By Pitasanna Shanmugathas

Under President Mahinda Rajapaksa’s leadership, the Sri Lankan civil war reached a brutal conclusion on May 18, 2009, ending a 25-year-long conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE), a separatist rebel group. Rooted in longstanding grievances, including discriminatory policies against Sri Lanka’s Tamil minority, the conflict saw the LTTE seeking an independent state in the North and East of Sri Lanka. During the final stages of the war, an estimated 40,000 Tamil civilians lost their lives, predominantly in the rebel-held North.

Throughout the conflict, both sides engaged in severe human rights abuses. The government perpetrated extrajudicial killings, enforced disappearances, and indiscriminate shelling of civilian areas, while the LTTE employed tactics such as suicide bombings, assassination of dissident Tamil politicians, ethnic cleansing of Muslims in the North, and forced recruitment of child soldiers. Despite the conflict’s end, the Rajapaksa government continued oppressive policies toward the Tamil community, including enforced disappearances and increasing militarization of land in the Tamil-dominated North of the country.

In response to international pressure, President Rajapaksa launched the Lessons Learnt and Reconciliation Commission (LLRC) in 2010, aimed at investigating wartime atrocities. However, the LRRC faced criticism for its limited mandate and lack of independence. President Ranil Wickremesinghe’s subsequent administration proposed a new truth and reconciliation commission in 2024, but scepticism remains about its credibility and effectiveness.

Achieving meaningful transitional justice in Sri Lanka requires a holistic approach encompassing truth-seeking, reconciliation efforts, and structural reforms addressing both political and economic inequalities. Only through such comprehensive measures can the country effectively address its historical injustices and lay the foundation for a peaceful and inclusive future.

Step 1: Incorporate the reforms of past commissions

Over recent decades, Sri Lankan governments have failed to implement the recommendations of numerous commissions they established to address human rights violations stemming from the civil war. These commissions, numbering at least ten since the 1990s, had been tasked with examining alleged human rights abuses. They include:

• The Udalagama Commission, established in 2006 to investigate serious human rights violations;
• The Lessons Learned Reconciliation Commission, formed in 2010 to promote truth and reconciliation;
• The Paranagama Commission focused on the fate of missing persons;
• The Consultation Task Force for Reconciliation Mechanisms, which conducted public consultations on transitional justice; and most recently,
• The Nawaz Commission, established in 2021 as an alternative to international accountability efforts.

Despite receiving testimony describing human rights abuses from victims’ families and witnesses, these commissions have often been criticized for their failure to translate findings into meaningful action, leading to disillusionment and frustration among those seeking justice. Moreover, a notable deficiency of these commissions lies in the fact that the Sri Lankan government selects politicians and academics to serve on them. This approach adopts a top-down method for implementing reforms deemed beneficial for the nation, without sufficiently involving stakeholders directly and indirectly impacted by the conflict. Because of this approach, the conclusions of these commissions do not reveal the gravity of the government’s atrocities. For instance, the Paranagama Commission acknowledged that the Sri Lankan Army’s shelling during the final stages of the war killed many civilians, but the Commission projected blame exclusively on the LTTE, asserting “this was an inevitable consequence of the LTTE’s refusal to permit civilians to leave their control in order to use them both as a shield and a pool for recruitment.”

An illustrative example of the disconnect fostered by the top-down approach is the ongoing daily protests by the mothers of disappeared Tamils, which commenced on February 20, 2017. These mothers, who walk the streets of the North holding up photos of their missing loved ones, demand answers from the Sri Lankan government regarding the fate of their children. Despite their relentless efforts, they have faced indifference and nonchalant responses from political leaders, such as then Prime Minister Ranil Wickremesinghe’s dismissive remarks in a 2016 interview with British Channel 4 News.

A genuine truth and reconciliation commission must incorporate the voices and perspectives of individuals like these mothers, who have first-hand experience of the conflict’s human toll. Despite past shortcomings, there is an opportunity to integrate valuable recommendations from previous commissions, such as the LLRC’s emphasis on equal land rights, media freedom, thorough investigation into human rights violations, and employment opportunities for affected communities. However, achieving meaningful transitional justice in Sri Lanka also necessitates a commitment to restructuring the political-constitutional system, which has historically marginalized minority voices and perpetuated majoritarian dominance.

Step 2: Make a commitment to reform Sri Lanka’s majoritarian political system

Meaningful transitional justice in Sri Lanka demands fundamental reforms to its majoritarian political system, which has historically marginalized minority communities, particularly the Tamil population. The current unitary state structure, inherited from British colonial rule, has entrenched power in the hands of the Sinhala-Buddhist majority, exacerbating ethnic tensions and suppressing minority rights. In post-independence Sri Lanka, the dominance of the Sinhala-Buddhist majority was reinforced through policies of ethnic outbidding by the two major political parties, the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). These parties competed to strip the Tamil minority of rights to appease Sinhala-Buddhist hardliners, leading to discriminatory legislation like the Sinhala Only Act, which made Sinhala the sole official language of the country, and the Standardization Act of 1971, which imposed higher test score requirements for Tamils than their Sinhala counterparts for university admission. Subsequent constitutions, including the 1972 Republican constitution and the 1978 constitution, entrenched this unitary structure, further marginalizing minority voices.

