerful indictment of the

practices of the Pinochet regime, describing the brutality that took place and the response by

domestic and international actors,” as described by Patricia Hayner.118 In 2001, Peru also

established a Truth and Reconciliation Commission, which was the first Latin American truth

commission to hold public hearings, and has made progress in implementing some

114 Hayner, 45 – 46. 115 Hayner, 46. 116 Hayner, 47. 117 Sikkink, Kathryn, and Carrie Booth Walling. 2006. “Argentina’s Contribution to Global Trends in Transitional Justice.” In Transitional Justice in the Twenty-First Century: Truth and Justice, Edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 305. New York: Cambridge University Press. 118 Hayner, 48. 59

recommendations from the commission's nine-volume final report. With El Salvador, Guatemala,

Paraguay, and Ecuador having also instituted transitional justice mechanisms, Latin American

countries account for a substantial portion of existing transitional justice case studies, especially

with regard to truth commissions.

Sikkink and Walling consider Latin American countries to be the “early innovators of

human rights trials as well as truth commissions.” The latter was especially apparent in the cases

of Argentina and Chile, where, according to Naomi Roht-Arriaza, “the model of a ‘truth

commission’ gained force as a ‘second-best’ option where trials were deemed to

destabilizing.”119 Moreover, Latin American transitional justice efforts were indicative of the

“justice cascade” trend at the turn of the twenty-first century, in which democratizing states

throughout the world were beginning to hold individuals, including heads of state, accountable

for their violations of human rights.120 This phenomenon, especially as it pertained to Latin

America, caught the attention of Neil Kritz – who edited the four-volume compendium

Transitional Justice: How Emerging Democracies Reckon with Former Regimes in 1995 that

contributed to among the first uses of the phrase “transitional justice” in academic scholarship.

Analyses of Latin American transitional justice efforts contained in Kritz’s publication

and other international conferences and publications during this period not only gave rise to the

term “transitional justice” but also shaped the initial understanding of transitional justice as a

“transition to democracy.”121 Furthermore, the information gathered in truth commissions

119 Roht-Arriaza, Naomi. 2006. Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, edited by Naomi Roht-Arriaza and Javier Mariezcurrena, 3. Cambridge, UK; New York; Cambridge University Press. 120Sikkink, Kathryn, and Carrie Booth Walling. 2007. “The Impact of Human Rights Trials in Latin America.” Journal of Peace Research 44 (4): 428. 121 Arthur, 330.

warranted the formation of domestic trials in some Latin American countries, popularizing the

notion that societies must use multiple, complementary transitional justice mechanisms to be

effective. Latin American case studies in transitional justice were crucial in forming the first

definitions of transitional justice and imputing a meaning of transitional justice that went beyond

post-World War II criminal justice models. Thus, they continue to provide valuable insight and

precedents for transitional justice efforts in the present.

1995: The South African Truth and Reconciliation Commission

The South African Truth and Reconciliation Commission (TRC) became one of the best-

known instances of transitional justice. After forty-five years of apartheid, South Africans had

suffered massacres, killings, torture, lengthy imprisonment of activists, and severe racial

discrimination against its majority non-white population. Though the idea of a truth commission

in South Africa was proposed previously, substantive discussions over what forms it would take

commenced after Nelson Mandela became president in 1994. After consulting with international

and local civil society actors and hundreds of hours of hearings, the South African parliament

passed the Promotion of National Unity and Reconciliation Act in 1995. While the act

established a legal framework for accountability, it controversially allowed perpetrators of

political violence during apartheid to receive amnesty if they made a full disclosure of their

crimes. The TRC was given a staff of three hundred, a budget of $18 million each year for its

first two and a half years, and given four large offices around the country, dwarfing previous

truth commissions in its size and reach.122

Surrounded by intense media coverage, the TRC took testimony from over 21,000

victims and witnesses, 2,000 of whom also appeared in public hearings. Over 1,000 people were

122 Hayner, 28. 61

granted either amnesty or partial amnesty, which continued to generate controversy throughout

the commission's duration. After releasing the first five volumes of its final report in 1998, the

TRC officially completed its work in 2001 and published the sixth and seventh installments of its

final report in 2003, which included recommendations concerning reparations for victims. While

the commission received international praise, it faced more criticism domestically. Analyses on

the TRC’s transitional justice efforts have concluded that the commission did not necessarily

facilitate racial reconciliation and was hindered by the lack of participation from high-ranking

officials of the apartheid government, which was further compounded by the courts’ lack of

resolve to pursue cases against those who disdained the offer of amnesty for truth.123 Moreover,

the vast majority who applied for amnesty under the act were Black South Africans; few white

South Africans stepped forward.124 In response to the final report, President Thabo Mbeki

announced that the government would compensate victims at one-quarter of the amount

recommended by the TRC, a move that was roundly criticized by victims’ rights organizations.

As one of the most prominent examples of truth commissions, the TRC provided a

blueprint for non-judicial, “restorative” approaches to transitional justice. Truth commissions

came to be viewed as viable alternatives to trials, allowing victims to testify in supportive

settings more conducive to healing and engaging with the nuances of conflict that could not be

resolved in a courtroom that divided the universe into an innocent-guilty binary.125 Furthermore,

according to Bronwyn Anne Leebaw, the TRC “recast the relationship between human rights and

reconciliation, arguing that reconciliation would be an important prerequisite for establishing a

123 Roht-Arriaza, 5. 124 Fletcher, Laurel E., Harvey M. Weinstein, and Jamie Rowen. 2009. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective.” Human Rights Quarterly 31: 185. 125 Roht-Arriaza, 4. 62

regime capable of human rights.”126 Reconciliation now became another goal that transitional

justice aspired towards. However, critiques of the South African approach to truth commissions

arose over time: the commission seemed to prioritize reconciliation over the truth at times, did

not necessarily lead to the creation of a common narrative, had the potential to retraumatize

victims, and did nothing to affect local power relationships.127 Therefore, Naomi Roht-Arriaza

writes that “although other countries emerging from conflict adapted parts of the South African

scheme, none adopted it wholesale.”128

1990s: International Criminal Tribunals in the Former Yugoslavia (ICTY) and Rwanda (ICTJ)

In the 1990s, two major ethnic conflicts in the former Yugoslavia and Rwanda prompted

a return to international criminal justice efforts. Slovenia’s and Croatia’s declarations of

independence from the Republic of Yugoslavia in 1991 incited a war in Croatia that soon spread

to the other Balkans states, after the Serbian-dominated government sent troops to the two states

in response. Bosnia and Kosovo endured some of the worst violence of the conflict, with ethnic

cleansing campaigns against Bosnian Muslims transpiring in the former state. Overall, the wars

resulted in the deaths of over 140,000 people and the displacement of four million.129 In Rwanda,

Belgian colonial policies had consolidated inequalities between the Hutu and Tutsi peoples,

leading to ethnic tensions after independence in 1962. Hostilities between the two groups

culminated in the 1994 assassination of President Juvenal Habyarimana by Hutu extremists,

which led to the slaughter of 800,000 Tutsis and moderate Hutus in the subsequent 100 days. The

genocide concluded in July 1994 with the military victory of the Rwandan Patriotic Front,

126 Leebaw, 105. 127 Roht-Arriaza, 4. 128 Roht-Arriaza, 5. 129“Transitional Justice in the Former Yugoslavia.” 2011. International Center for Transitional Justice. April 25, 2011. https://www.ictj.org/publication/transitional-justice-former-yugoslavia. 63

comprised of Tutsi exiles in Uganda that had launched a previous attack on Rwanda in 1990. By

that point, at least half a million Tutsi, as well as thousands of Hutu, had been killed in the

“world’s fastest genocide.”130

The United Nations Security Council passed resolutions to form the International

Criminal Tribunal of the former Yugoslavia (ICTY) in May 1993 and the International Criminal

Tribunal for Rwanda (ICTR) in November 1994. Created in the middle of the conflict it sought

to address, the ICTY had the authority to prosecute and try individuals on four categories of

offenses: grave breaches of the 1949 Geneva conventions, violations of the laws or customs of

war, genocide, and crimes against humanity.131 The ICTR had a similar mandate to “prosecute

persons responsible for genocide and other serious violations of international humanitarian law

committed in the territory of Rwanda and neighboring States, between 1 January 1994 and 31

December 1994.”132 Both tribunals were located outside their respective conflict zones, with the

ICTY in the Hague, Netherlands, and the ICTR in Arusha, Tanzania. The ICTY indicted 161

individuals, including a sitting head of state in Serbia’s President Slobodan Milošević, and

sentenced 90 of them to various lengths of imprisonment by the tribunal’s closure in 2017.133

The ICTR likewise indicted 93 individuals and sentenced 62 of them by the end of the tribunal’s

operation in 2015.134

130 Waldorf, Lars. 2009. “Transitional Justice and DDR: The Case of Rwanda.” International Center for Transitional Justice. 131 “Mandate and Crimes under ICTY Jurisdiction.” n.d. International Criminal Tribunal for the Former Yugoslavia. Accessed December 1, 2020. https://www.icty.org/en/about/tribunal/mandate-and-crimes- under-icty-jurisdiction. 132 “The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda.” n.d. Accessed December 1, 2020. https://unictr.irmct.org/en/tribunal. 133 “Judgement List.” n.d. International Criminal Tribunal for the Former Yugoslavia. Accessed December 1, 2020. https://www.icty.org/en/cases/judgement-list. 134 “The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda.” n.d. Accessed December 1, 2020. https://unictr.irmct.org/en/tribunal.

The ICTY and the ICTR were the first international criminal tribunals created after the

post-World War II tribunals, reaffirming the importance of accountability as an international

concern and giving new hope that those who committed war crimes would be brought to justice.

According to Naomi Roht-Arriaza, the tribunals “developed important jurisprudence on

genocide, crimes against humanity and war crimes, among other issues.”135 The tribunals also

contributed to the creation of the International Criminal Court in 2002, designed to replace the

need for ad-hoc tribunals. Furthermore, international criminal tribunals were seen as necessary

for these cases in particular; both conflicts sustained violence that would render a truth

commission by itself as inadequate and unnecessary, and the trials individualized responsibility,

which was crucial in theory for holding guilty parties liable without stigmatizing entire ethnic or

religious groups.136 Yet the tribunals did not entirely succeed in the latter objective, as some in

both societies viewed the transitional justice processes as tools for ethnic persecution rather than

individualized punishment, privileging groups that sided with the West over actual justice. The

tribunals also showed accomplishments at an extraordinary cost in monetary and temporal terms.

For example, the ICTR’s work totaled over $43 million USD per case adjudicated but only

amounted to twelve convictions and one acquittal after nine years of existence.137 Moreover, the

tribunals were situated outside the sites of conflict, which undermined their perceived direct

impacts on affected populations. While the ICTY and ICTR sought to improve on the mistakes

of the international criminal tribunals following World War II’s conclusion, they illuminated a

new set of problems when it came to forms of judicial transitional justice dispensed in ethnically-

fragmented societies.

135 Roht-Arriaza, 6. 136 Ibid, 6. 137 Call, Charles T. 2004. “Is Transitional Justice Really Just?” The Brown Journal of World Affairs 11 (1): 105. 65

Due to the limited success of the ICTR in pursuing its mandate, the Rwandan government

embarked on an alternate method for dispensing accountability called gacaca. Kinyarwanda for

“justice on the grass,” gacaca is a judicial process in which the Rwandan public tries and judges

those who wish to confess or have been accused of genocide crimes.138 While gacaca was used

to resolve local disputes over family matters, property rights, and other issues before colonialism,

the gacaca process launched in response to the genocide was regulated, involuntary, and

national, unlike its traditional predecessor. Inevitable concerns surrounded gacaca, including the

impartiality of local judges who were involved in the genocide themselves and the trauma and

lack of protection involved in giving witness testimony. However, Rwanda pioneered a new

form of retributive justice that attempted to address the shortcomings of international bodies by

adopting an indigenous form of conflict resolution for the modern context. Following Rwanda’s

example, transitional justice has developed beyond the truth commission-court bifurcation to

encompass numerous mechanisms that could be adapted for a wide range of contexts since the

turn of the twenty-first century.

Late 1990s – Present: Hybrid and Local Transitional Justice Initiatives

The proliferation of “hybrid” and more localized efforts have characterized a new phase

of transitional justice, striving to address earlier criticisms of past transitional justice efforts. In

her introduction to Transitional Justice in the Twenty-First Century, Naomi Roht-Arriaza

outlines these newer forms of transitional justice:

“In theory, these hybrid institutions can combine the independence, impartiality, and resources of an international institution with the grounding in national law, realities, and culture, the reduced costs, and the continuity and sustainability of a national effort.”139

138 Corey, Allison, and Sandra F. Joireman. 2004. “Retributive Justice: The Gacaca Courts in Rwanda.” African Affairs 103 (410): 73–89. 139 Roht-Arriaza, 10. 66

The Guatemalan Historical Clarification Commission and the Haitian Truth and Reconciliation

Commission in the late 1990s were among the first to use a hybrid model, composed of both

national and international commissioners and staff. Transitional justice efforts in East Timor,

Sierra Leone, Kosovo, and Cambodia followed suit, “combining international and national

authority and staffing in various ways.”140 For example, the Extraordinary Chambers in the

Courts of Cambodia was created in 2001 to address the human rights violations of the Khmer

Rouge regime in the 1970s, using a combination of Cambodian staff and judges together with

foreign personnel and UN-assistance.141 Sierra Leone established both a hybrid court with

backing from the UN – the Special Court for Sierra Leone – and a truth and reconciliation

commission after the conclusion of their civil war in 2002. Hybrid transitional justice

mechanisms seem to be the current preferred transitional justice approach by the UN and other

global governance institutions, proposed for several other countries that have faced conflicts in

recent times, including Sri Lanka.

Hybrid courts in practice have often faced criticism from the local populations they

intend to serve. Jaya Ramji-Nogales contends that “local populations have negative perceptions

of hybrid courts for several reasons: they have not been included in the process of creating the

court; local moral authorities are either explicitly excluded or omitted from the decision-making

of the court; the complex legal concepts and structures are inaccessible to the vast majority of the

population; and locals are disappointed with the scope and pace of the court processes.”142 In

light of this, transitional justice has also been adapted for highly localized settings, making use of

140 Ibid, 10. 141 “About ECCC.” n.d. Extraordinary Chambers in the Courts of Cambodia. Accessed December 2, 2020. https://www.eccc.gov.kh/en/about-eccc. 142 Ramji-Nogales, Jaya. 2010. “Designing Bespoke Transitional Justice: A Pluralist Process Approach.” Michigan Journal of International Law 32 (1): 31. 67

better understood indigenous traditions that are more suitable for community settings. Roht-

Arriaza observes that “transitional justice now reaches down in to the local village or

neighborhood level, and makes use of a number of techniques drawn from or influenced by local

customary law that combine elements of truth-telling, amnesty, justice, reparations, and

apology.”143 She cites the cases of East Timor, where Community Reconciliation Procedures

employ community-level hearings and community-imposed sanctions on perpetrators, and

Rwanda’s gacaca courts, elaborated on in the previous section.144

Recent scholarship has sought to look beyond institutional structures for instances of

transitional justice. For example, Lia Kent suggests that “subtle actions, practices, and tactics

that do not involve direct forms of confrontation between perpetrators and victims” constitute

“everyday reconciliation,” which often gets overlooked by transitional justice advocates.145 She

examines the case of Timor-Leste, where numerous informal social practices facilitate the

transition from conflict to peace, such as the re-establishment of family ties and rebuilding of

homes for reconciliation, and social exclusion and shunning to keep others accountable.146

Kent’s study exemplifies the potential future of the transitional justice field: one which considers

methods that political science or legalist approaches, which tend to dominate existing literature,

do not traditionally utilize. As academic work on transitional justice grows to encompass other

disciplines, such as sociology and psychology, it is hoped that transitional justice in practice can

also develop correspondingly.

