ArticlePDF Available

Justice in Transition-Victims, Forgiveness and Truth-Seeking in Post-War Sri Lanka

Authors:
!!!LST!Review!Volume 25, Issue 331 May 2015Truth, Memory and Justice
! !
!
Justice(in(Transition?(
Victims,(Forgiveness(and(Truth7Seeking((
in(Post7War(Sri(Lanka(
_______________________________________
Ambika Satkunanathan
This article, discusses issues of transitional justice in post-war Sri Lanka by responding to
certain aspects of the findings of Gehan Gunatilleke’s study titled ‘Truth, Memory and
Justice’, an extract which is published in this edition of the LST Review, and by drawing
from research conducted in the North and East from 2009 to 2014.
Gunatilleke’s report seeks to challenge the notion of a “Sri Lankan approach” to
transitional justice that is referred to as restorative justice and which gives primacy to
forgiveness, as opposed to retributive justice that calls for accountability and punishment.
As set out by former Minister of External Affairs G.L. Pieris, the Sri Lankan approach is a
‘home grown, home spun mechanism’ which has the capacity to bring ‘people together,
accentuating, not the things that divide them, but the whole reservoir of values which all
the people of Sri Lanka share’.1 Scholars such as Sri Lankan anthropologist Michael
Roberts have argued in similar vein that the ‘bitterness wrought by the ethnic conflict’
could be fuelling the need for retribution, which in turn they fear might lead to the
fabrication of allegations of war crimes by Tamils. Hence, the narrative that sought to
construct a Sri Lankan notion of transitional justice posited quests for truth and justice as
antithetical, while forgetting, forgiving and leaving the past behind are viewed as integral
to peace and reconciliation in post-war Sri Lanka.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Ambika Satkunanathan is a researcher and activist based in Sri Lanka. She is currently
functioning as National Legal Advisor, Transitional Justice to the Office of the UN Resident
Coordinator in Colombo. Her research has focused on transitional justice, militarisation, and
gender and Tamil nationalism. Her publications include, ''The Executive and the Shadow State in
Sri Lanka" in Asanga Welikala (Ed) (2015)
Reforming Sri Lankan Presidentialism: Provenance,
Problems and Prospects
; ''Sri Lanka: The Impact of Militarisation on Women" in the
Oxford
Handbook of Gender and Conflict
(forthcoming), and "Creating Insecurity or Securing the State?
Arbitrary Arrest and Detention in the Context of the Ethnic Conflict in Sri Lanka", in
the
Routledge Handbook of Human Rights in Asia
(forthcoming). She is Chairperson of the Neelan
Tiruchelvam Trust, an indigenous philanthropic organisation in Sri Lanka, and an Advisory Board
Member of Suriya Women’s Development Centre, Batticaloa, in the Eastern Province. She has a
Master of Laws (Human Rights) degree from the University of Nottingham, where she was
Chevening Scholar 2001-2, and earned bachelor’s degrees (LL.B / B.A) at Monash University,
Australia.
1
Insurgency and Strengthening Governance
, Speech by Prof. G.L. Peiris, Minister of External
Affairs at the Shangri-La Dialogue 2010, available at
http://www.iiss.org/en/events/shangri%20la%20dialogue/archive/shangri-la-dialogue-2010-
0a26/fifth-plenary-session-cf89/g-l-peiris-748b. Accessed on 24 July 2015.
!!!
!
Forced forgetting and forgiveness
Daniel Philpott, a leading scholar on the notion of forgiveness, states forgiveness is ‘the
most dramatically restorative practice . . . which involves not merely a victim releasing her
perpetrator of claims but also her constructive invitation to a better future’.2 He goes on to
state that a ‘victim retains his own freedom to decide how he will respond to the perpetrator
and thus retains a measure of control over whether the standing victory of the injustice is
defeated’.3 This notion of forgiveness views the victim or victims’ groups as equal citizens
with the power to make the decision to forgive. In reality, victims do not always have such
equal status in society. In Sri Lanka, acts of commission and omission by the government
led the Tamil population to believe there was little possibility they would be treated as
equal citizens and included as full members of a multi-ethnic polity. Instead, those in the
conflict-affected areas were made to feel they were living in an occupied territory. As the
victor of the war, the government of the day attempted to impose its will on the conflict-
affected community and force them to adopt a Sri Lankan identity that was
overwhelmingly Sinhala Buddhist, and in the process seemed determined to quash what
the people view as their distinct language, culture, heritage, and history.