The explicit declaration of Sri Lanka as a unitary state served to symbolically reinforce Sinhala-Buddhist dominance and reject Tamil nationalist demands for federal autonomy. The establishment of the executive presidential system in 1978 by United National Party (UNP) President J. R. Jayewardene centralized power in the hands of the President, who holds authority over the appointment and dismissal of ministers, the dissolution of Parliament, the declaration of a state of emergency, and the appointment of judges. Creating the executive presidency enabled JR Jayewardene to enact draconian legislation such as the Prevention of Terrorism Act (PTA) in 1979. This law, still in effect today, allows the arbitrary detention of civilians suspected of threatening national security without due process, disproportionately affecting Tamil civilians and journalists critical of the government.

Devolving power to minority communities, particularly the Tamil population, is crucial for fostering genuine autonomy and self-governance.

The Union of Regions proposal, a constitutional reform proposal introduced by Sri Lankan President Chandrika Kumaratunga in 1995, offers a blueprint for such reforms. It advocated for the transformation of Sri Lanka from a unitary state into a union of regions, granting full executive and legislative authority to regional councils. These councils would have exclusive legislative powers within their jurisdictions and significant fiscal autonomy, enabling them to address the needs and aspirations of local communities effectively. Additionally, the proposals included safeguards to prevent the central government from unilaterally revoking powers delegated to regions, ensuring genuine autonomy and self-governance.

Acknowledging the challenges faced during past reform attempts, particularly during the civil war, is essential for genuine reconciliation. The role of the LTTE in obstructing constitutional reform efforts by assassinating advocates like Dr. Neelan Tiruchelvam who championed federal solutions must be recognized. In addition, the role of political party rivalry between the Sri Lanka Freedom Party (SLFP) and the UNP in obstructing the implementation of constitutional reform proposals must also be recognized.

A credible truth and reconciliation commission should incorporate past reform proposals, like the Union of Regions, into a new constitutional framework, ensuring the participation of all affected stakeholders. Furthermore, the repeal of oppressive laws such as the PTA is paramount. Overcoming resistance from extremist factions and political parties reluctant to relinquish centralized control is difficult and will require a concerted effort from all stakeholders, guided by a commitment to justice, inclusivity, and the promotion of fundamental rights and freedoms for all Sri Lankans.

Step 3: Political reform must be accompanied by economic reform for durable peace

Nevik Aiken, a researcher in transitional justice, emphasizes the critical link between economic redistribution and the success of truth and reconciliation efforts. Drawing parallels with post-apartheid South Africa, Aiken underscores that reconciliation becomes improbable without tangible economic changes. Author Arundhati Roy echoes this sentiment, pointing out that South Africa’s transition in the post-apartheid era lacked essential economic reforms, leading to continued socio-economic disparities despite political change.

In Sri Lanka, the neoliberal policies implemented since the 1970s, particularly under President J. R. Jayewardene, have exacerbated economic inequalities, resulting in significant social instability. This was evident in the economic recession in 2022, which culminated in the resignation of President Gotabaya Rajapaksa.

The neoliberal agenda in Sri Lanka marked a departure from previous socio-economic frameworks characterized by significant state intervention and investment in welfare programs. Policies such as privatization, deregulation, and trade liberalization, initiated by JR Jayewardene, prioritized capitalist exploitation over social welfare. The erosion of state-sponsored initiatives, such as the rice ration program and free education and healthcare, led to increased poverty and inequality. Successive governments, regardless of political affiliation, continued these neoliberal policies, neglecting the welfare of ordinary citizens. Chandrika Kumaratunga’s presidency witnessed accelerated privatization, while the Mahinda Rajapaksa administration’s ambitious commercial loan-funded infrastructure projects exacerbated the country’s debt burden. The trend continues under President Ranil Wickremesinghe, who advocates for further privatization and deregulation, sacrificing public services for elite interests.

These economic policies have widened the gap between the wealthy minority and the impoverished majority in Sri Lanka. Data from the Central Bank of Colombo in 2012 indicates that the wealthiest 20% of households control over half of the national income, while public investment in essential services like education lags. This growing disparity not only undermines social cohesion but also poses a significant obstacle to genuine transitional justice efforts.

To achieve lasting peace, Sri Lanka must prioritize comprehensive economic reforms. This includes radical wealth redistribution measures targeting the most impoverished communities affected by the conflict, strengthening welfare programs and social safety nets, and implementing progressive taxation policies to ensure the wealthy contribute proportionately to societal well-being. These reforms are essential for breaking the cycle of crisis and instability perpetuated by neoliberal exploitation and socio-economic disparities.

Conclusion: How to move on and how to deal with perpetrators?

A successful transitional justice process in Sri Lanka hinges on two key pillars: first, the implementation of recommendations from past truth and reconciliation commissions, and second, the reform of the country’s political and economic systems. It is crucial to involve stakeholders directly and indirectly impacted by the conflict in these reforms to address underlying grievances stemming from the ethnic conflict. However, there is significant disagreement within the Sri Lankan community regarding how to address perpetrators of abuses.

Lousie Mallinder, a professor at the Transitional Justice Institute, suggests that prosecuting perpetrators involves navigating complex political negotiations to achieve inclusive settlements and contribute to sustainable peace. The primary demand within the UN and the Sri Lankan Tamil community is for an independent investigation into war crime allegations. A potential trade-off in Sri Lanka involves communities affected by the conflict negotiating with the government to guarantee that perpetrators implicated in atrocities won’t face criminal prosecution if they participate in testifying alongside victims. This trade-off could shed light on accusations against them. Given that both the LTTE and the Sri Lankan government have been accused of atrocities, such a trade-off could be the best option for both Tamils and Sinhalese concerned about establishing a durable transitional justice process.

-Pitasanna Shanmugathas, Vermont Law & Graduate School,  is Deputy Interviews Managing Editor at Jurist where this article was originally featured