143 Roht-Arriaza, 11. 144 Ibid, 11. 145 Kent, Lia. 2018. “Engaging with ‘The Everyday’: Towards a More Dynamic Conception of Hybrid Transitional Justice.” In Hybridity on the Ground in Peacebuilding and Development: Critical Conversations, Edited by Joanne Wallis, et Al., 146. ANU Press. 146 Ibid, 155 – 156. 68

Tensions Between the Various Goals of Transitional Justice

The common notion of transitional justice as a set of mechanisms that aspire to

accomplish multiple, mutually-compatible goals developed over time in response to debates

surrounding transitional justice initiatives in the late twentieth century. The implementation of

single-mechanism approaches, such as the South African Truth and Reconciliation Commission

on the one hand and the international tribunal in the former Yugoslavia on the other, garnered

criticism for their narrow approaches to transitional justice. Criminal prosecutions came to be

viewed as a form of political revenge at worst and enormously expensive and time-consuming at

best. Similarly, truth commissions without supplementary judicial actions seemed to render

victims’ accounts meaningless while reparations without public acknowledgement of the facts

were perceived as “blood money” to pay for victims’ silence.147

To combat this, transitional justice advocates started to promote a more comprehensive

approach. Naomi Roht-Arriaza writes that by the end of the twentieth century, “the debate about

truth versus justice seemed to be resolving in favor of an approach that recognized them as

complementary.”148 She adds that “practitioners and scholars began to speak of a ‘package’ of

measures, of an intertwined set of obligations arising in cases of massive or systematic

violations, composed of truth, justice, reparations and guarantees of non-repetition.”149 As a

result, the mechanisms and aims of transitional justice are assumed to be complementary to one

another in contemporary scholarship. For instance, Pablo de Greiff argues that transitional justice

is a “holistic” notion, specifying that transitional justice mechanisms should be thought of as

parts of a whole and thus implemented in tandem. He contends that “each transitional justice

147 Roht-Arriaza, 8. 148 Ibid, 8. 149 Ibid, 8. 69

measure can be said to pursue goals of its own and may serve more than one immediate aim.”150

To this end, de Grieff abstracts two overall mediate goals – providing recognition to victims and

fostering civic trust – and two final goals – reconciliation and democratization – of transitional

justice.151 Alexander L. Boraine similarly states that “advocating for a holistic approach to

transitional justice, which attempts to complement retributive justice with restorative justice, is

of considerable benefit in the establishment of a just society.”152 Marli Kasdan additionally notes

that while building peace and promoting justice “may seem contradictory…approaches to

transitional justice that emphasize both peace and justice are the most successful in promoting

peacebuilding, stability, and long-term development during post-conflict reconstruction.”153

Global governance organizations, which have been instrumental in institutionalizing

transitional justice as an international norm, also assume that most transitional justice goals are

compatible with one another. A 2004 United Nations report entitled, “The Rule of Law and

Transitional Justice in Conflict and Post-Conflict Societies” states that post-conflict

environments “necessitate an approach that balances a variety of goals, including the pursuit of

accountability, truth and reparation, the preservation of peace and the building of democracy and

the rule of law.”154 It also notes that “where transitional justice is required, strategies must be

holistic” before briefly suggesting that the United Nations should “consider through advance

planning and consultation how different transitional justice mechanisms will interact to ensure

that they do not conflict with one another.”155 The latter concession that transitional justice

150 De Greiff, Pablo. 2012. “Theorizing Transitional Justice.” Nomos 51: 39. 151 De Greiff, 40. 152 Boraine, Alexander L. 2006. “Transitional Justice: A Holistic Interpretation.” Journal of International Affairs 60 (1): 19. 153 Kasdan, Marli. 2018. “Peace or Justice?: Transitional Justice in Sierra Leone.” Cornell Policy Review. April 18, 2018. http://www.cornellpolicyreview.com/transitional-justice-drc-sierra-leone/. 154 “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” 2004. S/2004/616. Geneva: United Nations Security Council. 155 Ibid. 70

mechanisms have the potential to clash, and consequently that transitional justice aims might not

all be mutually reinforcing, merits more discussion, especially given the predominant tendency

to advocate for the implementation of multiple mechanisms in response to a given conflict.

While there is validity to the criticism that single-mechanism transitional justice efforts create

dilemmas that require a multipronged approach, tensions remain over the purported aims of

transitional justice.

Individualizing Guilt and Collective Responsibility

In his first report to the United Nations General Assembly as president of the ICTY,

Antonio Cassese stated, “If responsibility for the appalling crimes perpetrated in the former

Yugoslavia is not attributed to individuals, then whole ethnic and religious groups will be held

accountable for these crimes and branded as criminal.”156 Cassese highlights that a crucial goal

of transitional justice, and especially international criminal justice, is to hold individuals

accountable for their violations of human rights. The individualization of guilt was an idea

pioneered in the tribunals held in Nuremberg and Tokyo after World War II designed to avoid

implicating the entire society for a given conflict, thereby preventing retributive cycles of

violence while deterring future crimes. While most past transitional justice initiatives have

operated under this premise, the individualization of guilt remains in opposition to some of the

other purported purposes of transitional justice, namely unearthing the truth regarding group

complicity in conflict. Erin Daly and Jeremy Sarkin observe that “While it is usually true that not

everyone within a group committed atrocities in the same degree, and therefore not everyone

156 Aptel, Cécile. 2011. “International and Hybrid Criminal Tribunals: Reconciling or Stigmatizing.” In Identities in Transition: Challenges for Transitional Justice in Divided Societies, Edited by Paige Arthur, 172. Cambridge University Press.

should be equally castigated...it is also true that the men and women who get tried rarely acted

alone; they were effective only because they had significant support networks within their

government or organization and within the population at large that stood by and watched.”157

Bronwyn Anne Leebaw elaborates on this point further, noting that individualizing guilt “rests

on the premise that widespread participation in systematic political violence either is or should

be portrayed as, a product of elite manipulation of the masses.”158 She then writes, “The question

as to why large numbers of people became involved in systematic violence is deemphasized in

this formulation. Thus, the goal of 'individualizing guilt' is also in direct tension with the goal of

countering denial regarding widespread complicity in systematic political violence.”159

Past instances of transitional justice have elucidated the tension between individualizing

guilt and assigning collective responsibility for human rights abuses in various ways, especially

in conflicts that have experienced ethnic violence. The ICTR, like the international criminal

tribunals it followed, “explicitly attempted to dispel the collective responsibility of ‘all the

Hutus.’”160 However, the ICTR mostly directed its efforts towards investigating and prosecuting

the crimes committed by Hutus to the exclusion of other groups in actuality, despite Tutsi and

Twas participation of a lesser scale in similar crimes. The ICTR had also been criticized for

failing to publicly implicate the Tutsi-dominated RPF for their responsibility in the genocide,

possibly because the party remains politically dominant in Rwanda.161 In contrast, the ICTY

prosecutors ensured that leaders of each ethnoreligious group would be indicted, a strategy that

157Daly, Erin, and Jeremy Sarkin-Hughes. 2007. Reconciliation in Divided Societies: Finding Common Ground. Philadelphia: University of Pennsylvania Press, 175. 158Leebaw, 110. 159Ibid, 110. 160Aptel, 173. 161“ICTR: Address Crimes Committed by the RPF.” 2008. Human Rights Watch. December 11, 2008. https://www.hrw.org/news/2008/12/11/ictr-address-crimes-committed-rpf. 72

also provoked criticism. In indicting top Kosovo Liberation Army leaders, the ICTY was

accused of “being more inspired by the desire to balance the responsibility among ethnoreligious

or national groups, rather than prosecuting those bearing the greatest level of responsibility.”162

Nonetheless, they also gained a reputation in Serbia for being “anti-Serb,” due to their

disproportionate number of Serbian indictments. Transitional justice efforts in the former

Yugoslavia and Rwanda demonstrate the complexities surrounding attempts to individualize

guilt in instances of ethnic violence, particularly when different ethnic groups do not have a

unified narrative of what exactly transpired during the conflict. The notion that individualizing

guilt reduces ethnoreligious communal tensions does not hold up in practice, and needs to be

reevaluated in future transitional justice processes in multiethnic societies.

Temporal Frames of “Transition”

Ruti Teitel’s definition of transitional justice as a “conception of justice associated with

periods of political change” beckons the question: what constitutes a period of political change?

The literature on transitional justice is mostly silent on this question and ignores the broader

challenge of exactly when transitional justice should be employed. Cynthia Horne writes that

transitional justice has implied temporal parameters that encourage mechanisms to be enacted as

soon as possible after a regime transition, challenging the appropriateness and legitimacy of

delayed measures.163 Laurel E. Fletcher, Harvey M. Weinstein, and Jamie Rowen similarly

observe that the conception of transitional justice as a “standardized tool kit of interventions that

can be applied to different contexts…relies on the assumption that immediate intervention is

162Aptel, 175. 163 Horne, Cynthia M. 2020. “Transitional Justice and Temporal Parameters: Built-In Expiration Dates?” International Journal of Transitional Justice 14 (November): 544–65.

necessary.”164 However, in their study of seven instances of transitional justice, they found that

the ability of a country to address structural aspects of the violence is related to the length of time

that a country has had to undertake such reforms, and further discovered that all the countries

they studied modified their initial transitional justice responses after some time.165 For instance,

Argentina pursued accountability and resumed criminal prosecutions of top junta leaders decades

after the transition from dictatorship to democracy. Nonetheless, the higher likelihood that

transitional justice occurs over the long term can come at a cost to victims that might need

immediate relief and enable regimes to evade culpability in bearing responsibility for their past

actions.

Postcolonial scholars argue that the vague and seemingly narrow temporal frame of

transitional justice does not account for the persistence and legacies of structural colonial

violence. Sarah Maddison and Laura J. Shepherd write:

“The field of transitional justice tends to separate historical conflict from contemporary transition, which renders consideration of colonial power outside of the remit of transitional justice, both in theory and in practice. While similarities between historical and recent conflict are often acknowledged, remedies available under the transitional justice framework are only infrequently applied to the historical injustice that is inherent to colonization.”166

Many conflicts that necessitate transitional justice are rooted in a colonial history that might have

contributed to the existence of that conflict in the first place by creating communal identities and

stripping indigenous communities of land and rights. In responding only to the atrocities

committed within the span of the conflict itself, transitional justice can neglect to confront these

structural problems stemming from colonialism, thereby preserving the status quo and failing to

164 Fletcher, Weinstein, and Rowen, 170. 165 Ibid, 206. 166 Maddison, Sarah, and Laura J. Shepherd. 2014. “Peacebuilding and the Postcolonial Politics of Transitional Justice.” Peacebuilding 2 (3): 254.

facilitate meaningful transformation in a given society. Moreover, the distinction is arbitrary

between recent atrocities and a colonial past in certain instances, such as dealing with aboriginal

rights in Australia and Canada or systemic racism against Black and Native Americans in the

United States. Expanding the temporal scope of transitional justice in instances where

colonialism and imperialism factored into the conflict’s grievances can allow a society to

recognize and contend with the root causes of that conflict.

International Legal Norms and Local Contexts

Debates on transitional justice are often framed using abstract concepts, which can

overlook realities on the ground. Laurel E. Fletcher, Harvey M. Weinstein, and Jamie Rowen

write, “One possible critique of transitional justice policy and its implementation is that it is

usually ahistorical or decontextualized. Debates around such issues as truth versus justice, trials

versus truth commissions, and remembering versus forgetting frequently treat these concepts as

abstract and universal principles.”167 Fletcher, Weinstein, and Rowen articulate a glaring

problem in many previous applications of transitional justice: a failure to consider historical and

contextual factors particular to the conflict that might significantly influence transitional justice

policy outcomes. Phuong Pham and Patrick Vinck also observe that “despite an emerging

consensus that transitional justice policies must take into account the local context, including

culture, economic factors, and political influences, local communities are rarely consulted to

inform the design, implementation, and evaluation of such policies.”168 Pham and Vinck do not

just critique transitional justice policies but also those who implement them, highlighting the

tension between the practitioners and advocates of international legal norms – who, in many

167Fletcher, Weinstein, and Rowen, 208. 168 Pham, Phuong, and Patrick Vinck. 2007. “Empirical Research and the Development and Assessment of Transitional Justice Mechanisms.” The International Journal of Transitional Justice 1: 232. 75

cases, also tend to formulate and help enact transitional justice policies – and the local

populations these policies are designed to affect. Rosalind Shaw and Lars Waldorf best specify

the international-local priorities paradox that transitional justice efforts must confront:

“Increasingly, visible signs of ‘the local’ are incorporated into transitional justice by adapting

customary law processes and by involving local NGOs and local elites. Yet local experiences,

needs, and priorities often remain subsumed within international legal norms and national

political agendas.”169 In sum, although transitional justice efforts are shifting toward more

engagement with local populations, survivors of conflicts are unlikely to get what they ask for if

it contradicts international legal norms.170 Shaw and Waldorf underscore another potentially

conflicting set of goals that transitional justice promotes in both adhering to international law

while factoring in local contexts.

Conventional conceptions of transitional justice organize its implementations into

different levels, frequently eliciting the debate surrounding the compatibility of international

legal norms with local contexts. Transitional justice interventions have occurred at the

international, national, and local levels, with more recent approaches adopting a “hybrid” model

of combining different levels. Scholars have identified positive and negative effects of each of

the levels – international transitional justice efforts are seen as more capable of handling matters

of accountability when national governments fail to do so, whereas local engagements are

perceived as better equipped to address the direct needs of those affected by the conflict.

However, Mark Goodale problematizes the use of “levels” to characterize different forms of

transitional justice as it “obscures the fact that no location in the world exists in detachment from

169 Shaw, Rosalind, editor, Lars Waldorf editor, and Pierre Hazan editor. 2010. Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford, California: Stanford University Press, 4. 170 Ibid, 4. 76

national and global processes.”171 Lia Kent’s study of Timor-Leste supports Goodale’s

hypothesis, as she observes that “the everyday reconciliation tactics of ordinary Timorese are

necessarily entangled with, and constrained by, broader structural and geopolitical dynamics.”172

Therefore, one must acknowledge that all transitional justice efforts are not insulated from either

international legal norms or local contexts, and each particular circumstance must evaluate areas

of compatibility and tension between international law and local customs.

International Legal Norms, Postcolonial Societies, and Ethnoreligious Divisions

In line with the arguments presented in the previous section, tension exists between

transitional justice’s reliance on international legal norms, shaped by liberal Western values, and

the impact those norms have in societies affected by colonial rule and imperialism. Bronwyn

Anne Leebaw states that transitional justice scholarship, particularly on the international criminal

tribunals, “assumed that international laws and institutions would widely be accepted as

legitimate and neutral.”173 Khanyisela Moyo expands on Leebaw’s observation further:

“In the passage from war/authoritarianism to a democratic regime, international law which is presumed to be detached from the actors in the conflict plays a crucial role of relegitimating the domestic legal system which is likely to be suffering from a crisis of legitimacy.”174

However, Moyo subsequently notes that postcolonial legal theorists view the use of international

law in transitional justice as “one of the masculine human rights strategies that are reminiscent of

imperial intervention in the lives of postcolonial subjects.” Rosemary Nagy also comments that

in a post-9/11 world, “transitional justice may increasingly be shaped by 'the appropriation of the

171 Ibid, 6. 172 Kent, 160. 173 Leebaw, 103. 174 Moyo, Khanyisela. 2012. “Feminism, Postcolonial Legal Theory, and Transitional Justice: A Critique of Current Trends.” International Human Rights Law Review 1: 239. 77

language of ‘transition’ and ‘democratization’ in furtherance of an apparently global project [that

has] few effective international legal constraint.”175 In determining when, to whom, and

for what transitional justice applies, Nagy finds that transitional justice is usually employed by

the Western-led international community after direct mass violence is brought to a halt in non-

Western, developing societies to address gross violations of civil and political rights or criminal

acts. This approach neglects the structural violence and inequalities that persist during and after

conflict and deflects responsibility from the powerful Western countries responsible for

perpetuating those conflicts in the first place through colonial rule or foreign intervention.