Philpott argues that ‘the standing message of the injustice is defeated further by the
victim’s decision no longer to hold the perpetrator’s wrong against him and to view the
perpetrator as a person in good standing’.4 In a post-war context where the government
shows reluctance to investigate past crimes, injustice remains and victims are unable to
exercise their rights, the victim forgiving the perpetrator will only further entrench the
‘standing message of the injustice’5 and ‘a political push toward forgiveness can too easily
be exploited by politicians to hide the truth about the past.’6 In such instances, the
perpetrator’s wrongs might be one of the few tools at the disposal of the victim to exert
pressure on the state and political actors to engage substantively in the process of restoring
a right relationship. The Tamil community’s use of alleged human rights and humanitarian
law violations committed by the government of Sri Lanka as the main advocacy platform to
lobby for international intervention in their quest for justice can be understood as their
strategy to force the government to acknowledge historical grievances and violations, bring
into being mechanisms to deal with these allegations, as well as achieve a political solution
to the ethnic conflict. Hence, forgiveness as Philpott envisages would be applicable only at
the point at which a certain level of relationship and trust restoration has already taken
place between the communities. Otherwise, some fear that forgiving will not only lead to
forgetting, but might ‘induce a failure of recognition’. 7In post-war Sri Lanka instead of such
restoration, the government’s strategy has only served to generate anger, resentment and a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2 Daniel Philpott,
Just and Unjust Peace: An Ethic of Political Reconciliation
(Oxford: Oxford
University Press,2012), 6.
3
Ibid
, 264.
4
Ibid
, 266.
5
Ibid
, 266.
6 Brandon Hamber, ‘Forgiveness and Reconciliation: Paradise Lost or Pragmatism,’ Journal of Peace
Psychology 13(1) (2007): 119.
7 John Axelrad Cahan, ‘Reconciliation or Reconstruction? Further Thoughts on Political Forgiveness’,
Polity
45 (2) (2013): 182.
!!!LST!Review!Volume 25, Issue 331 May 2015Truth, Memory and Justice
! !
!
sense of disenfranchisement amongst the Tamil people, which in the short-term will make
reconciliation impossible, and in the long-term form the catalyst for another conflict.
Instead of effecting social reconciliation and re-integration, it will, in the words of Judith
Butler, only produce an ‘outraged and humiliated and furious people’.8
Philpott argues that it is not always necessary to involve the State in political forgiveness
because ‘at its simplest it involves an individual victim and an individual perpetrator of a
political injustice’.9 Yet, the reality is that, in instances of conflicts caused by the assertion
of, or the struggle for the recognition of a certain identity, and demands for redress for
discrimination committed against a group because of that identity, even if individuals
might be willing to forgive the perpetrator, the need to secure the political claims of their
community might render forgiveness impossible. More important, since in the case of
political injustice, it is usually agents of the state who perpetrate crimes in the name of the
State, as in Sri Lanka, political forgiveness at an individual level will leave macro political
wounds and structural injustice unaddressed. Hence, as Andrew Schaap points out, there
has to be awareness that it is the willingness of affected persons to forgive and share the
same political institutions as their oppressors that enables discourse on reconciliation.
Hence, we have to also recognise that persons subjected to discrimination and violence have
the right not to forgive, thereby requiring perpetrators to provide reasons to forgive10,
whether it is in relation to the crimes committed by the State against the Tamils and
Muslims, those committed by the LTTE against the Sinhalese or Muslims, or those
committed by non-LTTE Tamil armed groups against the Tamil community. Where the
Tamil community is concerned, the continued denial of the existence of the ethnic conflict
by the government and its resultant failure to address the root causes of the conflict, such
as discrimination, has led to an impasse in achieving a political settlement. This in turn
makes the political institutions established by the State, lack legitimacy in the eyes of the
Tamils, who due to certain acts of the State, such as militarisation of the conflict-affected
areas, military acquisition of private land in these areas and ineffectual implementation of
Tamil as an official language, continue to feel they are not recognized as equal citizens. For
instance, a number of Tamils called for the boycott of the Northern Provincial Council
elections in 2013 as they view these structures as inadequate to address the political
demands of the Tamil community.11
When will it be safe to tell the truth?
