Women and Female Ex-Combatants: Challenges of Transitional Justice in Sri Lanka By Nirmala Indumathie Dias Paranavitana Date of Re-Submission – March 2016 A thesis submitted for the degree of Master of Philosophy at The Australian National University Canberra, Australia Acknowledgements I wish to acknowledge several important people who supported me to complete this research project. First and foremost Dr Tyrell Haberkorn my principal supervisor who has made much dedication towards giving me advice and insights to complete this project. I express my deepest gratitude to her for reading my drafts and important questions to build my analysis. This project would not have seen the light of the day without her commitment. I also would like to thank Professor Edward Aspinall who has been one of secondary supervisors who have given important insights to authenticate my discussions within the project. I have also received helpful advices from Dr Cecilia Jacobs who also one of my secondary supervisors during the past two years. I thank you sincerely for advising and encouraging me during my study programme. I also express my sincere thanks to Professor Greg Fealy, Head of the Department of Political and Social change for all the guidance he has provided and most importantly the comments he had made after each presentation I made in the past two years. I thank all the staff and students at the Department of Political and Social Change and in particular the departmental administrator, Julie Fitzgibbon. I also thank Thuy Do and Hamish Daley for their advice in framing my arguments, reading my chapters and giving important and useful comments. I sincerely express my deepest gratitude to Thuy Pham who dedicated her time to editing this thesis. I thank all the participants, academics, government officials and the experts who sincerely helped me with gathering field work data. Without the details and insights obtained it would not have been possible to bring in a unique perspective to this project. I also take this opportunity to thank the Ausaid for granting me a scholarship to carry out this study on behalf of the women victims in post conflict Sri Lanka. I would also like to mention i Gina Abarquez from the Ausaid Liaison Office at ANU for all the support and guidance she has rendered throughout my study at ANU. It is also important to mention the Ministry of External Affairs for all the support it has given to me in undertaking this study and I importantly mention the posting I have competed in Myanmar and my tenure at the United Nations Division which laid the basis for this study on human rights to evolve. I also mention at this point my husband who has continuously given steadfast encouragement tome to undertakehigher studies,especially a research project that is important for Sri Lanka. I thank my daughters Upadhya and Shona, together with my husband, for all the sacrifices they have made for this project to realise a successful project. ii Abstract Civilian Women and Female Ex-Combatants in Sri Lanka: Challenges of Transitional Justice With the end of the three decade long conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government Security Forces in 2009, the population of civilian women and female ex-combatants in the North and East which comprised the majority of the total Sri Lankan population were faced with post conflict issues that created obstacles to restoring their lives. The Panel of Experts appointed by the Secretary General of the United Nations for Sri Lanka asserted that the Government of Sri Lanka should implement a transitional justice program as part of post conflict peace-building. However, during the process of implementation, the idea and practice of transitional justice was challenged by the socio-cultural system in the North and East of Sri Lanka. This thesis examines the nature of tensions that arise between the main stakeholders of transitional justice, i.e. civilian women and female ex-combatants, and the socio- cultural system that exists in North and East of Sri Lanka. In this thesis, I argue that transitional justice for Sri Lanka should look into the socio-cultural norms that pose an obstacle to the implementation process. As much as the two concepts of restorative and retributive justice are in tension with each other, during the implementation process, transitional justice was further challenged by different post conflict contexts, and socio- cultural systems within which civilian women and female ex-combatants live. Through employing selective comparison of transitional justice processes in others post conflict contexts, this thesis explores the feasibility of combining and sequencing transitional justice mechanisms in Sri Lanka to adopt a justice process which goes beyond retribution. It also assesses the possibility of combining Disarmament, Demobilisation and Reintegration Programmes (DDR) for ex- combatants with transitional justice mechanisms to ascertain the feasibility