Moreover, the use of international legal norms by Western countries to justify the reconstruction

of a less powerful society can constitute as victor’s justice.176 Therefore, Leebaw, Moyo, and

Nagy all suggest that it is problematic to assume that the international legal norms that

transitional justice operates with are universally legitimate, especially in societies still reeling

from colonialism and imperialism.

The most prominent example of this tension in transitional justice has been Iraq after a

U.S.-led invasion toppled Saddam Hussein and his ruling Ba’ath party in 2003. After failing to

offer a credible explanation for their invasion of Iraq, the United States and its coalition partners

used the human rights atrocities and the democratic deficit of Saddam Hussein’s regime to justify

the war and transitional justice mechanisms implemented under the US-led Coalition Provincial

Authority.177 One transitional justice process pursued in Iraq under U.S. occupation was de-

Ba’athification, a form of vetting that disbanded the Iraqi security forces, removed top echelons

of Ba’ath party members from state institutions, and banned them from future employment. As

175 Nagy, Rosemary. 2008. “Transitional Justice as Global Project: Critical Reflections.” Third World Quarterly 29 (2): 276. 176 Moyo, 267. 177 Moyo, 266. 78

Rosemary Nagy notes, transitional justice mechanisms were put in place to teach Iraqis – and not

the United States and its allies – about the rule of law and human rights. Ignoring the illegality of

the foreign intervention, the human rights abuses committed by American soldiers at Abu Gharib

and elsewhere, and the damage caused by the corrupt United Nations oil-for-food program,

transitional justice shifted responsibility away from the actions of the United States and their

allies to the perceived “psychological immaturity of the Iraqi people,” according to David

Chandler. The Coalition Provincial Authority’s attempted transitional justice in Iraq

demonstrated how asymmetrical power relationships between states have the potential to absolve

powerful, Western states from culpability and leave international legal norms subject to their

appropriation to maintain their geopolitical standing.

Regarding de-Ba’athification and other transitional justice policies pursued by the

Coalition Provincial Authority, Mieczyslaw P. Boduszynski writes that “general consensus

among Iraqis and outsiders is that they had a devastating effect on everything from public

services to crime, unemployment, and security.”178 Additionally, she notes that “Sunnis were

disproportionately affected by de-Ba’athification…this led to deep feelings of

disenfranchisement and alienation among Sunnis and a sense they were not welcome in the new

Iraq.”179 The impact of de-Ba’athification on Sunni resentment continued in the following

decade with the rise of the Islamic State in Iraq, which was consequently able to take over Sunni

towns and cities with relative ease in 2014.180 Therefore, Iraq’s transitional justice processes

178 Boduszyński, Mieczysław P. 2019. “Chapter 8: Navigating the Narrow Spaces for Transitional Justice in Iraq.” In New Critical Spaces in Transitional Justice: Gender, Art, and Memory, 181. Indiana University Press. 179 Ibid, 182. 180 Zucchino, David. 2017. “As ISIS Is Driven From Iraq, Sunnis Remain Alienated (Published 2017).” The New York Times, October 26, 2017, sec. World. https://www.nytimes.com/2017/10/26/world/middleeast/iraq- isis-sunni.html. 79

additionally demonstrate that political transformation through transitional justice can be viewed

not as an impartial process to foster truth, accountability, democracy, and reconciliation but

rather on ethnoreligious terms, benefiting one ethnic or religious group over others. The ICTY

also faced challenges to its legitimacy by substantial populations in the countries of the former

Yugoslavia. Marko Milanović demonstrates through public survey data that one’s ethnic identity

determines one’s perception of the ICTY – ethnic Croats and Serbs exhibited strong levels of

disapproval of the ICTY while Bosniaks and the Albanians had a favorable view of the tribunal,

since its findings largely validated their worldviews.181 Though these attitudes regarding the

tribunal have not necessarily upended stability for those living in the Balkans states in the same

manner as Iraq, there are still consequences: popular support for Slobodan Milošević remained

high in Serbia during the course of the tribunal, whereas Prime Minister Zoran Đinđić paid for

his open cooperation with the tribunal with his life.182 Both Iraq and the Balkans demonstrate

that in multiethnic societies, transitional justice can be perceived as communally-motivated.

Since both the Coalition Provisional Authority and the ICTY were reliant on international

intervention, it indicates that ethnoreligious tensions can be exacerbated when certain ethnic or

religious groups have backing from the regional or international actors advocating for

transitional justice in the first place. It is also important to note that in many societies, opposing

communal identities were constructed during periods of imperialism and colonial rule, as

demonstrated in the previous chapter. Thus, the practice and objectives of transitional justice are

not accepted as legitimate by many populations in postcolonial societies; this will be explored

181 Milanovic, Marko. 2016. “The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem.” The American Journal of International Law 110 (2): 253. 182 Teitel, Ruti 2005, 846. 80 further when chronicling both the domestic and geopolitical conditions for transitional justice in

Sri Lanka.

Looking Ahead

Although this chapter has outlined only a portion of the many debates and gaps existing within the broader transitional justice literature, it focuses on these particular questions because each has specific implications for a transitional justice framework in Sri Lanka. The final chapter and the conclusion of this thesis will reference the debates narrated in this chapter and ground them in the current realities that Sri Lanka faces in both the domestic and geopolitical realms.

Chapter 3 – Past Case Studies and Contemporary Factors for Transitional Justice in Sri Lanka

Given the context provided previously about the Sri Lankan civil war and transitional justice, this chapter will directly confront the initial question outlined at the beginning of this thesis: under what conditions would transitional justice mechanisms be used to address the grievances of the Sri Lankan civil war? After chronicling past attempts at transitional justice in

Sri Lanka, I present a two-fold argument on what conditions would impact the implementation of transitional justice in Sri Lanka: Domestically, the country’s current political structures have facilitated a majoritarian consciousness amongst the Sinhalese Buddhist population, who view transitional justice as dispensing collective responsibility on them for the war’s grievances rather than an impartial process to pursue accountability, truth, and reconciliation on both sides. The current administration’s embrace of Sinhala Buddhist nationalism to that end has also brought the country closer to China geopolitically – an ally that will not exert international pressure to ensure Sri Lanka follows through on its commitments towards attaining transitional justice objectives. In addition to referencing publicly available sources, the following analysis also includes quotations from my interviews with Sri Lankan civil society actors, human rights activists, and ordinary citizens, whom I kept anonymous to maintain their privacy. Referenced figures are included at the end of this chapter.

Commissions of Inquiry Before and During the War

Over the past few decades, successive governmental administrations have created commissions of inquiry to respond to some of the war’s grievances, as outlined in the first chapter. These commissions were established under the Presidential Commission of Inquiry Act

No. 17, which intended to provide the executive with a mechanism to initiate inquiries into the 82

administration of public departments, offices, or agencies or allegations of misconduct by public

servants.183 Despite the Act's original mandate, many Sri Lankan presidents formed commissions

of inquiry when under pressure to address human rights abuses. As the Act was broadly worded

and granted far-reaching executive powers, commissions of inquiry served as a tool for

presidents to retain control of the proceedings and outcome of the commissions under the guise

of pursuing accountability. For instance, the Lessons Learnt and Reconciliation Commission,

created by Mahinda Rajapaksa’s government in 2010 to examine the war’s grievances since the

collapse of the 2002 ceasefire and promote reconciliation, largely exonerated the government

and security forces from any wrongdoing in the last months of the war. The commission’s report

concluded that “the military strategy that was adopted to secure the LTTE-held areas was one

that was carefully conceived, in which the protection of the civilian population was given the

highest priority,” despite evidence to the contrary.184

Other concerns have marred the credibility of the commissions of inquiry as genuine

transitional justice mechanisms. Many of the commissions’ reports were never made public,

which raised further concerns regarding their suitability as truth-telling initiatives aimed at

reconciliation.185 Furthermore, many used the commissions as tools to launch partisan attacks on

political opponents, compromising their supposed independence. Despite their shortcomings,

some managed to secure some monetary compensation for victims and their families. The

Commission of Inquiry into the Involuntary Removal or Disappearance of Persons, established

183 “Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry.” 2009. ASA 37/005/2009. Amnesty International, 9. 184 “Statement on the Report of Sri Lanka’s Lessons Learnt and Reconciliation Commission.” 2011. International Crisis Group. https://www.crisisgroup.org/asia/south-asia/sri-lanka/statement-report-sri- lankas-lessons-learnt-and-reconciliation-commission. 185 Fonseka, Bhavani. 2017. “Truth Telling in Sri Lanka: Past Experiences and Options for the Future.” In Transitional Justice in Sri Lanka: Moving Beyond Promises. Centre for Policy Alternatives, 205. 83

by President Chandrika Bandaranaike Kumaratunga in 1994 following her election, awarded

financial reparations to the families of a number of victims listed in the final reports, even though

victims’ advocates expressed frustration at the small sums paid and the slow implementation of

the program.186 In a report published after the war’s conclusion, Amnesty International

concluded that the commissions of inquiry “have been set up in order to stem public outcry

rather than with the intention of bringing those responsible to justice, and have produced no

known results.”187

2015 – UN Resolution 30/1: Promoting reconciliation, accountability, and human rights in Sri Lanka

Context

In the 2015 elections, Mahinda Rajapaksa unexpectedly lost his bid for a third

presidential term to Maithripala Sirisena, a former ally of Rajapaksa. Since first winning the

presidency in 2005, Mahinda Rajapaksa had been triumphed by many, especially in the

Sinhalese Buddhist community, for defeating the LTTE, boosting the economy, and restoring the

country to normalcy after the war’s conclusion. However, others criticized Rajapaksa for his

increasingly authoritarian tendencies and corruption. The elections also produced higher turnout

from Tamil and Muslim constituencies as Sirisena received assurances of support from Tamil

and Muslim political leaders. Nonetheless, Charles Haviland of the BBC maintained that those

votes were not for Sirisena as much as they were against Rajapaksa due to his past majoritarian

policies that marginalized minority communities in the country.188 Sirisena, running as a

186 Hayner, Priscilla B. 2010. Unspeakable Truths: Transitional Juice and the Challenge of Truth Commissions. London: Taylor & Francis Group, 248. 187 Amnesty International 2009, 11. 188 BBC News. 2015. “Sri Lanka’s Rajapaksa Suffers Shock Election Defeat,” January 9, 2015, sec. Asia. https://www.bbc.com/news/world-asia-30738671. 84

candidate from the 2010-formed New Democratic Front, won 51.28% of the vote. Receiving

support from the United National Party-led coalition, he appointed UNP leader Ranil

Wickremesinghe as Prime Minister and promised to embark on extensive domestic and foreign

policy reforms.

Sirisena ran on a platform that criticized Rajapaksa's close political and economic

relationship with China. At the time of the election, Sri Lanka had incurred massive debt to

China due to several infrastructure projects pursued by the Rajapaksa administration, funded by

loans and other financial assistance from Chinese state-owned companies. Thus, Sirisena’s pre-

election manifesto stated that “Sri Lanka is a country with excessive state debt and a dangerous

proportion between loan repayment and state revenue."189 It then declared that the new

administration would "prevent the appropriation by foreign states or companies of strategic

locations that endanger the economic security of Sri Lanka.”190 Upon entering office, Sirisena

initially suspended all Chinese investment projects and attempted to engage in closer foreign

relations with India, the United States, and other Western countries. To fulfill the latter objective,

the Sirisena government needed to address concerns from those nations on Sri Lanka’s human

rights record during and after the civil war. It was under this context that Sri Lanka cosponsored

UN Human Rights Council Resolution 30/1 in October 2015, passed only a few months after

Sirisena was sworn in as president.

Terms of the Resolution

The five-page long resolution contained proposals for several transitional justice

mechanisms to be implemented in Sri Lanka, including a commission for truth, justice,

189 Sirisena, Maithripala. 2015. “New Democratic Front Manifesto 2015: A Compassionate Maithri Governance.” https://groundviews.org/wp-content/uploads/2014/12/MS-2015.pdf. 190Ibid. 85

reconciliation, and non-recurrence, an office of missing persons, and an office for reparations.

The resolution embodied the notion of transitional justice as a set of mechanisms with mutually

reinforcing, complementary goals, as outlined and explored in the previous chapter. Operative

clause six encompassed the most contentious aspect of the resolution, which welcomed the Sri

Lankan government’s alleged plan to “establish a judicial mechanism with a special counsel to

investigate allegations of violations and abuses of human rights and violations of international

humanitarian law.”191 The clause also affirmed, “that a credible justice process should include

independent judicial and prosecutorial institutions led by individuals known for their integrity

and impartiality.”192 Thus, it recommended the participation of the special counsel’s office,

Commonwealth and other foreign judges, defense lawyers, and authorized prosecutors and

investigators. While the resolution subsequently encouraged the government to enact reforms

concerning domestic law and the security sector, some commentators observed that it did not

address the country’s militarization comprehensively enough.193 The Tamil National Alliance,

Sri Lanka’s principal Tamil political coalition, and the Sri Lanka Muslim Congress endorsed the

resolution, along with the Global Tamil Forum, who expressed cautious optimism for the

resolution’s promises. As expected, the measures generated criticism from some within the

country that claimed it amounted to excess foreign intervention and violated the country’s

sovereignty. Nonetheless, the resolution appeared to constitute a landmark first step in applying

transitional justice measures in response to the atrocities of the civil war.

191 “Resolution 30/1: Promoting Reconciliation, Accountability and Human Rights in Sri Lanka.” 2015. United Nations Human Rights Council. https://documents-dds- ny.un.org/doc/UNDOC/GEN/G15/236/38/PDF/G1523638.pdf?OpenElement. 192 “Resolution 30/1: Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, 2. 193 Dibbert, Taylor. 2015. “The UN Human Rights Council Resolution on Sri Lanka Is Tabled.” The Diplomat. September 28, 2015. https://thediplomat.com/2015/09/the-un-human-rights-council-resolution-on-sri- lanka-is-tabled/. 86

Implementation and Aftermath

Although the Sri Lankan government appeared to signal its intent to follow through on its

commitments internationally in two subsequent UNHRC resolutions in 2017 and 2019, it

reneged on some of its promises domestically. Soon after the initial resolution in 2015 passed,

President Sirisena asserted that the judicial mechanism would be “completely domestic,” which

ruled out the possibility of a special hybrid mechanism involving foreign judges.194 Nonetheless,

the government appointed a Consultations Task Force on Reconciliation Mechanisms composed

of prominent civil society members, which consulted with various stakeholders in the conflict to

give recommendations on how to implement the UN report in 2016. The task force’s final

recommendations ironically, given President Sirisena’s previous remarks, included the

establishment of a hybrid court with a majority of national judges and at least one international

judge per bench, as well as the restitution of land held by the military, the publication of the list

of all detainees, and detention centers, the repeal of the Prevention of Terrorism Act195 and the

immediate release of persons held under the Act without charge. Following long delays, the

government established the Office of Missing Persons, tasked with collecting data related to

those who disappeared during the war and providing compensation for their families, in

September 2017 after parliament adopted legislation for its creation. While plans for a reparation

scheme fomented into an Office for Reparations in 2019, controversy ensued over the office's

ability to assess whether the beneficiary of compensation had suffered from a violation of human

rights or humanitarian law. Conversely, proposals for a truth and reconciliation commission

194 “Sri Lanka Rights Abuse Probe to Be ‘Completely Domestic’: Sirisena.” 2015. Hindustan Times. October 3, 2015. https://www.hindustantimes.com/world/sri-lanka-rights-abuse-probe-to-be-completely-domestic- sirisena/story-psDBEyfX3JJxA8Ooj0QmDP.html. 195 The Prevention of Terrorism Act was passed in 1979 and gives the police and security forces broad powers to search, arrest, and detain individuals.

never materialized. Accordingly, a 2019 United Nations report detailing the government’s

progress on fulfilling its promises stated, “Although steps have been taken in institution-building

[such as the adoption of legislation, the recruitment, and training of staff and the identification of

office space] …they have yet to produce concrete benefits for individual rights holders.”196

While the Office of Missing Persons and Office of Reparations made some strides in

addressing their respective mandates in 2019, the Easter Sunday terrorist attacks of April 2019

reversed the already little progress made concerning transitional justice. The Easter Sunday

terrorist attacks occurred on April 21, 2019, when nine suicide bombers launched explosives in

six locations: three churches in the outskirts of Colombo, Negombo, and Batticaloa and three

luxury hotels in the capital city. Sri Lankan authorities claimed that the local Islamist group

National Thowheed Jamath (NTJ) was behind the attacks, but the Islamic State also claimed

responsibility. A responding parliamentary inquiry concluded that political tensions between

President Sirisena and Prime Minister Wickremesinghe created intelligence sharing delays that

resulted in top government officials ignoring information received about a possible attack. Public

frustration at the perceived incompetence of the Sirisena administration to prevent the deaths of

more than 250 people amounted to a renewed focus on “national security,” according to a United

Nations report.197 This hindered the progress of enacting Resolution 30/1’s reforms, stalling the

development of a comprehensive truth and reconciliation and a replacement bill for the

Prevention of Terrorism Act, and increasing the harassment of religious minorities, civil society

organizations, and human rights advocates. In November 2019, former defense secretary and

brother to Mahinda Rajapaksa, Gotabaya Rajapaksa, won the presidency by a margin of ten

196 “Promoting Reconciliation, Accountability and Human Rights in Sri Lanka: Report of the Office of the United Nations High Commissioner for Human Rights.” 2019. A/HRC/40/23. United Nations Human Rights Council. 197 Ibid. 88

percentage points. As the alleged architect of the government’s brutal counterinsurgency in the

final months of the war, Rajapaksa campaigned on a platform advocating for an increased return

to national security efforts, jeopardizing the United Nation’s efforts to implement transitional

justice measures to address the civil war. As will be elaborated on later in this chapter,

Rajapaksa’s promotion of “national security” implicitly signaled his endorsement of Sinhalese

Buddhist nationalism, which would have irreparable consequences for future transitional justice

efforts.