The section titled ‘Telling Others’, in which Gunatilleke lists a number of reasons families
affected by rights violations have not talked about it with others, the fear of reprisals by
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8Interview with Judith Butler’,
The Believer Magazine,
May 2003 at
www.believermag.com/issues/200305/?read=interview_butler
9
Supra
n.2, 276.
10 Andrew Schaap, ‘Reconciliation as Ideology and Politics,’
Constellations
15(2) (2008): 251.
11 Tamil Civil Society Memo to the TNA regarding the Eastern Provincial Council Elections, 29 July
2012 at http://groundviews.org/2012/07/29/tamil-civil-society-memo-to-the-tna-regarding-the-
eastern-provincial-council-elections/. Accessed on 10 July 2015.
!!!
!
perpetrators, and the fear of being stigmatised and labeled as the family of someone who
disappeared or was extra-judicially executed, are not mentioned as reasons for their silence.
Yet, during the armed conflict, and even following the end of the war in May 2009, the
disappeared or extra-judicially killed were viewed by the state as those with links to the
LTTE, which resulted in communities avoiding interaction with these families due to the
fear that these families could be arrested, disappeared or harassed by the security forces
any time due to their perceived link to the LTTE via the dead or disappeared family
member.12
Gunatilleke’s study finds that many participants are skeptical about obtaining justice. This
finding is not surprising and can be directly linked to the breakdown of the rule of law, and
the resultant inability of people to live without fear of violence or seek redress for human
rights violations, which in turn leads to lack of faith in public institutions13; this illustrates
a breakdown of political relationships. Colleen Murphy asserts the non-instrumental value
of the rule of law and claims that the erosion of the rule of law is damaging to political
relationships as it adversely impacts on the social order, which is based on reciprocity
between citizens and State officials and a respect for individual agency that restricts abuse
of political power.14 As illustrated by the Sri Lankan context, the abuse of political power
and lack of respect for individual agency during conflict or repressive regimes leads to the
erosion of reciprocity, and thereby the erosion of political trust. Hence, respect for the rule
of law plays an integral role in re-building trust between the citizen and the State.
Murphy states that the value of trust is, like that of the rule of law, not reducible to its
instrumental role and argues that respect and reciprocity are realised when political
relationships are predicated on two factors: default political trust, i.e. where trust exists as
a matter of course and instead of citizens and officials giving each other a positive reason to
be trusted there is reciprocal presumption of the existence of competence decency and lack
of ill-will, and trust responsiveness, i.e. acknowledging the right of other citizens and
officials to make demands and fulfilling their expectations. She acknowledges that the
question of whether it is reasonable to adopt a default attitude of trust depends on the
social and political environment. Murphy’s position is that when people are not trust
responsive, it is because they only care about the good opinion of a subset of the population
or there is no publicity about the lack of trust responsiveness, which means officials will not
have to be concerned about losing the good opinion of others. A serious erosion of the fabric
of society would therefore lead to lack of general trust and trust responsiveness. In the Sri
Lankan context, the 30 year armed conflict has created default mutual mistrust between
the communities, particularly the Tamils and Sinhalese, which has been exacerbated by
aggressive post-war militarisation of the conflict-affected areas and the curtailment of the
rights of those living in those areas coupled with a general lack of respect for the rule of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12 See Ambika Satkunanathan, ‘Sri Lanka: Impact of Militarisation on Women’,
Oxford Handbook on
Gender and Conflict
(Oxford: Oxford University Press, forthcoming)
13 ‘Sri Lanka’,
Freedom in the World 2013
(Washington: Freedom House, 2013). Available at
https://www.freedomhouse.org/report/freedom-world/2013/sri-lanka#.Vbr6OqayWfR. Accessed on
31 July 2015.
14 Colleen Murphy,
A Moral Theory of Political Reconciliation
(Cambridge: Cambridge University
Press, 2012).
!!!LST!Review!Volume 25, Issue 331 May 2015Truth, Memory and Justice
! !
!
law, impunity and corruption.
In cases of human rights abuses, particularly during an internal conflict, people may be
aware that abuses took place, but many may be ignorant of the nature and extent of the
violations, and erosion of human relations. Especially between communities, these abuses
would have led to mistrust and fear. 15 It has been observed that as a result ‘A general
culture of secrecy, denial and disclosure may develop, not only among those in power, but
also among those in a subordinate position’.16 Such denial can result in collective amnesia
which can have dangerous consequences, from creating a culture of suspicion and impunity,
to shame and self-blame on the part of the victims.
