Fifteen Years After Sri Lanka’s Civil War Ended, a Different Approach to Transitional Justice is Needed

[Nadeshda Jayakody is an Australian qualified lawyer specializing in international human rights law, international humanitarian law (IHL), international criminal law and transitional justice. Nadeshda previously worked on accountability for human right and IHL violations that occurred in Sri Lanka as a Senior/Legal Officer at the Public Interest Advocacy Centre in Australia and as a Senior Researcher at the South Asian Centre for Legal Studies in Sri Lanka.]

[This piece is written in a personal capacity and does not reflect the views of any organization the author is or was affiliated with.]

This year marks 15 years since Sri Lanka’s brutal decades-long civil war ended. There are credible allegations all sides to the conflict committed serious human rights and international humanitarian law (IHL) violations, including incidents of sexual violence, torture, extrajudicial killings and enforced disappearances. The victims/survivors of these violations still await justice. Sri Lanka attempted to grapple with the past through transitional justice (TJ) processes, but these have largely failed. In the absence of meaningful accountability efforts in Sri Lanka, the international community has stepped in to a limited extent to fill this gap. While international involvement is necessary given the impunity in Sri Lanka, things need to change within the country for sustainable and inclusive peace. This means tackling barriers to implementing TJ, and the re-imagining of local TJ efforts to address, amongst other things, Sinhala-Buddhist nationalism; economic mismanagement and disenfranchisement; and state violence and impunity.

A brief history of transitional justice efforts in Sri Lanka

On 18 May 2009 Sri Lanka’s civil war ended when the Liberation Tigers of Tamil Eelam (LTTE), a Tamil separatist group, was militarily defeated. This defeat was led by brothers, then President Mahinda Rajapaksa and Defense Secretary Gotabaya Rajapaksa. In response to credible allegations of serious human rights and IHL violations, various domestic and international actors pressed the government to deal with Sri Lanka’s violent history through legitimate TJ processes. The Rajapaksa government largely ignored these calls.

In 2015 Maithripala Sirisena won power from the Rajapaksas and became president on a “good governance” platform. Sirisena’s government co-sponsored U.N. Human Rights Council Resolution 30/1, committing to establish several TJ mechanisms and enact constitutional and further reforms. This government set up an Office on Missing Persons (OMP), an Office for Reparations and implemented other measures, but failed to deliver on many of its commitments. Unfulfilled promises included reforming the constitution to devolve power from the central government to provinces, and establishing a special court to prosecute international crimes.

In November 2019, with the election of Gotabaya Rajapaksa as president, the majority of Sri Lankans effectively rejected the TJ agenda. In 2020 the Rajapaksas’ political party, which promulgated Sinhala-Buddhist nationalism, received an overwhelming parliamentary majority and Mahinda Rajapaksa became prime minister. This government rescinded support for TJ, withdrawing Sri Lanka’s co-sponsorship of U.N. resolutions, and the OMP and Office for Reparations were criticized as barely functioning. Also, the government actively obstructed the prosecution of emblematic human rights cases. And the president pardoned at least one individual who had previously been found guilty of wartime-related crimes.

Then in March 2022, an unprecedent grassroots movement emerged in Sri Lanka in response to the economic crisis marked by high inflation and basic goods shortages. Many Sri Lankans protested on the streets, demanding political change, the curbing of state powers and accountability (primarily for corruption). Mahinda and Gotabaya Rajapaksa resigned and Ranil Wickremasinghe became president.

Although the Rajapasksas are no longer in power, Wickremasinghe has done little to address the structural issues that led to the economic crisis, let alone the civil war. Immediately after becoming president, Wickremasinghe oversaw the violent repression of protesters. In addition, rights groups criticized the government’s recent proposal to create a truth commission for ignoring victims’ needs and being an attempt to alleviate international scrutiny, especially at the U.N. Human Rights Council.

The international community has minimally stepped in to fill the accountability vacuum, for example through attempts at bringing universal and extraterritorial jurisdiction cases; the establishment of the U.N.’s Sri Lanka Accountability Project; and the sanctioning of alleged perpetrators.

Accountability measures at the international level should be amplified, particularly because many victims justifiably do not trust the Sri Lankan government to address rights violations. However, for long-term change in Sri Lanka, genuine, victim and people-centered TJ processes are needed in-country. For this to occur, it is important to examine why TJ failed in Sri Lanka to date and how it could succeed in the future. 

With elections in Sri Lanka set to be held later this year, and on the back of protests that saw a sitting president and prime minister resign due to lack of accountability, there is a small opening to revisit these issues and reimagine how TJ could work.