In February 2020, the Sri Lankan government announced that it would be withdrawing

from all three UN resolutions regarding its transitional justice process. Claiming that the

measures infringed on the sovereignty of people in Sri Lanka and violated the basic structure of

the Constitution, the statement from the Foreign Ministry on the matter suggested that the

previous administration’s decision to co-sponsor Resolution 30/1 in particular “eroded Sri

Lankans’ trust in the international system and the credibility of Sri Lanka as a whole in the eyes

of the international community.”198 Even a month earlier, President Gotabaya Rajapaksa had

declared that the over 20,000 people still missing from the civil war would formally be declared

dead and that death certificates would be issued accordingly. President Rajapaksa doubled down

on his stance by declaring that Sri Lanka would withdraw from any international organization

that continually “targets” the military with allegations of human rights violations during its civil

war a few months later.199 In response to these developments, the Office of the High

Commissioner for Human Rights released a report in January 2021 urging “international action”

198 “43rd Session of the Human Rights Council – High Level Segment Statement by Hon. Dinesh Gunawardena, Minister of Foreign Relations of Sri Lanka.” 2020. Ministry of Foreign Affairs, Sri Lanka. February 26, 2020. https://mfa.gov.lk/43rd-session-hrc/. 199 Francis, Krishan. 2020. “Sri Lanka Threatens to Leave Int’l Organizations over Rights.” AP News. May 19, 2020. https://apnews.com/article/63c302b2f90a5869859ce499fe0b767f. 89

against alleged perpetrators of human rights violations during the war, including those appointed

to government posts by President Rajapaksa. The report also hinted at the possibility of referring

Sri Lanka to the International Criminal Court. In March 2021, the UN Human Rights Council

passed Resolution 46/1, which established a dedicated new capacity within the Office of the UN

High Commissioner for Human Rights “to collect, consolidate, analyze and preserve information

and evidence” of human rights violations committed during the war, and “to advocate for victims

and survivors, and to support relevant judicial and other proceedings, including in Member

States, with competent jurisdiction.”200 Despite the resolution’s adoption, members of the Sri

Lankan government spun the vote as a victory, given the 22 countries that had voted in favor

were outnumbered by those who abstained or voted against the resolution.201 Demonstrating few

indications of actually cooperating with the resolution’s terms, the current government has

created an impasse for present and future transitional justice efforts.

Domestic Conditions for Transitional Justice

As argued in the previous chapter, it is difficult for transitional justice to individualize

guilt when group-wide complicity in violence is perceived, as is often the case with ethnic

conflict. Transitional justice in Sri Lanka is currently hindered by this domestic reality, as efforts

to pursue truth and accountability are conflated with punishing the Sinhala Buddhist population

as a whole. To chronicle these developments, I first historicize and describe the current political

structures of Sri Lanka: a unitary state modeled off the governmental systems present in British

colonial Ceylon, which has politically incentivized the proliferation of a Sinhala Buddhist

200 “Sri Lanka: Landmark UN Resolution Promotes Justice.” 2021. Human Rights Watch. March 25, 2021. https://www.hrw.org/news/2021/03/25/sri-lanka-landmark-un-resolution-promotes-justice. 201 “India Abstains From Voting on UNHRC Resolution Critical of Sri Lanka.” 2021. The Wire. March 23, 2021. https://thewire.in/diplomacy/india-abstain-vote-unhrc-resolution-critical-sri-lanka.

majoritarian consciousness at the expense of the rights and livelihoods of minority ethnic and

religious communities on the island.

Current Political Structures and Ethnoreligious Majoritarianism

The process of consolidating the unitary state commenced during colonial rule. The

Donoughmore Constitution, which had abolished communally based representation in the

Legislative Council and established a unicameral legislature in 1931, first promulgated the

Western, liberal model of treating citizens as individuals in the Sri Lankan context. The Colonial

Secretary remarked, right before its expiration in 1947, that the Donoughmore Constitution had

been an “experiment in adult suffrage and responsible democracy, and it contributed much to the

political maturity and drive for effective democracy of the people in Ceylon.”202 Conversely,

numerous contemporary scholars have linked the Donoughmore Constitution to the start of

Sinhalese dominance in politics.203 While the Donoughmore Constitution rejected communal

representation, it did not contain any safeguards against communalism, which had already begun

to form in response to colonial policies and colonial understandings of group identities. The

constitution enabled those with the numerical majority on the island – the Sinhalese – to gain

more political control than in previous times and reduced the electoral power of minority groups

such as Tamils and Muslims. After the Donoughmore Constitution, the Soulbury Constitution

that governed a newly independent Ceylon adopted a British Westminster-style model of

centralized government, which again assumed that citizens would function as individuals without

concern for communal identities. Though the Soulbury Commission that drafted the constitution

202 Kumarasingham, H. 2014. “Elite Patronage over Party Democracy - High Politics in Sri Lanka Following Independence.” Commonwealth and Comparative Politics 52 (1): 171. 203 Wickramasinghe, Nira. 2010. “Sri Lanka’s Independence: Shadows over a colonial graft.” In Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka, and Nepal, Edited by Paul R. Brass, 42. 91

received submissions to adopt some protections to safeguard the rights of minority populations,

two assumptions by the British prevented this. As mentioned in the first chapter, many expected

that minority communities constituted a large enough bloc to challenge majoritarian

initiatives.204 Moreover, the British also believed that they had cultivated a local, Westernized

elite that had a “cognizance and affectation of British culture [that] would mitigate the paucity of

political appreciation amongst the Sri Lankans of the efficient operation of Westminster

institutions.”205 Therefore, the Soulbury Constitution was left with one clause, Article 29(2), that

ensured the equality and nondiscrimination of all citizens. Nevertheless, the first political

structure of Sri Lanka – a first-past-the-post electoral system without a bill of rights, a strong

independent judiciary, or other arrangements to ensure communal rights, representation, and

power-sharing – could not avoid succumbing to Sinhalese politicians seeking to advance

majoritarian policies for political gain.206

The Soulbury Constitution and subsequent constitutional and institutional arrangements

solidified the unitary state and enabled the proliferation of a Sinhalese majoritarian

consciousness. The political structure created by the Soulbury Constitution resulted in Sinhalese

politicians controlling over eighty percent of parliamentary seats in the 1956 elections, enabling

S.W.R.D. Bandaranaike’s government to pass the Sinhala-Only Act, which further embedded

Sinhalese Buddhist dominance in government institutions and the public sector. Although

originally championed by just the Sri Lanka Freedom Party, the Sinhala-Only Act also received

eventual support from the United National Party to attract more Sinhala voters in future

204 Wickramasinghe, 45. 205 Kumarasingham, 173. 206 Stokke, Kristian. 2012. “Liberal Peace in Question: The Sri Lankan Case.” In Liberal Peace in Question: Politics of State and Market Reform in Sri Lanka, Edited by Kristian Stokke and Jayadeva Uyangoda. Anthem Press, 6.

elections. Despite the Sinhala-Only Act’s partial repeal in 1958, the 1972 Constitution of Sri

Lanka less than two decades later also accorded Sinhala Buddhism special status and state

patronage. While the UNP-backed 1978 Constitution of Sri Lanka attempted to transition from

the Westminster-style parliamentary system to a Gaullist-style presidential government and

reverse some of the Buddhist-forward reforms of the previous constitution, it aimed to fulfill the

latter objective through a guaranteed arrangement of individual-based fundamental rights. Nira

Wickramasinghe writes that “the underlying assumption of [the constitution’s] makers was that

this would be sufficient to address the question of rights of all citizens irrespective of the

community they belonged to.”207 However, despite the constitution’s egalitarian promise, the

UNP government under President J.R. Jayewardene continued to champion Buddhism in several

state institutions: the Ministry of Cultural Affairs was exclusively concerned with Sinhala and

Buddhist matters, the Department of Buddhist Affairs received state patronage, and President

Jayewardene consulted with the monkhood when his government was attempting to pursue a

plan of devolution of power to District Councils in the early 1980s.208 Thus, Neil DeVotta argues

that Sri Lanka’s political structure since independence has incentivized “ethnic outbidding,”

wherein Sinhalese politicians between the two main parties competed to “outbid” each other on

who could provide the better deal for the Sinhala community.209 DeVotta further remarks:

“A political structure that encouraged polyethnic coalitions would most likely elicit ethnic coexistence, while one that encouraged competition between ethnic parties would likely engender ethnic outbidding. This is because the former typically creates divisions that are ideological as opposed to being ethnic related…one group (can) solely create and institute the rules of the game and thereby entice ‘communally based political

207 Wickramasinghe, Nira. 2014. “Citizens, Communities, Rights, Constitutions, 1947 - 2000.” In Sri Lanka in the Modern Age: A History, 194. Oxford University Press. 208 Ibid. 209 DeVotta, Neil. 2005. “From Ethnic Outbidding to Ethnic Conflict: The Institutional Bases for Sri Lanka’s Separatist War.” Nations and Nationalism 11 (1): 141–59. 93

entrepreneurs [to] seek to increase the salience of communal issues and then to outbid the ambiguous multiethnic coalition’ (Rabushka and Shepsle 1972: 83).”210

Sri Lanka’s unitary status, adopted from Western and colonial models of governance, proved

ineffective at preventing communal divisions despite its guarantees to protect individual rights.

These developments in the first decades of Sri Lanka’s independence motivated the Tamil

separatist movement and pushed the island towards armed ethnic conflict.

To address growing demands for a separate Tamil state on the island, some political

leaders made efforts to push for more devolution of state power on the island. In the Indo-Sri

Lanka Accord of 1987, the Sri Lankan government agreed to a system of decentralized

provincial councils under which the North and the East would be amalgamated temporarily.211

Brought to the negotiating table by India to appease both the Sri Lankan Tamil population and

their domestic Tamil constituencies, this concession was limited since the councils would exist

within the unitary system and lack entrenched protection and jurisdictional prerogative inherent

in a federal system.212 Although efforts to fully implement these councils failed, the debate over

devolution continued domestically with the subsequent election of President Chandrika

Bandaranaike Kumaratunga, as various civic actors advocated for devolution as part of her

government’s peace negotiations with the LTTE. In Norwegian-mediated peace efforts between

2002 and 2005, participating NGOs also proposed models of federalism as a potential

solution.213 Therefore, many Tamil and some Sinhalese liberals grew to perceive federalism as

210 Ibid, 144. 211 Premdas, Ralph R., and S. W. R. de A. Samarasinghe. 1988. “Sri Lanka’s Ethnic Conflict: The Indo-Lanka Peace Accord.” Asian Survey 28 (6): 676–90. 212 Ibid. 213 Kadirgamar, Ahilan. 2020. “Polarization, Civil War, and Persistent Majoritarianism in Sri Lanka - Political Polarization in South and Southeast Asia: Old Divisions, New Dangers.” Carnegie Endowment for International Peace. August 18, 2020. https://carnegieendowment.org/2020/08/18/polarization-civil-war- and-persistent-majoritarianism-in-sri-lanka-pub-82437. 94

the ideal political consensus to diffuse ethnic tensions.214 However, while Sinhalese Buddhist

nationalists opposed devolution on the grounds that the government should accord priority to

Sinhalese Buddhist interests and culture, Tamil separatists, such as the LTTE, initially rejected

solutions short of a separate state before conceding that federalism would be an acceptable

political settlement at the start of the Norwegian negotiations. As Sinhalese Buddhist nationalists

wrested political control of the country with Mahinda Rajapaksa’s election to the presidency,

reforms to devolve power from the center seemed less likely. Currently, many in Sri Lanka and

abroad continue to advocate for a federal solution to resolve continuing ethnic tensions with little

success.

The day after the LTTE surrendered to government forces on May 19, 2009, President

Mahinda Rajapaksa addressed Parliament, claiming:

“We have removed the word minorities from our vocabulary three years ago. No longer are the[re] Tamils, Muslims, Burghers, Malays, and any other minorities. There are only two peoples in this country. One is the peoples who love this country. The other comprises the small groups that have no love for the land of their birth.”215

Rajapaksa appeared to abstract the Sri Lankan citizen as an individual rather than a member of

their communal group, expecting non-Sinhalese communities to identify with a superordinate

identity that transcended their group attachment.216 However, by placing an expectation that the

citizen must be loyal to the state, Mahinda Rajapaksa was simultaneously championing a

nationalism that has historically promoted the Sinhala majority above all else. Hence,

Rajapaksa’s words were indicative of the subsequent majoritarian policies that his government

214 Manikkalingam, Ram. 2003. “A Unitary State, A Federal State or Two Separate States?” Social Scientists Association, Sri Lanka. 215 Wickramasinghe, Nira. 2009. “After the War: A New Patriotism in Sri Lanka?” The Journal of Asian Studies 68 (4), 1046. 216 Ibid, 1047.

undertook to strengthen political centralization, promote Sinhala Buddhism, and further the

marginalization of the minority communities mentioned in his speech. As demonstrated in

previous decades, Mahinda Rajapaksa’s resulting popularity with the Sinhalese after defeating

the LTTE translated to success in the ballot box: he won reelection in 2010 and his United

People’s Freedom Alliance Party gained a majority of seats in 2011’s local government

elections. Upon returning to power, Mahinda Rajapaksa’s administration promoted constitutional

measures against political freedoms, opposed devolution of power to the provinces, and exerted

coercion and threats against potential challengers. These were actions “cleverly embedded within

a deeply entrenched form of cultural politics where, through the spread of the idea of national

heritage and pride in an unproblematic national past, citizens became convinced of the

legitimacy of the postwar patriotic state,” according to Nira Wickramasinghe.217 While

Wickramasinghe means to distinguish “citizens” as mainly the Sinhala Buddhist population, her

argument captures the political climate in which Mahinda Rajapaksa secured a two-thirds

majority in Parliament to pass the 18th Amendment to the constitution. The Amendment

removed the two-term limit for the presidency and restricted the ability of the Election

Commission to prevent political parties from using state resources to advance their campaigns

during elections.218 The “postwar patriotic state” also involved the increased presence of the Sri

Lankan security forces, still overwhelmingly Sinhalese, in the civil administration, development

activities, and commercial ventures of the Tamil-majority North and East. The Rajapaksa

administration also redistributed land previously held by Tamils and Muslims in those provinces

217 Wickramasinghe, Nira. 2014. “The Post-War State: The Making of Oppressive Stability.” In Sri Lanka in the Modern Age: A History. Oxford University Press, 381. 218 “The 18th Amendment to the Constitution: Process and Substance.” 2010. Groundviews (blog). September 2, 2010. https://groundviews.org/2010/09/02/the-18th-amendment-to-the-constitution-process-and- substance/.

to Sinhalese communities, prompting concerns that the government was attempting to change the

ethnic demographics of the North and East for their own gain. Although Sri Lanka had already

been a unitary state, the war provided an excuse for Sinhala Buddhist nationalist politicians to

further consolidate power at the center under the pretense of national security.