Therefore, in view of building ‘trust relations’ as an integral component of restoration, the
focus of any truth seeking exercise should not be confined to acts such as murder, torture or
disappearances, as it would ignore the larger context within which these crimes were
committed and fail to take into account the various actors and factors that enabled the
crimes to take place. Examining and establishing the broader context of the violations can
assist victims locate their experiences within the larger political setting. In the aftermath of
Apartheid, the South African Truth and Reconciliation Commission conducted hearings for
professionals and institutions with the aim of inquiring into their participation in apartheid
but abandoned the scheme due to the lack of response by the professional community and
other sectors. 17 The lack of response illustrates that truth-seeking processes can be
unsuccessful when people are forced to engage in introspection and truth-seeking before
they are ready to do, particularly in the absence of default political trust and trust
responsiveness. This however also begs the question whether people will ever be ready,
unless processes are established to encourage and enable them to progress towards
engaging actively in a truth-seeking process.
Minow has a word of caution about truth seeking exercises, which she states should not be
used as therapy because it would then ignore “politics, shortchange justice issues, and treat
survivors, and their recovery, as a means toward a better society rather than as persons
with dignity and entitlements to justice”18. Care should therefore be taken to ensure the
truth seeking process does not result in victims being used as a means of societal catharsis.
While it can be argued the victim benefits from this process it cannot be denied that a one-
hour session testifying at the truth commission or trial will not provide respite to the victim
and enable him/her to deal with psychological “baggage”.19 Hence, truth telling is a
complex process that has to be crafted with care in consultation with affected persons to
ensure it strengthens and is complementary to broader transitional justice initiatives. Most
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
15Margaret Popkin and Naomi Roht-Arriaza, ‘Truth as Justice: Investigatory Commissions in Latin
America’, in Kritz (ed)
Transitional Justice, p. 263.
16 Nora Sveaas and Nils Johan Lavik, “Psychological aspects of human rights violations: The
importance of justice and reconciliation: (2000) 69
Nordic Journal of International Law
, p.42.
17 David Dyenhaus,
Judging the Judges, Judging Ourselves, Truth, Reconciliation and the Apartheid
Legal Order
1998, p. 29.
18 Martha Minow,
Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence
(Boston: Beacon Press, 1998) 80.
19
Ibid
, p.73.
!!!
!
importantly, since trust plays a key role in the success of any truth-seeking process and
considerable resources and energy have to be allocated to re-building inter and intra-
community relations with the aim of enabling a context in which default political and trust
responsiveness exist.
Gender (in) justice and transitional justice processes
This sections focuses on women affected by sexual violence/exploitation of women and their
place and role in transitional justice processes, since this category of ‘victims’ has garnered
considerable attention in discussions of transitional justice in Sri Lanka. Further, this
discussion will also enable an exploration of the notion of victimhood. Despite the visibility
of the issue in transitional justice discourse, locally it has been challenging to document
cases of sexual violence that took place during the war since women are reluctant to speak
of it openly due to numerous reasons, including fear of reprisals from perpetrators,
particularly if they happen to be State actors, social stigma and belief they will not obtain
any redress. Even when they share their stories, most often they do not wish these stories
to be made public. The silence they maintain, particularly following the end of the war, was
possibly their way of normalising life and switching to survival mode in the militarised and
repressive post-war phase. They may also maintain silence due to fear of losing control of
their stories once they are in the open. When a story of sexual violence becomes public,
numerous actors including the state, the diaspora, human rights activists, and political
parties among others, capture the story, which is then portrayed and used in different ways
to further varied agendas. Although such strategies might bring short-term political
rewards, ‘conscious or unconscious manipulation of victims by politically “hijacking” the
victim issue’ can alienate victims and is ‘seriously counter- productive to sustainable
reconciliation’.20
More importantly, women in the conflict-affected areas should not be viewed as passive
victims waiting for others to ‘recover’ their stories. These women have faced unimaginable
challenges and have a nuanced understanding of the truth they have to share and truth
they have to hide in order to navigate their lives, both within the private and public
spheres. In relation to women affected by sexual violence, while the harm they have
suffered has to be acknowledged and redress provided, it cannot be denied that the
perpetuation of victimhood can be disempowering and create dependency.