How did Sri Lanka get here?  

A key argument made about why TJ efforts largely failed in Sri Lanka is that there is a lack of political will. Although this is true, it is important to understand what led to an absence of political will. It is arguable that all postwar governments either rejected TJ efforts outright or limited their implementation to: 1) protect themselves — for example Mahinda and Gotabaya Rajapsaksa are credibly accused of committing serious violations — and; 2) because TJ is not perceived as politically advantageous to support. There are several interconnected reasons for the latter.

First, Sri Lanka as an independent, postcolonial state was founded on Sinhala-Buddhist nationalism, the idea that the Sinhala-Buddhist identity takes primacy, to the exclusion of minority identities. This ideology continues to permeate state and societal structures. While Sinhala is no longer the only official language, Buddhism is given prominence in the constitution and state powers are centralized, meaning Tamil-majority provinces in the country’s north and east have limited decision-making powers and are governed by a Sinhala-Buddhist state structure. TJ-related measures to disrupt this status-quo, including demilitarization in Tamil areas, returning land back to Tamil and Muslim communities, and enacting constitutional reforms are promoted as being anti-Sinhala/Buddhist by nationalists.

Second, there remains a view that efforts to prosecute wartime violations are partial against the security forces, and an attack on “war heroes” – security force personnel, many who are low ranking soldiers from impoverished backgrounds. Some Sri Lankans are opposed to prosecuting security force members, grateful for their role in ending a brutal, protracted and seemingly unwinnable war. These views fails to recognize that: 1) inquiries mandated by the Sri Lankan government itself have found wrongdoing by the security forces during the civil war and other periods including the Marxist uprisings in the south; 2) accountability efforts are not partial  — there are simply limited LTTE members to prosecute as many high ranking individuals were killed on the battlefield; and; 3) prosecutors would likely prioritize high ranking security force members who ordered violations (to target limited prosecutorial resources for maximum impact) not the low ranking “foot soldiers.”

Third, some consider TJ processes to be minority-driven, focusing on perceived Tamil only needs for justice and self-determination. This is exacerbated by the fact that the Sinhala media rarely covers TJ topics.  It is important to frame TJ not as a framework that pits ethnicities against one another, but as an exercise to address the root causes of the conflict, cycles of violence Sri Lankans from all communities have experienced, and more recently the economic crisis. TJ taken in its most transformative sense should grapple with structural, interrelated issues including: state repression, violence, corruption and impunity; the nature of the Sinhala-Buddhist state and rights of ethnic minorities; deterioration of the rule of law and governance; economic disenfranchisement; and discrimination based on intersecting identities such as ethnicity, religion, gender, class and caste. TJ should also be seen as a long-term, ongoing project as structural issues take generations to resolve.

Fourth, some view TJ as a form of western hypocrisy and/or imposition because powerful states conveniently ignore their own violations and those of their allies but order less powerful states to tackle theirs. Further, TJ is critiqued for not meeting local needs and being a form of post-colonial epistemic violence. Although these arguments are valid, this does not detract from the fact that — dealing with state violence and impunity, as well as improving interethnic relations — are locally owned priorities in Sri Lanka. Sri Lankans have a tradition of using legal and non-legal, and formal and informal avenues for progressing these ideas that underpin TJ.

A possible path forward  

While progressing TJ measures already agreed to in U.N Resolution 30/1 in line with victims’ wishes and needs, the Sri Lankan government should tackle barriers to their implementation mentioned above. The government could take the following steps, working in partnership with victims, civil society and the broader Sri Lankan community: 

• Work on dismantling Sinhala-Buddhist nationalist ideologies and structures through constitutional reforms (for instance, devolving power to the provinces and removing the prominence given to Buddhism) and enacting educational campaigns.
• Dispel myths about TJ in Sri Lanka, for example, that prosecutions seek to “target” security force members, and that notions of justice and accountability are western in nature. This could be done through widespread awareness raising campaigns.
• Communicate widely through different forms of media that TJ processes, including prosecutions, aim to benefit all communities; seek to dismantle structures that perpetuate state violence and impunity; and can respond to local needs if properly designed and delivered. For example, devolution of power from the central government to provinces not only benefits northern and eastern provinces but all provinces. This reform will take power away from the widely distrusted central government and foster locally led decision-making.

The international community should continue to fill accountability gaps through universal jurisdiction cases, sanctions and other measures. It should also support tackling barriers to the implementation of TJ in Sri Lanka, taking the lead from victims, their communities and civil society groups when doing so. These groups are best placed to determine the supports needed in-country.

Fifteen years without justice is far too long and victims and all Sri Lankans deserve better.