Following administrations have similarly operated with communal politics in mind,

especially courting the Sinhala Buddhist majority with majoritarian policies and rhetoric.

Although the surprise victory of Maithripala Sirisena and Ranil Wickremesinghe in 2015 was

championed as a victory for Sri Lankan democracy and a return to a more tolerant religious

milieu, the new administration sought to avoid prosecuting those responsible for communal

violence both during and after the civil war. The latter became evident when Sinhalese Buddhist

nationalists, led by the hardline Bodu Bala Sena, instigated violence against Muslims. While this

phenomenon was not new in Sri Lanka’s history, attacks on the Muslim community reached new

heights after the 2019 Easter Sunday bombings, with rioters assailing Muslim-owned businesses,

residences, and mosques. At the climax of the violence, Sirisena pardoned the head of the Bodu

Bala Sena, Galagoda Aththe Gnanasara, which released him from a previous sentence; political

analysts saw the move as a bid to court Sinhala Buddhists ahead of the elections later that

year.219 Whereas the Sirisena-Wickremesinghe administration had been covert about its Sinhala

Buddhist majoritarian politics, Gotabaya Rajapaksa’s administration harkened back to previous

policies promulgated by his brother to centralize the state. Winning first in 2019, and then

propelling his Sri Lanka Podujana Peramuna (SLPP) to a supermajority victory while gaining

reelection in postponed elections in August 2020, Gotabaya Rajapaksa immediately amassed

219 Sirilal, Ranga. 2019. “Freed Sri Lanka Buddhist Monk Vows to Expose Islamist Militancy.” Reuters, May 28, 2019. https://www.reuters.com/article/us-sri-lanka-monk-pardon-idUSKCN1SY1CH.

more power with the passage of the 20th Amendment, which allowed him to dissolve Parliament

early, hire and fire the prime minister and appoint judges as well as the heads of the election,

anti-corruption and other supposedly independent commissions.220 Gotabaya Rajapaksa’s

government has also adopted discriminatory measures against the Tamil minority community,

such as dropping the national anthem in Tamil for the government’s independence-day parade,

and demolishing one of the only memorials dedicated to Tamil civilians killed in the war.221 In

March 2020, the Sri Lankan government made the cremation of all COVID-19 victims

compulsory, which went against the religious beliefs of the Muslim population and contradicted

the World Health Organization's guidelines. Even as Rajapaksa announced a reversal of the

mandatory cremation policy in February 2021, the government banned the burqa and closed

Islamic schools the next month on "national security" grounds.222 Most recently, President

Rajapaksa promised a new constitution based on “one country, one law,” which seemed to

endorse reducing the existing powers of the provinces and strengthening the unitary state

structure.223 Sri Lanka’s present descent into further political centralization and consequential

majoritarian politics pose ramifications for transitional justice initiatives to address the war in the

future.

220 The Economist. 2020. “Sri Lanka’s President Is Amassing Personal Power,” October 29, 2020. https://www.economist.com/asia/2020/10/29/sri-lankas-president-is-amassing-personal-power. 221 Ganguly, Meenakshi. 2021. “Thousands March for Justice in Sri Lanka, Despite Ban.” Human Rights Watch. February 9, 2021. https://www.hrw.org/news/2021/02/09/thousands-march-justice-sri-lanka-despite-ban. 222 Nazeer, Tasnim. 2021. “Sri Lanka’s Burqa Ban Is More About Islamophobia Than National Security.” The Diplomat. March 17, 2021. https://thediplomat.com/2021/03/sri-lankas-burqa-ban-is-more-about- islamophobia-than-national-security/. 223 Kapur, Roshni. 2020. “Tamil Diaspora and the LTTE Movement in Sri Lanka.” South Asian Voices. August 26, 2020. https://southasianvoices.org/tamil-diaspora-and-the-ltte-movement-in-sri-lanka/.

Democracy in Sri Lanka

Understanding why Sri Lanka’s current political structures have cultivated a Sinhala

majoritarian consciousness that impedes transitional justice measures necessitates a deeper

discussion of democracy in Sri Lanka. Many proponents of transitional justice contend that

democracy is the ideal embodiment of national governance for societies making the transition

from war or authoritarianism to peace, rule of law, and respect for human rights.224 Sri Lanka has

not implemented full transitional justice, yet many claim the country is a democracy. For

instance, Namal Rajapaksa, the eldest son of Mahinda Rajapaksa, has praised Sri Lanka’s

“strong capacity for exercising its franchise,” stating that “regardless of the party each of us

supports, we can stand proud as one democratic nation.”225 Those buttressing Rajapaksa’s

sentiments will claim that Sri Lanka’s political system is a democracy due to its regular elections

that consist of multiple competing parties. However, a closer analysis of how democracy

manifests in Sri Lanka reveals that the current government’s communal politics and increasing

authoritarian tendencies decrease political incentive to embark on transitional justice.

To classify whether Sri Lanka’s political system holds to its democratic ideals, one must

define what exact conditions democracy entails. Many political scientists have attempted to

demonstrate what exactly constitutes a democracy, which has produced varied meanings of the

concept. For instance, Adam Przeworski and his colleagues define democracy as “a regime in

which governmental offices are filled as a consequence of contested elections.”226 Joseph

224 Moyo, Khanyisela. 2012. “Feminism, Postcolonial Legal Theory, and Transitional Justice: A Critique of Current Trends.” International Human Rights Law Review 1: 237. 225 Abeyagoonasekera, Asanga. 2020. “Democracy and Equidistant Foreign Policy in a Majoritarian Government of Mahinda Rajapaksa.” ORF. August 11, 2020. https://www.orfonline.org/expert- speak/democracy-equidistant-foreign-policy-majoritarian-government-mahinda-rajapaksa/. 226 Diamond, Larry. 2003. “Defining and Developing Democracy.” In The Democracy Sourcebook, Edited by Robert Dahl, Ian Shapiro, and José Antonio Cheibub, 29–39. MIT Press, 32. 99

Schumpeter similarly describes democracy as a system “for arriving at political decisions in

which individuals acquire the power to decide by means of a competitive struggle for the

people’s vote.”227 However, Terry Karl observes that these definitions descend into the “fallacy

of electoralism,” which privileges elections over other dimensions of democracy and ignores the

degree to which multiparty elections may exclude significant portions of the population.228 To

this end, Ayesha Jalal distinguishes between a formal and substantive democracy.229 The former

guarantees the right to vote and freedom of expression, which is the category where Przeworski’s

and Schumpeter’s notions of democracy fall. However, concerning substantive democracy, Jalal

crucially observes that:

“Democratization’s normative or substantive appeal derives from the empowerment of the people, not as abstract legal citizens but as concrete and active agents capable of pursuing their interests with a measure of autonomy from entrenched structure of dominance and privilege”230

Jalal’s conception of a truly substantive democracy addresses the fallacy of electoralism by

requiring that citizens should be able to “renegotiate relations of power and privilege” beyond

the ballot box in the political, social, and economic spheres.231 She evinces democracy’s

normative ideal as a political system that seeks to include the voices of all citizens, including

those that have been historically marginalized or experienced relative repression as compared to

the majority in society. Although the current political structure of Sri Lanka has allowed for

competitive elections, it fails to allow all its citizens the ability to renegotiate power and

privilege, including in elections, which does not satisfy the criteria of a truly substantive

227 Ibid, 31. 228 Diamond, 33. 229 Jalal, Ayesha. 1995. Democracy and Authoritarianism in South Asia. Cambridge University Press, 3. 230 Ibid. 231 Ibid.

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democracy. I distinguish between a substantive and truly substantive democracy throughout this

thesis because other conceptions of substantive democracy implore the “general public” to

delineate the makeup of their government.232 A truly substantive democracy would consider the

“general public” to be all people, including minorities and marginalized groups. Therefore, a

transitional justice framework should not assume Sri Lanka is already a democracy but facilitate

the transition to a truly substantive one.

Conceptualizing democracy by simply the regular exercise of one’s voting rights in

elections or even the ability of one to express their civil liberties relies on the Western egalitarian

assumption that citizens function as individuals with “one man, one vote,” and make rational

choices according to their individual interests and values about which parties to support and

which candidates to elect.233 However, Stanley Tambiah argues that democracy in South Asia is

about conducting mass politics, which relies on the invention and propagation of collective

slogans and collective ideologies, to appeal to collective entitlements for groups.234 Tambiah’s

explanation accounts for the “ethnic outbidding” phenomenon described earlier in this chapter,

which has continued between Gotabaya Rajapaksa’s Sri Lanka Podujana Peramuna Party and the

opposition United National Party for the support of the Sinhala Buddhist majority in the present.

This also applies to the Tamil and Muslim populations of the island, who have their own political

parties that claim to advance their interests. For instance, the Tamil National Alliance (TNA) –

the primary coalition of Tamil parties on the island – engaged in biweekly talks with Mahinda

Rajapaksa’s government in the immediate years following the war to find “a durable solution to

232 Moyo, 244. 233 Tambiah 1996, 261. 234 Ibid. 101

the ethnic conflict.”235 As the TNA, an explicitly communally based political party, has been

viewed as one of the few entities to champion political reforms to address the conflict,

transitional justice is correspondingly perceived as a Tamil issue and not necessarily salient to

the rest of the population.

Moreover, these parties have oscillated between promoting proposals addressing the

concerns of their respective communities and making compromises on those proposals to align

with one of the major political parties in the unitary state structure. For instance, the TNA has

historically advocated for more political devolution but resorted to tentatively supporting the

government’s scheme of using economic development to restore the North and East only after

winning ten seats in the 2020 elections.236 These parties must contend with endorsing politically

untenable solutions to gain votes during elections while simultaneously operating under a

political system that enables the two main parties, which have historically safeguarded Sinhala

Buddhist interests, to control Parliament without their assistance. Though communally based

political parties demonstrate the ability of minority communities to express their voices in the

political arena, the prevailing political system does not enable them to enact structural changes

that could change the status quo. The first-past-the-post unitary structure has given precedence to

the communal politics of wooing the Sinhalese Buddhist majority over tackling the issues faced

by other communities on the island, further demonstrating that Sri Lanka’s political system does

not constitute a truly substantive democracy.

235 “Sri Lanka: The Tamil National Alliance (TNA).” 2012. United Nations High Commissioner for Refugees. January 2012. https://www.refworld.org/docid/4f435cce2.html.

236 Keethaponcalan, Dr S. I. 2020. “Sri Lanka’s Tamil National Alliance In Transition? – OpEd.” Eurasia Review (blog). July 14, 2020. https://www.eurasiareview.com/14072020-sri-lankas-tamil-national- alliance-in-transition-oped/. 102

Both the Rajapaksa brothers’ attempts at consolidating power at the executive reflect the

increasingly authoritarian tendencies of Sri Lanka’s political system. Ayesha Jalal defines

authoritarianism as organized power embedded in the institutional structure of the state.237 At

the end of the war, Mahinda Rajapaksa sought to impose an “oppressive stability,” cracking

down on political opponents, impeaching critics of the government on the courts, and continuing

the enforced disappearances of civil society actors and journalists.238 He also appointed his

siblings to prominent government positions: Gotabhaya Rajapaksa as Defense Secretary, Basil

Rajapaksa as in charge of the Ministry of Economic Development, and Chamal Rajapaksa as

Speaker of Parliament, placing approximately 70 percent of the national budget under the control

of the ruling family.239 Although Sri Lankans experienced marginal improvements in political

rights and civil liberties in the Sirisena-Wickremesinghe administration, those gains have

reversed under Gotabaya Rajapaksa’s presidency.240 Besides embarking on political

centralization, Gotabaya Rajapaksa has rapidly militarized the state administration. He has

appointed several retired military officers to key positions in civil administration and moving

more than thirty agencies under the purview of the defense ministry.241 Paradoxically, after

embarking on those actions, Gotabaya Rajapaksa was re-elected with an overwhelming majority

in the August 2020 elections. Despite the ongoing pandemic, Sri Lankan independent election

monitors reported that the election was peaceful and there were fewer violations of election law

237 Jalal, 3. 238 Wickramasinghe, 379. 239 Ibid, 386. 240 “Sri Lanka: Freedom in the World 2021 Country Report.” n.d. Freedom House. Accessed May 3, 2021. https://freedomhouse.org/country/sri-lanka/freedom-world/2021. 241 Sanjeev, Laxmanan. 2020. “Is Sri Lanka Becoming a De Facto Junta?” Foreign Policy (blog). July 17, 2020. https://foreignpolicy.com/2020/07/17/sri-lanka-junta-gotabay-rajapaksa-military/. 103

than previously.242 The results signaled that Gotabaya Rajapaksa received a popular mandate

from the Sinhala Buddhist majority to follow through on his platform of “national security” after

the Sirisena-Wickremesinghe administration left the country vulnerable to terrorism again.

Consequently, Neil DeVotta describes Sri Lanka as an electoral ethnocracy, which stands to

become a despotic ethnocracy if the Sinhala Buddhist majority continues to enable Gotabaya

Rajapaksa’s authoritarian actions.243 Sri Lanka’s creeping authoritarianism under the guise of

ensuring stability and national security does not bode well for transitional justice efforts, as well

as the broader goal of enabling ordinary people to express their rights and opinions with

autonomy.

The Role of Collective Truth and Accountability in Transitional Justice

The evolution of politics and democracy in Sri Lanka as communally motivated

operations has meant that most Sri Lankans also view transitional justice in communal terms. In

particular, the perceptions of what constitutes truth and accountability in response to the conflict

differ and are highly polarized based on one’s ethnoreligious affiliation. Though each ethnic

group is monolithic, each has a communal consciousness that informs how one views the war,

the war’s aftermath, and how transitional justice should accordingly function. Kumaravadivel

Guruparan describes the competing views of transition advanced by three polities: the Sinhala

Buddhist nationalist view, the Eelam Tamil or critical view, and the liberal cosmopolitan view.244

242 Abi-Habib, Maria. 2020. “Sri Lanka Election Hands Rajapaksa Family a Bigger Slice of Control.” The New York Times, August 7, 2020, sec. World. https://www.nytimes.com/2020/08/06/world/asia/sri-lanka- elections-rajapaksa.html. 243 DeVotta, Neil. 2021. “Sri Lanka: The Return to Ethnocracy.” Journal of Democracy 32 (1). 244 Guruparan, Kumaravadivel. 2017. “The Difficulties and Probable Impossibility of a Coherent Conception of Transitional Justice in Sri Lanka.” In Transitional Justice in Sri Lanka: Moving Beyond Promise, Edited by Bhavani Fonseka, Centre for Policy Alternatives.

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While the latter two groups advocate for varying degrees of political reform to reckon with the conflict, Sinhala Buddhist nationalists believe that Sri Lanka achieved transition when the war ended. The Sinhala Buddhist nationalist view of transition, shaped by the community’s majoritarian outlook and endorsed, both implicitly and explicitly, by successive governments, has made it complicated to pursue transitional justice today.

The first problem one encounters when discussing transitional justice in Sri Lanka is that there is no universally agreed-upon account of what happened during the war. At the beginning of our interview, one person told me:

“We don’t have a common narrative about what happened, and we will never have a common narrative about what happened… the Tamil diaspora in Canada has a narrative about what happened, Sinhalese diaspora in Canada has a different narrative about what happened, Tamils in the North who were affected have a different narrative of what happened, and the Sinhalese have a different narrative of what happened.”

Every other person I interviewed echoed these sentiments, faulting the polarized narratives held by the Tamil and Sinhalese communities for obfuscating the "truth" of war's origins and impact.