The Politics of Victimhood
Luc Huyse classifies victims of conflict on the basis of three broad distinctions, namely:
individual/collective victims (the victim of enforced disappearance/members of a particular
community who are targeted subject to enforced disappearances), direct/indirect victims
(someone who is subject to enforced disappearance/the family of the victim of enforced
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20 David Bloomfield, Teresa Barnes & Luc Huyse (eds.)
Reconciliation After Violent Conflict: A
Handbook
(Stockholm: International IDEA, 2003), 61.
!!!LST!Review!Volume 25, Issue 331 May 2015Truth, Memory and Justice
! !
!
disappearance) and generational victims (those who have been victimised/the children and
even grand-children of those victimised who might still be dealing with its consequences,
even if only emotionally as they cope with bitterness and trauma that has been passed
down).21 In Sri Lanka very little work has been done to ascertain the generational impact of
human rights violations. For instance, it would be useful to ascertain how the children and
grand-children of those who disappeared during the JVP insurrection in the late 1980s
have dealt with their loss, and its impact on their lives. Within the Tamil community, as
illustrated by narratives, particularly of second-generation Tamils in the diaspora, it is
clear the trauma, fear, anger and bitterness caused by the ethnic conflict has been passed
down to the children and grandchildren of those who were affected by it. The riots of 1983
for instance, are deeply embedded in the psyches of the people and passed down to the next
generation.22 As Huyse points out, being publicly identified as a ‘victim’ is a process that
involves a number of mechanisms, not merely whether one has been physically,
psychologically or economically harmed.23 Rather, customs, social norms, politics, law and
culture are also factors that determine who is categorised as a victim. For instance,
following the end of the war even those who were forcibly recruited by the LTTE and served
only for a few hours or days were and continue to be viewed as criminals, while the way in
which their rights were violated through forced conscription was ignored.
Determining eligibility for reparations is a process that demands victim categories to be
defined and hence has the potential to exacerbate or ignore the harm suffered by certain
victim-survivors over others. For instance, in the case of disappearances, in Sri Lanka, like
in other contexts, the families left behind face innumerable challenges and women, many
who for the first time in their lives have become breadwinners for their families, find it
extremely difficult to fulfill the basic needs of their families. There are instances women
were forced to declare their husbands dead in order to access benefits or compensation due
to economic pressure. Despite this, reparation is often provided only for the disappeared
person and not for the harm caused to the family member left behind. While Guatemala
and Peru recognised the impact of disappearances on family members, the South Africa
process, perhaps unwittingly, created a hierarchy of victims by categorising them as
primary and secondary victims, and providing reparations only if the primary victim was
dead. When providing reparations to those who were impacted by the disappearance a
number of issues have to be considered; for instance, many women family members are
subject to sexual abuse and harassment when searching for their disappeared family
member; this is most often at the hands of the military and police. Are these realities then
the collective reality of the victim –- part of the disappearance, or is it a separate crime? As
the report by the International Centre for Transitional Justice (ICTJ) on the impact of
disappearances on women points out, this illustrates the gendered impact of
disappearances and could be viewed as part of the crime of disappearance. But reporting it
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
21
Ibid
, 54.
22 The blog of a local journalist Thulasi Muttulingham is a case in point. Although she was only two
years old when the riots took place and says she cannot remember it, she vividly describes based
on what she has been told by her mother. https://eyeofthecylone.wordpress.com/2012/07/23/jaffna-
during-the-83-riots/
23
Ibid
, 57.
!!!
!