of such an approach for Sri Lanka. In order to cement my findings, data collected during fieldwork interviews with iii civilian women and female ex-combatants in the North and East of Sri Lanka in early 2013 are utilised to make a clear distinction between the transitional justice policy proposed by the United Nations and the Government approach. This study contributes to the transitional justice scholarship as a critique of its application in the unique post conflict context of Sri Lanka, while also assessing the role of women within transitional justice mechanisms, while taking into account the civilian women and female ex-combatants. iv Contents Acknowledgements i Abstract iii Chapter 1 Introduction 01 1. Transitional justice in Sri Lanka 07 1.1 Background 07 1.2 Emergence of LTTE and the conflict 11 1.3 Emergence of Women’s Wing in the LTTE 15 1.4 Evolution of Transitional justice in Sri Lanka 18 2. Literature Review 21 2.1 Transitional Justice 21 2.3 Transitional Justice Mechanisms 23 (a) Truth telling (b) Amnesty 2.4 Justice 30 2.5 Reconciliation 34 2.6 Retributive Justice and Restorative Justice 35 2.7 Gender 37 2.8 Gender Justice and reconciliation 39 2.9 Gendered Sexual Violence 40 2.10 Disarmament, Demobilisation and Reintegration (DDR) 42 3. Methodology 46 4. Chapter Outline v 51 Chapter 2 Transitional Justice in Sri Lanka 53 1. Gender and Transitional Justice in Sri 53 Lanka 1.1 Setting the stage: Evolution of transitional justice in Sri Lanka 2. Transitional Justice Mechanisms 55 2.1 Implementation of mechanisms in Sri Lanka 58 2.2 Truth Telling process in Sri Lanka 58 2.3 The Amnesty process in the Sri Lankan context 63 2.4 Practice of Amnesty: Buddhism and Hinduism in Sri Lanka 69 2.5 Amnesty and women challenges 74 3. Weighing the Efficacy 79 3.1 Impact of Social Cultural Contexts 82 3.2 Impact of advancement of human rights 85 3.3 Gender in Transitional Justice 89 Chapter 3 Justice and reconciliation for Sri Lanka 94 1. Gender Justice and reconciliation for Sri Lanka 98 1.1 Justice and reconciliation 98 1.2 Gender Justice and Reconciliation 101 2. Gender Justice and Reconciliation for women in Sri Lanka 106 2.1 Retributive Justice and Reconciliation in Sri Lanka 109 2.2 Gender justice 111 vi 2.3 Sexual Violence 112 2.4 Retributive Justice for Gender-based Violence 117 2.5 Amnesties 121 3. Women insecurity due to social cultural reasons 123 3.1 Caste and Customs 124 3.2 Retributive Justice vs. Reconciliation 129 3.3 Conclusion 133 Chapter 4 Disarmament Demobilisation and Reintegration (DDR) 135 a way forward for Sri Lanka 1. DDR and Transitional Justice in Sri Lanka 137 1.1 Prosecutions 139 1.2 Truth telling 151 1.3 Amnesty 153 2. Gender, DDR & Reconciliation 157 3.Challenges for designing, policy making and evaluating DDR in Sri Lanka 174 3.1 Economic Integration 178 3.2 Social Integration 187 Chapter 5 Conclusion 195 vii Chapter 1 Introduction This thesis will discuss the applicability of transitional justice to the challenges ahead of women and female ex-combatants in post-conflict Sri Lanka. With the end of the three-decade long conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government Security Forces in 2009, the population of women in the North and East which comprised the majority of the total Sri Lankan population, were faced with post-conflict issues that created obstacles to restoring their lives. Amidst these critical challenges, the United Nations Secretary General appointed a Panel of Experts to advise him and to investigate the ways in which the Government of Sri Lanka could address challenges that fall within international human rights and humanitarian law. The Panel of Experts appointed by the Secretary General of the United Nations for Sri Lanka asserted that the Government of Sri Lanka should implement a transitional justice program as part of post-conflict peace-building (Andrieu 2010). Transitional justice is a process of peace building that is undertaken in a post-conflict phase judicially or non-judicially. Judicially, retributive justice takes place through trials, prosecutions and vetting programmes. Non- judicially, restorative justice takes place through truth commissions that lead to reintegration programmes for victims of conflict, civilian women and female ex-combatants in particular. Retributive justice that aims to address human rights violations through legal remedies focuses on repairing the crimes committed and bringing legal justice to the victims. Restorative justice promotes healing rather than hurting, moral learning, community participation 1 and community caring, respectful dialogue, forgiveness, responsibility, apology and making amends and, finally, citizens’ empowerment. However, tensions occur when these two aspects of justice are combined as transitional justice is implemented in different cultural contexts. The situation becomes even more perplexing when transitional justice is implemented with respect to post-conflict women’s issues.