However, many of those I interviewed went further to suggest that the Sinhala Buddhist narrative of the war has influenced the discourse concerning transitional justice in Sri Lanka the most. A former legal analyst in the Office of Missing Persons said that “[most] people are not really ready to identify that there was a wrong that happened.” They added that:

“People find it very difficult to draw a line to say… [the armed forces] did so much good in the sense of handling terrorism but at the same time the same person with all those victories would have committed war crimes also…to draw the line, I think, is very difficult to fathom to the Sinhala majority community.”

Another interviewee also noted that for many Sinhala Buddhists, the war “is phrased as 'we were fighting a war against terrorists.'” These Sinhalese Buddhist narratives of the war justify the security forces’ human rights abuses and atrocities in the name of preventing terrorism, which is not only associated with the LTTE but the Tamil community at large. The accounts also 105 propagate the majoritarian perception of the state and its institutions as fighting the war to protect the historical dominance of the Sinhala Buddhist community in Sri Lanka against threats from the “other,” whose claims are rendered invalid through their designation as “terrorists.” The security forces themselves were also majority Sinhalese, furthering this perception that they were advancing the interests of the Sinhalese Buddhist population to defeat the “terrorist” Tamil population. Thus, this creates a Sinhala Buddhist collective memory of the war that obscures the origins of the conflict in state-sanctioned discrimination against Tamils, glosses over the state's complicity in perpetuating violence, and equates the victory of the security forces in the war as a triumph of Sinhalese Buddhist supremacy. Sinhalese-language newspapers perpetuate this collective memory of the war by labeling the yearly anniversaries of the war’s end as

“celebrations to commemorate war heroes," standing in stark contrast to Tamil press coverage of the anniversary memorializing those who lost their lives. (Figures 1 and 2). Truth-seeking mechanisms must contend with this Sinhala Buddhist collective memory of the war, which absolves blame from the security forces and puts it on the Tamil community; this makes it difficult to establish a commonly accepted “truth” that adequately deals with the war’s atrocities and fosters inter-ethnic reconciliation.

Any competing narrative of the conflict appears to accuse not just the government or the security forces of wrongdoing but the Sinhalese Buddhist population as a whole, which conflates pursuing accountability with collectively implicating the Sinhala Buddhist majority for the war's grievances. Continued high support for the military bolsters this understanding: a 2019 public opinion poll found that 95.8% in the Sinhala community trust the army more than any other 106

political institution, compared to 86.1% of the general Sri Lankan population.245 Consequently,

the predominance of the Sinhala Buddhist collective memory has reduced the political viability

of prosecuting government and military officials for alleged war crimes. One prominent civil

society leader remarked that:

“the side that won the war is not keen on going too deeply into [transitional justice- related] issues, especially truth and accountability, because they fear that if they go into those issues, they will end up being punished or being found at fault with.”

Another interviewee similarly commented that “no political party would want to go that step [of

accountability] because it would cost them political mileage.” Past actions have supported the

observations of those I interviewed. After human rights organizations filed criminal lawsuits

against former Sri Lankan army general Jagath Jayasuriya during his ambassadorship in Brazil,

then-President Maithripala Sirisena vowed to “not allow anyone in the world to touch Jagath

Jayasuriya or any other military chief or any war hero in this country.”246 During his first

presidential campaign in 2019, Gotabaya Rajapaksa similarly promised to release all the “war

heroes in prisons for various framed allegations” if he won; Rajapaksa proceeded to win the

election with more than 52% of votes cast.247 Although Sirisena and Rajapaksa had drastically

different public positions on transitional justice, both adopted the same stance of shielding ex-

security forces from being held accountable for their past actions. Thus, regardless of the

political administration, Sri Lankan politicians and their respective political parties actively

champion the Sinhala Buddhist collective memory for their own political gain, both electorally

245 “Public Opinion Poll on Sri Lanka’s Constitutional Reform.” 2019. Centre for Policy Alternatives. https://www.cpalanka.org/wp-content/uploads/2019/05/Public-Opinion-Poll-on-Sri-Lankas-Constitutional- Refrom_-30.05.2019.pdf. 246 Mallawarachi, Bharatha. 2017. “Sri Lankan Leader Will Protect General Accused of War Crimes.” AP News. September 3, 2017. https://apnews.com/article/e80c1af634a74b269af057e2a50fd1a8. 247 Aneez, Shihar, and Ranga Sirilal. 2019. “Sri Lanka Ex-Defence Chief Launches Presidential Campaign, Pledges Safer Nation.” Reuters. October 9, 2019. https://www.reuters.com/article/uk-sri-lanka-politics- idUKKBN1WO2AS. 107

and to escape accountability themselves. International human rights organizations have accused

many of those holding political power in both administrations of human rights violations and war

crimes. For instance, Human Rights Watch even labeled Gotabaya Rajapaksa as the “architect of

Sri Lanka’s war crimes” for his role as Secretary of Defense during the war.248 To that end, one

interviewee concluded that the main Sinhala-majority political parties were “running on the basis

of divisiveness.” They added:

“So, it’s basically the Sinhala Buddhist majority government [saying] we have the power, we don’t need anyone else - when you have leaders promoting that narrative, it’s very difficult to reconcile the people.”

The Sinhala Buddhist majority population’s majoritarian consciousness and resulting collective

memory of the war have resulted in their overwhelming support of military and political leaders

that claim to represent their communal interests. As prosecuting these leaders for their alleged

human rights abuses is seen as attacking their community as a whole, accountability in a

transitional justice framework is unpopular with the Sinhalese community and, therefore,

politically unfeasible.

Pursuing accountability for the civil war’s grievances also has ramifications for the Tamil

community. The Sinhala Buddhist collective memory of the war as a justified victory against

“terrorists” has fueled resentment against Tamils in the post-war context. I interviewed one

person, who told me:

“The truth is you have a 75% Sinhala Buddhist majority, and out of that 75%, at least 70%...are closeted racists. They wouldn’t say anything out in the open, but they would just, you know, in their inherent systems, they would say the Tamils don’t deserve equal treatment.”

248 “Suspected Architect of Sri Lanka War Crimes Is UN’s ‘Chief Guest.’” 2020. Human Rights Watch. October 30, 2020. https://www.hrw.org/news/2020/10/30/suspected-architect-sri-lanka-war-crimes-uns-chief-guest.

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The government has used this sentiment to justify their actions in consolidating the unitary state

in the North and the East, such as increasing the presence of the military, sponsoring the

resettlement of Sinhala communities in former Tamil and Muslim-majority areas, and renaming

Tamil and Muslim villages and historical monuments in Sinhala.249 Sinhala Buddhist nationalists

also claim that accountability in a transitional justice framework is unnecessary because former

LTTE cadres have already faced justice. Nearly all LTTE personnel who engaged in war crimes

died in the war, and the government sent those that survived to military-run rehabilitation camps.

Moreover, many of those I talked to were unsure if prosecuting Sinhalese former political and

military leaders during the war would yield any benefits for the Tamil population. One civil

society activist even speculated that if an international entity brought a platoon responsible for

war crimes to court, “there would be hell to pay for Tamil people here.” The government, under

both administrations, has already weaponized the Prevention Against Terrorism Act, which

enables authorities to detain and “rehabilitate” anyone causing “religious, racial, or communal

disharmony,” against dissenters from ethnoreligious minority communities.250 Sri Lanka's quest

for truth, reconciliation, and accountability is not merely hindered by the polarization existing

between Sinhala and non-Sinhala communities, but by the persistent Sinhala majoritarianism

present in the Sinhala population and championed by the Sinhala-majority government.

Geopolitical Conditions for Transitional Justice

As noted in the second chapter, transitional justice initiatives within a particular locale or

country are influenced, pushed forward, and constrained by broader structural and geopolitical

249 “Sinhalization of the North-East: Verugal.” 2020. People for Equality and Relief in Lanka. March 1, 2020. https://pearlaction.org/2020/03/01/verugal/. 250 “Sri Lanka: ‘Religious Disharmony’ Order Threatens Minorities.” 2021. Human Rights Watch. March 16, 2021. https://www.hrw.org/news/2021/03/16/sri-lanka-religious-disharmony-order-threatens-minorities. 109

dynamics; Sri Lanka is a prime example of this. Kumaravadivel Guruparan terms the attempts

made by previous governments to pursue transitional justice initiatives as "foreign policy

management"251: even minor efforts to address the aftermath of the civil war are linked to the

international domain that Sri Lanka occupies at the time. Based on the political party in power,

Sri Lanka has straddled between pivoting towards the West and India and allying with China.

Given the current administration’s strengthened ties with the latter against the former,

meaningful transitional justice mechanisms are unlikely to be implemented in the present

geopolitical climate, further demonstrating that goals of transitional justice and international law

are not perceived as universally legitimate and neutral by the Sinhala Buddhist population.

Sinhala Buddhist Nationalism and the West

Initially premised as a reaction to Christian proselytization during colonialism, Sinhala

Buddhist nationalism has expanded to oppose “the West,” including Western organizations and

value systems. In its current iteration, Sinhala Buddhist nationalism justifies the superordination

of Buddhism over other religions on the island in contending that they are a minority religion in

a world where Western Christianity is the norm and, thus, deserve the nation for themselves as a

repository of Theravada Buddhism. During the civil war, this sentiment manifested in a virulent

antipathy for non-governmental organizations (NGOs), which arrived from Western countries to

provide humanitarian relief and facilitate the peace process. However, according to Neil

DeVotta, nationalists considered NGOs as “influenced by notions of imperialism, lackeys of

those advocating neocolonialism, and part of a Western conspiracy sympathetic towards the

LTTE’s attempt to dismember Sri Lanka.”252 One nationalist publication lamented that the

251 Guruparan, 182. 252 De Votta, Neil. 2007. “Buddhist Nationalist Ideology: Implications for Politics and Conflict Resolution in Sri Lanka.” Washington D.C.: East-West Center, 33. 110

foreign-funded NGO community resorts to an “anti-Sinhala bias,” given that they are

“proponents of an American funding evil Western conspiracy.”253 Hence, the belief that a

conspiracy existed between NGOs and Western governments to soil the Sri Lankan government

and security forces’ reputations, favor the LTTE, and undermine the country’s sovereignty was

pervasive amongst the Sinhalese Buddhist population.254

Sinhala Buddhist nationalists adopted a similar stance on the United Nations resolutions

and reports concerning transitional justice in Sri Lanka. During our interview, one civil society

organizer reflected that “when you have international judges in a system that is not a failed

state…then they resist the foreigner, they will not let the foreigner come in…the whole system

would have resisted the foreigners.” A former board member of the Sri Lankan President’s

Office for National Unity and Reconciliation commented similarly that once the transitional

justice process became international with the resolution, the Rajapaksas and their majority-

Sinhala supporters “shut down and refused to engage” with global governance actors. Both

observations were apparent when Sinhalese Buddhist monks protested then-UN Human Rights

Commissioner Navi Pillay’s visit to the island in 2013 to investigate concerns over alleged war

crimes committed by security forces. After facing a police blockade while protesting, the monks

accused the police of “taking the side of anti-Sri Lankan forces in the West,” according to an

Indian news outlet.255 Two years earlier, similar public demonstrations had occurred after the UN

released a report that investigated potential war crimes during the war, referenced frequently in

the first chapter of this thesis. Kristine Höglund and Camilla Orjuela noted the presence of “a

253 Ibid. 254 De Votta, 35. 255 “Sinhalese Buddhist Monks Protest UN Rights Chief’s Visit.” 2013. News 18 India. August 26, 2013. https://www.news18.com/news/india/sinhalese-buddhist-monks-protest-un-rights-chiefs-visit- 634444.html. 111

large banner in the multitude of Rajapaksa placards [that] pictured five other heads of state –

those of Venezuela, Cuba, Libya, Russia, and China – under the text “For New World Order,”

highlighting leaders that “opposed the domination of Western nations globally and despised

international intervention in the internal affairs of states.”256 Furthermore, Sinhala Buddhist

nationalists point out the hypocrisy and arrogance of Western countries’ foreign policy agendas,

which claim to promote human rights while turning a blind eye to their atrocities perpetrated in

other parts of the world. Vehement Sinhala Buddhist nationalist opposition to transitional justice

efforts promoted by the UN and Western countries further indicates that transitional justice

principles are not universally accepted and legitimate, particularly by postcolonial societies.

Mahinda Rajapaksa spearheaded this nationalist movement against foreign intervention

throughout the war and after, portraying himself as a challenger of the West to attract his Sinhala

Buddhist base. As Mahinda Rajapaksa’s administration garnered criticism from the United

States, United Kingdom, Australia, and the European Union over its human rights record and

final military campaign against the LTTE during the war, Sri Lanka’s alliances shifted towards

countries like Iran, China, and Russia. During the war itself, China and Pakistan were the

primary suppliers of arms for the Sri Lankan government, which enabled them to conduct the

final offensive and win the war in the first place. Mahinda Rajapaksa positioned his legitimacy

on “nationalism, patronage, and traditional values, and on his struggle against imperialist

Western states and terrorism."257 In contrast, opposition leader Ranil Wickremesinghe had a

“Western-oriented image and wealthy urban background” and championed market liberalization

and peace negotiations with the LTTE and had a good rapport with Western powers.258

256 Höglund, Kristine, and Camilla Orjuela. 2012. “Hybrid Peace Governance and Illiberal Peacebuilding in Sri Lanka.” Global Governance 18 (1): 89. 257 Ibid, 93. 258 Höglund and Orjuela, 93. 112

As noted previously in this chapter, Maithripala Sirisena and Ranil Wickremesinghe’s

new government in 2015 sought to reinstate amicable ties with the West. However, in adopting

UN Resolution 30/1, one interviewee noted that “it became very easy for the then-opposition [the

Rajapaksas during the Sirisena-Wickremesinghe administration] to say this is bringing in foreign

judges to judge our soldiers, [that’s the] height of treachery.” He added that the Rajapaksas

equated “bringing foreigners to try our soldiers, our own politicians” as a “violation of our

sovereignty.” Attempting to reconcile their relationships with the West and India while also

addressing the fears peddled by the opposition, the Sirisena-Wickremesinghe administration

avoided the “accountability problem.”259 As Kumaravadivel Guruparan argues, the government’s

transitional justice strategy, therefore, included accepting that individual war crimes existed

while denying that systematic war crimes took place, aiming to restore its international image to

the West while limiting its antagonization of the Sinhala Buddhist electorate.260 Guruparan

thereby asserts that the Sirisena-Wickremesinghe administration appropriated international

human rights norms for their own political gain, similar to other transitional justice case studies

in postcolonial societies.

Current president Gotabaya Rajapaksa has followed his brother’s precedent and rejected

the UN’s and Western countries’ attempts to continue pressuring the Sri Lankan government to

adopt transitional justice measures. Gotabaya Rajapaksa has had a history of criticizing Western

governments accusing the Sri Lankan government of war crimes. As Minister of Defense in his

brother’s administration, he stated in a 2009 television interview that “the Sri Lankan military

did much, much better than all these [Western] forces everywhere else in the world when it

259 Guruparan, 182. 260 Guruparan, 183. 113

comes to the civilian casualties.”261 He added, “If someone talks about taking our military or

anybody into war crime tribunals, before that, you have to take US troops, UK troops, all those

troops.”262 Some of this rhetoric and corresponding actions have continued since Gotabaya

Rajapaksa became president in 2019. Besides withdrawing from the UN Human Rights Council

resolutions concerning transitional justice, Gotabaya Rajapaksa’s administration has pardoned

security forces previously implicated for their war crimes and demoted and arrested senior police

officials tasked with investigating civil war-era killings and abductions, pushing back against

criticism from international human rights organizations and Western nations.263 Foreign Minister

Dinesh Gunewardena stated that the March 2021 UN resolution condemning Sri Lanka’s failure

to adopt transitional justice and improve human rights conditions was supported “by Western

powers that want to dominate the Global South.”264 In turn, the United States has adopted a

tougher stance on post-war accountability in Sri Lanka. In February 2020, the U.S. government

imposed individual sanctions on the current Commander of the Sri Lankan Army Lieutenant

General Shavendra Silva, barring him and his family entry into the United States. At the time,

U.S Secretary of State Mike Pompeo made a statement that urged the Sri Lankan government to

“hold accountable individuals responsible for war crimes.”265 As the Rajapaksa family remains

in power, Sri Lanka’s stance against the West seems unlikely to shift for the foreseeable future.