as a separate violation might strengthen women’s ability to access redress and services.24 In
Sri Lanka, women who have faced sexual harassment, extortion and even sexual abuse in
their search for the disappeared family member have not come forward to lodge complaints;
they have instead approached trusted community organisations and activists to receive
either emotional, livelihood or medical support. Reiterating the need to focus on families as
well the person who was the victim, the International Criminal Court in its recent decision
in the Lubanga case stated that those who suffered direct harm as well as those that
suffered due to the impact of it are entitled to reparations; the criteria used to determine
eligibility should be whether there was a close personal relationship between victim and
indirect victim.25
Determining eligibility for reparations programmes can also result in the construction of a
hierarchy of suffering and crimes; for instance, political violence will trump socio-economic
violations. Therefore, focusing on specific violations and victims can result in side-lining, or
ignoring the system and structures that sustained discrimination, marginalisation and
violence. Where women are concerned, the specific crime that receives the most attention is
sexual violence while other violations and issues of concern to the victim-survivor, such as
socio-economic issues, are sidelined. The link between economic vulnerability, sexual
violence, however, cannot be ignored because in the conflict-affected areas, economic needs
are pushing women into exploitative relationships with both the military and civilians. For
instance, in the North, due to the difficulty faced by women in completing the construction
of houses provided via the Indian Housing Project (IHP), there have been instances they
have depended on masons and contractors who have entered into relationships with
women, exploited them financially, and after a few months absconded.26
Given the lack of options, in many instances marginalised groups, such as women, use the
dominant paradigm of victimhood to gain space to makes their voices and stories heard,
particularly to directly address those in positions of power and authority. Yet, processes
that focus solely on the victim may write history in terms of victim-hood rather than rights.
Non-government organisations contribute to this one-dimensional categorisation of victims
by ignoring the multiple and complex identities of affected persons, and instead
overstressing their victimhood to the detriment of their other ‘experiences, resources,
capacities, interests and aspirations, which are equally important in defining and
positioning them as individuals and citizens’.27 Hence, in order to avoid writing history in
victimhood, the ‘good victim’ should not be trotted out to perform and tell her sad story and
cry; instead they should be empowered to become change agents. Enabling them to speak
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24
The Disappeared and the Invisible: Revealing the Enduring Impact of Disappearances on Women
(New York: International Centre for Transitional Justice, 2015) at
https://www.ictj.org/sites/default/files/ICTJ-Global-Gender-Disappearances-2015.pdf. Accessed on
24 July 2015.
25 Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas
Lubanga (Decision Establishing the Principles and Procedures to be Applied to Reparations) ICC-
01/04-01/06 (7 August 2015).
26 Shadow report on the impact of the Indian housing project on conflict-affected women in the North
and East of Sri Lanka. Submitted to the CEDAW Committee review of the combined 4th and 5th
periodic reports of India, June 2014.
27
Supra
n.19, 59
!!!LST!Review!Volume 25, Issue 331 May 2015Truth, Memory and Justice
! !
!
for and about themselves, at their convenience, within their comfort zone, instead of others
speaking on behalf of, or speaking about them, is the first step in this process.
Memorialisation and the grievable life
Gunatilleke’s section on memorialising sets out the varied views of the interviewees on the
issue. As Butler says, ‘People need to be grieved; loss needs to be acknowledged publicly,
because it helps to confer a sense of reality on the loss but also because it makes it known
that this was a real life…The life doesn’t simply get erased. It gets imprinted and
remembered. This strikes me as a dignified thing to do…Until we learn that other lives are
equally grievable and have an equal demand on us to be grieved,- especially the ones that
we’ve helped to eliminate, - I’m not sure we’ll really be on the way to overcoming the
problem of dehumanisation’.28
Yet, memorialisation can also be a driver of new conflict if memorial cultures are stuck in
entrenched ideological positions, since remembering also sustains antagonism and
solidarity. Martha Minow points out the danger of too much memory and too little
memory.29 Too much memory might lead to the ‘enshrinement of victim-hood’ while too
little memory might result in ‘insufficient memorialising of victims and survivors’. 30
Personal trauma, such as sexual violence, is mobilised for political reasons and can be
manipulated by different interest groups. As Lorraine Ryan states ‘collective memory is
fluid and dynamic…a reflection of the collective identity of a group or nation, as a
consequence of which it constitutes an immensely valuable tool in any power consolidation
process’. For instance, the Parents Circle-Families Forum that works in Israel and
Palestine recognises that it cannot be assumed that victims and families of victims are
acting to reduce or even eliminate the conflict when they become actively involved in
advocacy and activism. Instead, bereaved families who rely on the empathy and public
standing can also act to deepen conflict and arouse nationalistic feelings.31
Conclusion
The increasing nexus between the liberal peace-building paradigm and transitional justice
makes the latter, vulnerable to the ‘same flaws and critiques of the peace-building
agenda,’32 such as its one-size-fits-all approach. 33 Further, its tendency to ignore social and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28 ‘Interview with Judith Butler’,
The Believer Magazine,
May 2003 at
www.believermag.com/issues/200305/?read=interview_butler
29
Supra
n.17, pp 2-5.
30
Ibid
.
31
Victim Empowerment and Peace-building: Exploring the Role of Local Foundations in Supporting
Victim Empowerment Processes in Regions of Conflict
(Belfast: Foundations for Peace Network,
2008) 28.
32 Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional
Justice,’ Global Society 21(4) (2007): 586.
33 Patricia Lundy and Mark McGovern, ‘Whose Justice? Rethinking Transitional Justice from the
!!!
!
gender injustice can also result in a narrowing in the scope of and the depoliticisation of
transitional justice processes.34 In reality, in societies emerging from conflict, it is most
likely that identity politics will continue to impact on transitional justice processes. This
means there is a danger that reconciliation could be made contingent upon a ‘population
within a state coming to think of itself as a people,’, i.e. force groups to give up certain
identities and instead to embrace an identity which is touted as a collective/common
identity but in reality is based on elements important only to the dominant group within
that community.35 This will most likely be done with the purpose of denying the political
claims of a specific community. Schaap points out that reconciliation ‘perpetuates
assimilation to the extent that it takes for granted one nation that needs to be healed
rather than recognising two (or more) distinct political communities.’36 Communities might
refuse to articulate political claims in terms of reconciliation for this very reason. For
example, in Sri Lanka where the government has appropriated the term ‘reconciliation’ to
construct a narrative of a postwar Sri Lanka in which the rights of non-majority
communities are being protected and their concerns addressed, there are deep cleavages
within civil society regarding the form and manner in which political demands are
articulated. While some openly challenge and counter the State’s dismissal of the ethno-
political nature of the conflict and the need for a political solution, others believe that
focusing on the political aspect of the conflict will derail reconciliation efforts and hence
work within the paradigm crafted by the State which avoids dealing with issues of truth,
justice and political rights.37
Crafting transitional justice processes that satisfy all stakeholders and protect the rights
and well-being of all affected persons is a complicated task riddled with a number of risks,
not least further victimisation of those affected by the armed conflict. Integral to ensuring
affected persons are not re-victimised is enabling them to articulate their concerns freely
and without fear, without which a truth-seeking exercise will be ineffective and
unsuccessful. In order to achieve this, it is imperative that an environment in which
default political trust and trust responsiveness and respect for the rule of law exist is
created.
!
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Bottom Up,’ Journal of Law & Society 35(2) (2008): 277.
34 Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections,’ Third World
Quarterly 29(2) (2008): pp.275289.
35
Supra
n.9, 251.
36
Ibid
, 255.
37 Ambika Satkunanathan, ‘Sri Lanka Remembers to Forget,’ Open Security, 21 May 2013,
http://www.opendemocracy.net/opensecurity/ambika-satkunanathan/sri-lanka-remembers-to-forget
(accessed 20 July 2015)
Article
While the dominant human rights discourse on transitional justice constitutes a mix of reinforcing aims that seek to “make peace with” a violent past, this article complicates this notion by exploring how affective memories can prevent individuals from envisioning a future for themselves in which their individual and their nation's past is safely left behind. In the context of ongoing debates over whether to remember or forget a country's traumatic past, the article will show how affective memories of violence and disappearance prevail and disrupt the reconciliation paradigm, and need to be taken into account in transitional justice processes.
Article
This article critically reflects on the ways in which the global project of transitional justice is channelled or streamlined in its scope of application. Using the categories of when, to whom and for what transitional justice applies, it argues that transitional justice is typically constructed to focus on specific sets of actors for specific sets of crimes. This results in a fairly narrow interpretation of violence within a somewhat artificial time frame and to the exclusion of external actors. The article engages themes of gender, power and structural violence to caution against the narrowing and depoliticisation of transitional justice.
  • Bottom Up
Bottom Up,' Journal of Law & Society 35(2) (2008): 277.
Sri Lanka Remembers to Forget
  • Ambika Satkunanathan
Ambika Satkunanathan, 'Sri Lanka Remembers to Forget,' Open Security, 21 May 2013, http://www.opendemocracy.net/opensecurity/ambika-satkunanathan/sri-lanka-remembers-to-forget (accessed 20 July 2015)