261 Lanka lashes out at West’s criticism: NDTV. 2009. Video. https://www.youtube.com/watch?v=Vtm54Y9USEg. 262 Ibid. 263 Fletcher, Laurel E., Ashleigh Lussenden, Blaire Lee-Nakayama, and Helena von Nagy. 2021. “The Human Rights Council Must Establish an Accountability Mechanism for Sri Lanka’s Victims.” Just Security. February 11, 2021. https://www.justsecurity.org/74653/the-human-rights-council-must-establish-an- accountability-mechanism-for-sri-lankas-victims/. 264 “Explainer: What the UNHRC Resolution Means for Sri Lanka.” 2021. Al Jazeera. March 25, 2021. https://www.aljazeera.com/news/2021/3/25/what-does-un-human-rights-resolution-mean-for-sri-lanka. 265 Hernandez, Michael. 2020. “US Sanctions Sri Lankan Commander over Rights Abuses.” Anadolu Agency. February 14, 2020. https://www.aa.com.tr/en/politics/us-sanctions-sri-lankan-commander-over-rights- abuses/1734352. 114

While conventional understandings of “the West” generally encompass the United States,

the majority of Europe, and Australasia, Sinhala Buddhist nationalists also consider India part of

this coalition. India has historically had a complicated relationship with the island, only

amplified by the shared religious and ethnolinguistic ties, both with the Sri Lankan and up-

country Tamil communities. Sinhala Buddhist nationalists have not forgotten India's disastrous

intervention in the civil war between 1987 and 1990 and accuse India of sympathizing with the

Sri Lankan Tamil minority due to its own significant Tamil population. However, the

relationship between the governments of India and Sri Lanka, including in the Rajapaksa

administrations, has been more complex due to shared economic and security interests – ebbing

and flowing due to the pressures on coalitions in India, the influence of politics and parties in

Tamil Nadu, and the regional geopolitical climate. India has consistently urged Sri Lanka to

adopt the 13th Amendment to the Constitution, which would ensure devolution of power for the

Tamil-majority North and East through provincial councils.266 Conversely, India remained

neutral on recent UN resolutions concerning Sri Lanka’s transitional justice process, supporting

the Sri Lankan government-sponsored Resolution 30/1 in 2015 but abstaining from the most

recent UN resolution condemning Sri Lanka’s failure to follow through on their commitments.

The latter, more recent actions signal India’s desire to avoid alienating Sri Lanka, enabling the

aspiring regional hegemon to further their relationship with the island nation to counter China’s

growing influence. Under Gotabaya Rajapaksa’s administration, recent actions indicate that this

has proven difficult. In February 2021, Sri Lanka halted a 2019 agreement for India and Japan to

develop and operate the East Container Terminal at Colombo Port, citing protests from trade

266 Bhaumik, Anirban. 2021. “S Jaishankar Nudges Sri Lankan Government to Fully Implement 13th Amendment.” Deccan Herald. January 6, 2021. https://www.deccanherald.com/national/s-jaishankar- nudges-sri-lankan-government-to-fully-implement-13th-amendment-935971.html. 115

unions and opposition parties. Among those opposing the development project were influential

Buddhist monks, pulled in by the unions; one such monk, Medagoda Abhayatissa Thero,

characterized the development of the East Container Terminal as an attempted Indian invasion of

the island, akin to the popular Hindu myth The Ramayana.267 Although Sri Lanka approved a

new port development with India and Japan the following month, the relationship between the

two countries remains fraught due to respective domestic pressures.

The Tamil Diaspora

According to Sarah Wayland, a diaspora is a transnational community dispersed from

their homeland, whose members permanently reside in one or more “host” countries.268 The

Tamil diaspora outside of Sri Lanka is composed of Sri Lankan Tamils and upcountry Tamils

displaced by the ethnic conflict and war, a majority of whom have settled in the West, India, and

other countries in the Gulf, Africa, and Southeast Asia. A report published by the International

Crisis Group in 2010 documented approximately 200,000 Tamil refugees in the Indian state of

Tamil Nadu, 200,000 to 300,000 Tamils in Canada, 180,000 Tamils in the United Kingdom,

60,000 Tamils in Germany, 40,000 Tamils in Australia, and 25,000 Tamils in the United States,

among other countries.269 This Tamil diaspora is by no means monolithic, encompassing

differentiations in class, caste, and gender. Although some Tamils escaping Sri Lanka were

affluent, well-educated, and able to transfer those skills to become successful professionals in

267 Farzan, Zulfick. 2021. “Sri Lanka Facing Indian Invasion, Warns Ven. Medagoda Abhayatissa.” Sri Lanka News - Newsfirst. January 25, 2021. https://www.newsfirst.lk/2021/01/25/sri-lanka-facing-indian- invasion-warns-ven-medagoda-abhayatissa/. (Note: many Sri Lankans view Ravana as a king of the island who oversaw great advancements in Sri Lankan civilization – thus, Rama and his army overthrew one of the greatest rulers of the world in their view, contrary to popular Hindu belief). 268 Wayland, Sarah. 2004. “Ethnonationalist Networks and Transnational Opportunities: The Sri Lankan Tamil Diaspora.” Review of International Studies 30 (3): 408. 269 “The Sri Lankan Tamil Diaspora after the LTTE.” 2010. 186. International Crisis Group, 2. 116

their respective host countries, most of them were poorer, initially escaping via refugee camps in

Tamil Nadu before moving into working-class neighborhoods elsewhere. As successive numbers

of Tamils settled in different parts of the world, they established community networks that would

shape the course of the ongoing conflict in Sri Lanka, particularly concerning the success and

sustenance of the LTTE.

Wayland highlights the different means by which the Tamil diaspora influenced conflict

dynamics in Sri Lanka, including 1) information exchange within the Tamil community through

Tamil-language newspapers, radio, websites, and ethnically-based organizations, 2) political

mobilization through marches, conferences, and lobbying host-government officials, and 3)

fundraising, both lawful and illegal.270 Ahilan Kadirgamar argues that this mobilization occurred

at a particular moment in history when the LTTE consolidated power among other Tamil

political parties in Sri Lanka during the 1990s, enabling its stronghold on the diaspora.271 During

the war, members of the Tamil diaspora became arguably the strongest champions of the LTTE,

providing remittances and advocating for a separate Tamil Eelam. However, not all of the Tamil

diaspora supported the LTTE; some sought refuge abroad due to the LTTE’s violence and

intolerance of dissent from moderate Tamil voices.

Western governments have both heeded the Tamil diaspora’s call to condemn the Sri

Lankan government’s human rights violations while also punishing LTTE supporters within the

diaspora. As the Tamil diaspora’s political mobilization efforts intensified in the final stages of

the war, Western countries called for independent investigations into war crimes. For instance,

thousands of Tamil protesters in the United Kingdom occupied Parliament Square between April

270 Wayland, 418. 271 Kadirgamar, Ahilan. 2010. “Classes, States and the Politics of the Tamil Diaspora.” Economic and Political Weekly 45 (31): 23–26. 117

2009 to June 2009 to protest the UK government’s inaction to counter the brutal insurgency

mounted by Sri Lankan security forces. Within that time, the United Kingdom had embarked on

its sole LTTE-related prosecution while also releasing a joint statement with the United States

that expressed “profound concern” over the humanitarian crisis in northern Sri Lanka caused by

the ongoing hostilities.272 Moreover, many Western politicians with large Tamil constituencies

also denounced the Sri Lankan government’s actions. The war’s end and the resultant collapse of

the LTTE brought a renewed partnership between Tamil diaspora groups, Western governments,

and international human rights organizations to push for the Sri Lankan government to be held

accountable for many of the war’s grievances.273 For example, the series of UN Human Rights

Council resolutions concerning transitional justice in Sri Lanka involved the lobbying of member

states for their support by Western diplomats, international rights groups, and Tamil diaspora

organizations. Therefore, Suthaharan Nadarajah writes that:

“In Sri Lanka this West-led push for accountability was understood, in both popular Sinhala-nationalist discourse and government policy, as diaspora-driven, and therefore a serious threat to the country’s sovereignty and territorial integrity.”274

The Sri Lankan government’s proscriptions of Tamil diaspora organizations also faced

opposition from Western governments after the war. When the Sri Lankan government

proscribed 15 groups affiliated with the Tamil diaspora as terrorists, the United Kingdom

responded that “it was not aware of evidence that Tamil community organizations currently

operating in the UK are engaged in terrorist activities,” and that it had “[made] clear [to Sri

Lanka] that proscription should not be used to prevent or stifle free speech and legitimate

272 “Media Note: Bureau of Public Affairs, Office of the Spokesman.” 2009. Washington D.C.: U.S. State Department. 273 Nadarajah, Suthaharan. 2018. “The Tamil Proscriptions: Identities, Legitimacies, and Situated Practices.” Terrorism and Political Violence 30 (2), 291. 274 Ibid. 118

criticism.”275 Consequently, the West’s efforts to push for transitional justice in Sri Lanka

became entangled with the Tamil diaspora’s past political affiliations and current aspirations,

which further antagonized the relationships between the Sri Lankan government, under all

administrations, and countries of the West.

Sri Lanka’s Relationship with China and Its Impact on Transitional Justice

Tensions with India, the West, and the Western-based Tamil diaspora over the Sri

Lankan government’s human rights record have pushed Sri Lanka economically and politically

closer to China in recent years. The alliance between the two countries started during the conflict

itself, when President Rajapaksa’s administration relied on China for financial support, military

assistance, and political cover at the United Nations to block potential sanctions.276 After the end

of the war, President Mahinda Rajapaksa received Chinese $1.5 billion in loans and economic

aid to build a port in his hometown of Hambantota. The New York Times obtained documents

also indicating that large payments from the Chinese port construction fund flowed directly to

campaign aides and activities for Mahinda Rajapaksa during the 2015 elections.277 China’s

increased recent economic and political investment in Sri Lanka has been part of its “string of

pearls” strategy within its broader Belt and Road Initiative (BRI): a series of development and

infrastructure projects extending between Europe, Africa, and Asia that significantly expand

China’s influence.278 Through financing the Hambantota port and similar projects in Djibouti,

275 “Diaspora Orgs Proscription Should Not Be Used to Stifle Free Speech and Legitimate Criticism, UK Tells Sri Lanka.” 2014. Tamil Guardian. April 1, 2014. https://www.tamilguardian.com/content/diaspora-orgs- proscription-should-not-be-used-stifle-free-speech-and-legitimate-criticism-uk. 276 Abi-Habib, Maria. 2018. “How China Got Sri Lanka to Cough Up a Port.” The New York Times, June 25, 2018, sec. World. https://www.nytimes.com/2018/06/25/world/asia/china-sri-lanka-port.html. 277 Al-Habib, 2018. 278 Chatzky, Andrew, and James McBride. 2020. “China’s Massive Belt and Road Initiative.” Council on Foreign Relations. January 28, 2020. https://www.cfr.org/backgrounder/chinas-massive-belt-and-road- initiative. 119

Pakistan, and Bangladesh, China aims to accelerate maritime trade across the region while

providing locations for Chinese military vessels to dock and patrol the surrounding areas,

checking India’s authority in the Indian Ocean.279 Many allege that BRI challenges the perceived

dominance of the United States as a global leader, with China using BRI to assume the role of a

benevolent country with international leadership potential akin to the U.S.'s Marshall Plan for

Europe after the Second World War.280 Moreover, China has used projects within the initiative as

opportunities to increase the use of the yuan, gaining leverage in global financial markets.281

Joining BRI has been particularly attractive to Sri Lanka because it does not entail any

human rights conditionalities. Proponents of BRI argue that, unlike the United States and other

Western nations, China is not as concerned about spreading its values globally rather than

ensuring its economic assets are protected. Thus, Western aid is often accompanied by demands

for human rights improvements while Chinese BRI loans have no political strings attached.282

Besides the Hambantota port, China has financed other Sri Lankan infrastructure projects in the

years after the war, including the Colombo City Project, a USD 1.4 billion initiative to construct

facilities on reclaimed land at the country’s capital.283 In January 2021, the Sri Lankan

government approved a proposal to involve China in installing “hybrid renewable energy

systems” on three smaller islands off the Jaffna peninsula.284 China’s offers of loans and

279 Anwar, Anu. 2019. “Belt and Road Initiative: What’s in It for China?” East-West Center. 280Ibid. 281Ibid. 282 Bearak, Max. “In Strategic Djibouti, a Microcosm of China’s Growing Foothold in Africa.” Washington Post, December 30, 2019. https://www.washingtonpost.com/world/africa/in-strategic-djibouti-a- microcosm-of-chinas-growing-foothold-in-africa/2019/12/29/a6e664ea-beab-11e9-a8b0- 7ed8a0d5dc5d_story.html. 283 The Hindu. 2021. “China-Backed Colombo Port City No Threat to Sri Lanka’s Sovereignty: Minister,” April 17, 2021, sec. International. https://www.thehindu.com/news/international/china-backed-colombo-port- city-no-threat-to-sri-lankas-sovereignty-minister/article34344839.ece. 284 Srinivasan, Meera. 2021. “Sri Lanka Clears Chinese Energy Project, 50 Km off Tamil Nadu.” The Hindu, February 8, 2021, sec. International. https://www.thehindu.com/news/international/sri-lanka-clears- chinese-energy-project-50-km-off-tamil-nadu/article33785609.ece. 120

economic assistance without political stipulations stems from its traditional support of the

sovereignty principle, which in practice has entailed its defense of countries, especially those

affiliated with BRI, from accusations of human rights violations and domestic misconduct in the

international arena.285 For instance, ahead of the March 2021 UN Human Rights Council

resolution condemning Sri Lanka’s failure to adopt transitional justice, China’s top foreign

policy official, Yang Jiechi, assured President Gotabaya Rajapaksa that China would defend Sri

Lanka’s independence, sovereignty, and territorial integrity “at international fora including the

United Nations Human Rights Council.”286 In aligning with China – a rising power whose appeal

derives from challenging the presupposed dominance and legitimacy of the West – the Sri

Lankan government gains an ally that provides crucial backing for Sri Lanka’s future aspirations

without seeking to apply double standards of international norms. China’s dependability as a

source of economic and political support in the face of criticism from other countries about Sri

Lanka’s human rights record enables the Sri Lankan government to evade the international

pressure to implement comprehensive transitional justice mechanisms.

Sri Lanka has faced some difficulties in bandwagoning with China, which might have

implications for future transitional justice initiatives. Critics of BRI have warned that the

initiative risks straining participant countries with massive amounts of debt and consequently

increasing their dependence on China, known as “debt-trap diplomacy.”287 The Hambantota Port

has become the poster child for BRI’s potential to create debt-trap diplomacy, as Maithripala

Sirisena’s administration signed a USD 1.12 billion deal that leased a 70 percent stake of the port

285 Höglund and Orjuela, 95. 286 Macan-Markar, Marwaan. 2020. “Sri Lanka Assured of China’s Help in Burying Post-War Obligations.” Nikkei Asia. October 28, 2020. https://asia.nikkei.com/Politics/International-relations/Sri-Lanka-assured- of-China-s-help-in-burying-post-war-obligations. 287 Green, Mark. “China’s Debt Diplomacy.” Foreign Policy (blog), April 25, 2019. https://foreignpolicy.com/2019/04/25/chinas-debt-diplomacy/. 121

to China Merchants Port Holdings Company Limited (CM Port) for 99 years, interpreted by

many as ceding Sri Lankan territory to Chinese ownership.288 Though recent analyses have

concluded that Chinese banks are willing to restructure the terms of existing loans and have

never actually seized an asset from any country, including Hambantota, perceptions remain that

the deal compromises Sri Lanka’s sovereignty.289 Accordingly, it would be remiss to characterize

all Sinhala Buddhist nationalists as supporting the Rajapaksa administration’s position of

deepening their relationship with China. In April 2021, the China-backed Colombo Port City

Project faced criticism from influential Buddhist clergy members, who vowed to “not allow Sri

Lanka to become a Chinese colony.”290 If Sinhala Buddhist nationalist opposition increases to

heightened Chinese economic involvement in Sri Lanka, Gotabaya Rajapaksa’s administration

might stress neutrality over emphasizing its friendship with China, potentially losing the crucial

backing it received in the international arena against human rights-related criticisms. However,

even with a more outwardly neutral foreign policy, it is unlikely that Sri Lanka will lose China’s

support if the governments of Sri Lanka and China continue to work together quietly on the

economic and geopolitical front. Moreover, past precedent already indicates that countries of the

West and India, hoping to regain an alliance with Sri Lanka in the scenario of a potential

defection from China, will ease off pressuring the Sri Lankan government to adopt transitional

justice measures to avoid further alienation. During the Western-leaning Sirisena-

Wickremesinghe administration, the United States and other Western nations secured successive

288 Moramudali, Umesh. 2020. “The Hambantota Port Deal: Myths and Realities.” January 1, 2020. https://thediplomat.com/2020/01/the-hambantota-port-deal-myths-and-realities/. 289 Brautigam, Deborah and Meg Rithmire. 2021. “The Chinese ‘Debt Trap’ Is a Myth.” The Atlantic. February 6, 2021. https://www.theatlantic.com/international/archive/2021/02/china-debt-trap-diplomacy/617953/. 290 Srinivasan, Meera. 2021. “Sri Lanka Opposition, Civil Society Mount Legal Challenge to Chinese-Backed Port City Bill.” The Hindu, April 15, 2021, sec. International. https://www.thehindu.com/news/international/challenges-to-china-backed-colombo-port-project-land-in- sc/article34329231.ece.

122 two-year extensions for UN Resolution 30/1’s implementation. As in the past, Sri Lanka’s geopolitical entanglements will remain salient for a potential transitional justice framework to respond to the war’s aftermath.

Looking Ahead

After contemplating the conditions under which transitional justice would be used to address the grievances of the Sri Lankan civil war, the inevitable next step is to discern what mechanisms would constitute meaningful transitional justice in the Sri Lankan context. As I alluded to in my introduction, these measures are difficult to implement but not impossible. The conclusion of this thesis will go beyond the standard transitional justice framework to propose possible policies that can adequately reckon with the civil war's aftermath.

123

Figures Figure 1

Figure 2

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Figure 1 and 2: The Divide is a website produced by Verité Research, an independent think tank in Colombo. The site highlights the differences in reporting between Sinhala and Tamil language newspapers in Sri Lanka. During the tenth anniversary of the civil war’s end in May 2019, The Divide compiled and compared headlines from Sinhala and Tamil newspapers. While the government refers to the anniversary as “Victory Day,” Tamils remember the same date as “Mullivaikkal Remembrance Day,” named after the small village on the northeast coast of Sri Lanka where the massacre of tens of thousands of Tamil civilians allegedly took place in the final stages of the war. The Mullivaikkal commemorations mentioned were for Tamil civilians who lost their lives during the war; many of the commemorations have been suppressed by government authorities.

Citation: “Photo Analysis: Commemoration of 10 Years since the End of War.” 2019. The Divide (blog). May 27, 2019. http://divide.lk/photo-analysis-commemoration-of-10-years-since-the-end- of-war/.

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Conclusion

Defined as the various mechanisms a society can use to address and rectify human rights abuses in the aftermath of violent conflict, transitional justice aims to produce a more just future and prevent the recurrence of atrocities. However, this thesis finds that societies should pay closer attention to the standard framework of transitional justice, which advocates enacting multiple mechanisms to advance numerous compatible and mutually reinforcing goals. In analyzing the aftermath of the Sri Lankan civil war, I find that this idealized version of transitional justice is difficult to implement. To demonstrate this, I first chronicle Sri Lanka’s colonial history, which helped yield communal identities on ethnic lines and a political structure that propagated a majoritarian consciousness amongst the Sinhala Buddhist population. Both developments have affected transitional justice efforts in the present. This majoritarian consciousness has made it difficult to individualize responsibility for the war’s grievances.

Therefore, pursuing truth and accountability is perceived as implicating the Sinhala community as a whole. Moreover, Sinhala Buddhist nationalism’s rejection of the West and the Sri Lankan government’s consequential alignment with China further decreases the geopolitical incentive to embark on transitional justice mechanisms. Therefore, the implementation of transitional justice in Sri Lanka seems unlikely under these current conditions.

Meaningful Opportunities for Transitional Justice

While I argue that domestic and geopolitical realities in Sri Lanka impede transitional justice measures in the present, I still believe that there can be opportunities for the creation of meaningful transitional justice initiatives in the future. The second chapter of this thesis alluded to the possibility of transitional justice beyond the standard framework that advocates for multiple, mutually reinforcing mechanisms. As part of this concluding chapter, I will also expand 126

on some potential policies that would constitute progress on transitional justice in Sri Lanka.

Although I do not foresee the current government following through on any of the proposals

contained below, I hope that future political developments enable the possibility of their

implementation.

Land Redistribution and Economic Justice

One of the major dilemmas in seeking justice after a conflict is striking a balance

between commitments to redistribution and recognition. Khanyisela Moyo states that within the

context of transitional justice, justice as recognition may involve prosecutions, the creation of

truth commissions, or commissions of inquiry that recognize and acknowledge the conflict’s

grievances.291 On the other hand, justice as redistribution attempts to reorder property or land

rights and can potentially symbolically redistribute shame from the victim to the perpetrator.292

Much of the previous work done on transitional justice in Sri Lanka has been on recognition

rather than redistribution, including the most significant achievement of UN Resolution 30/1, the

Office of Missing Persons. However, many of my interviewees suggested that recognition

measures did not go far enough for many who suffered grievances in the civil war, especially

those from the North and East.

One particular concern raised during some of the interviews was the “Sinhalization” of

territories previously occupied by Tamil and Muslim communities. As this thesis has touched on

before, the Sri Lankan government has sought to resettle Sinhala communities in Tamil and

Muslim-majority areas. Moreover, security forces still retain control of land formerly held by

Tamils and Muslims displaced in the war. While the Rajapaksa administration has returned some

291 Moyo, 249. 292 Ibid.

127

plots to previous owners, security forces have turned their de-facto occupation of the territory

into legal acquisition, using it for agriculture, tourism, and other commercial ventures.293

However, it is unclear if these projects promote sustainable and equitable economic development

and reconstruction as the government claims them to be.294 While establishing ownership of

territory where multiple displacements have occurred over decades can be tremendously difficult

to do, setting up a process that enables internally displaced peoples to receive their land back can

be one step towards achieving transitional justice. As agriculture was the traditional source of

livelihoods in the North and East, returning land yields economic and social benefits for both the

recipient populations and the country as a whole.295 However, land redistribution itself does not

constitute economic justice; the state must also ensure that vulnerable communities have access

to basic services, means of employment, and adequate housing.296 Proposals to cultivate

economic justice should also account for other communities and areas beyond the North and

East. For instance, up-country Tamils, who mainly work in tea plantations and the agricultural

sector, also face high poverty levels, insufficient work compensation, difficulty obtaining

citizenship, and caste discrimination from their Sri Lankan Tamil counterparts.297 Economic

justice measures as redistribution might be more salient than existing recognition mechanisms in

Colombo due to their potential to have more tangible impacts for ethnoreligious minorities

struggling to rebuild their livelihoods in the immediate future. Moreover, these measures can

293 “‘Why Can’t We Go Home?’: Military Occupation of Land in Sri Lanka.” 2018. Human Rights Watch, 1. 294 Moramudali, Umesh. 2019. “Sri Lanka’s Uneven Reconstruction.” The Diplomat. November 7, 2019. https://thediplomat.com/2019/11/sri-lankas-uneven-reconstruction/. 295 Ibid. 296 “Sri Lanka: Treatment of Tamils in Society and by Authorities; the Eelam People’s Democratic Party (EPDP), Including Relationship with the Tamil Population (2014-February 2017).” 2017. United Nations High Commissioner for Refugees. March 2017. https://www.refworld.org/docid/58e217294.html. 297 Ibid.

128

economically benefit the country in tandem. Hence, most of my interviewees concluded it is the

area with the most potential for government action in the short term.

Political Reform and Democracy

While the vision of a separate Tamil state, or Eelam, perished with the defeat of the

LTTE, hopes for a federal solution or maximum devolution to bring about more autonomy for

the majority Tamil areas have persisted. Liberal Sri Lankans, Sri Lankan Tamil political parties,

and members of the Tamil diaspora have called for the full implementation of the 13th

Amendment to the Constitution, which would devolve more power to the provincial level.

However, others have criticized the devolution of power to the North and East as a solution that

will not necessarily yield change in the everyday lives of Tamils, as over half the Tamil

population lives outside those two provinces in areas with Sinhalese majorities.298 Furthermore,

devolution does not account for the minority Muslim and Christian populations interspersed

throughout the island, who have also suffered from Sinhala Buddhist nationalism and the

government’s corresponding majoritarian policies. Although a federal system akin to

neighboring India's was championed as a solution to achieve more equality for the Sri Lankan

Tamils, it appears both politically unfeasible and insufficient to offer protections

for all ethnoreligious minorities. Furthermore, even India’s robust federal system has not been

able to resist all the Hindu majoritarian policies promulgated by the center, as evidenced by the

violence faced by Muslims in opposition-led states.299

298 Wickramasinghe 2009, 1053. 299 Jaffrelot, Christophe. 2019. “The Fate of Secularism in India - The BJP in Power: Indian Democracy and Religious Nationalism.” Carnegie Endowment for International Peace. April 4, 2019. https://carnegieendowment.org/2019/04/04/fate-of-secularism-in-india-pub-78689. 129

The only political system that seems capable of addressing the concerns of vulnerable

populations in Sri Lanka is a truly substantive democracy, as elaborated on in the previous

chapter. Going further to define a truly substantive democracy, I would argue that it would entail

many of the conditions Larry Diamond specifies for liberal democracy: constrained executive

power, a free and independent civil society and press, an independent and nonpartisan judiciary,

the proper protection of ethnic and religious minorities, and the establishment of the rule of law

that protects those from undue interference and violence from state and non-state actors.300

However, to achieve a truly substantive democracy in the Sri Lankan context – and in South Asia

broadly – would first involve reconciling the tension between individually-guaranteed rights and

communal understandings of citizenship. Without dismantling the Sinhala Buddhist majoritarian

consciousness that pervades a majority of Sri Lanka’s population, or communal notions of

identity in general, the transformation from a formal democracy to a truly substantial democracy

cannot occur. Though this thesis argues that Sri Lanka’s political structure as a unitary state is

responsible for this majoritarian consciousness, it is unclear whether replacing it with a federal

system or abolishing it for a truly substantive democracy will completely eradicate Sinhala

Buddhist nationalism. Nonetheless, if political entities in Sri Lanka cease to embrace Sinhala

Buddhist nationalism for political gain, this can be a decent start. As one interviewee told me:

“If the government refuses to believe it’s a Sinhala Buddhist ideological world, then the media narrative, whatever you see, the policies are made, how the campaigns are run, and how the local government level works – everything changes. Then it gives a breathing space for the elements who are working on reconciliation to work.”

Meaningful transitional justice in Sri Lanka is contingent on removing the political incentives to

appeal to the Sinhala Buddhist majoritarian consciousness. Doing so might enable different

300 Diamond, 35.

130

ethnoreligious communities to realize that they should not be fighting one another but

demanding more from a state that has failed them all.

The Role of the Tamil Diaspora

Many in the Sri Lankan Tamil diaspora remain committed to Eelam, marking a

significant disconnect between their aspirations for transitional justice and the actual needs of

Tamils living in Sri Lanka. A report published by the International Crisis Group after the end of

the civil war in 2010 observed that “most in the country are exhausted by decades of war and are

more concerned with rebuilding their lives under difficult circumstances than in continuing the

struggle for an independent state.”301 In contrast, the report concluded that many diaspora leaders

are “unwilling to recognize the scale of defeat and continuing to believe an independent state

[was] possible" and "have dismissed Tamil politicians on the island either as traitors for working

with the government or as too weak or scared to stand up for their people’s rights.”302 One

interviewee corroborated these findings:

“[Members of the diaspora] are not completely disconnected with the ground situation here, because they do have networks, they do have contacts, friends, and maybe family here. But when you talk to people on the ground, what you hear from them as an immediate need is naturally very different from what you hear from young Tamil activists based outside of Sri Lanka.”

Another person I interviewed noted that in Tamil communities on the ground, “there is a huge

focus on material need,” which is overlooked by the diaspora in their quest for justice and

accountability. While the role of the diaspora, hitherto, has been viewed predominantly in terms

of their economic and political support for the LTTE, the post-war context beckons the question:

how can the Sri Lankan Tamil diaspora mobilize on behalf of Tamil communities in Sri Lanka

301 “The Sri Lankan Tamil Diaspora after the LTTE.” 2010. 186. International Crisis Group, 302 Ibid.

131

today? Does their continued participation in advocating for transitional justice help or hinder the

cause? Although previous research after the war centers on the potential resurrection of the

LTTE in diaspora circles, few sources properly assess the disconnect between the Tamil diaspora

and Tamil communities on the ground and what can be done – or has been done – to resolve it.

Amid a growing field of diasporic studies, aided by the proliferation of social media and other

new media technologies that span borders, properly delving into the current role of the Tamil

diaspora in Sri Lanka’s transitional justice process could be an area for future research.

Timing and Sequencing

One scholar with extensive experience conducting fieldwork in Sri Lanka told me that

“time is a very important variable when we are talking about reconciliation [and] when talking

about justice…it is intimately connected to the healing of a society.” Several others echoed her

thoughts, predicting that meaningful transitional justice mechanisms, particularly those that

entail prosecuting key perpetrators for war crimes, would not materialize for at least another two

decades. Their observations validate Sarah Maddison and Laura J. Shepard’s argument

referenced in the second chapter, which contends that societies should expand the temporal

frame for transitional justice.303 Transitional justice as a longer-term project aims to address the

immediate concerns of communities affected by the conflict while simultaneously reckoning

with the historical injustices and power imbalances between different populations created by

centuries of colonial rule. This is not to suggest that actions in the shorter term should not occur.

Ongoing developments in transitional justice that are time-sensitive, such as the quest to find

those that went missing or hold those still alive accountable for their human rights violations

303 Maddison, Sarah, and Laura J. Shepherd. 2014. “Peacebuilding and the Postcolonial Politics of Transitional Justice.” Peacebuilding 2 (3): 253 – 269.

132 during the war, should continue. However, dealing with structural inequalities between different ethnoreligious communities embedded in the current political system will inevitably take time. A war crimes tribunal, truth and reconciliation commission, or reparations scheme will not single- handedly move Sri Lanka beyond its violent and conflict-ridden past. Transitional justice scholars of Sri Lanka and beyond should pay closer attention to the potentially transformative impact that factors like education and economic development can have on long-term conflict resolution.

Concluding Remarks

This thesis has aimed to shed light on the lasting legacies of the Sri Lankan civil war, an understudied conflict with particular personal significance. As this work has concluded, meaningful transitional justice has yet to be fully implemented in Sri Lanka due to domestic and geopolitical realities, which seem to be unchanging for the time being. Thus, the Sri Lankan civil war remains one of the most difficult transitional justice case studies to date. Nonetheless, avenues exist for potential breakthroughs in the transitional justice space. The desire to diversify sources of international investment away from China, the realization by different ethnoreligious communities that their shared grievances against the state are more important than communal conflict, and other developments stand to motivate change. However, all these possible changes are contingent on the continued salience of the Sinhala Buddhist majoritarian consciousness, which the current unitary political structure is responsible for fostering and further enabling.

Although I hope that this thesis has contributed to the burgeoning literature on transitional justice in postcolonial societies, I believe the topic still merits additional research and scholarship in the future, especially in the South Asian context.

133

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