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Following three decades of bloody and protracted civil war between government forces and the LTTE, the group was dismantled in May 2009. As reported by the U.N. panel formed by Secretary General Ban Ki-moon, an estimated 40,000 civilians died during the last months of the fighting while the government collected 65,000 claims of enforced disappearances during 1995 to 2016. However, despite transitional justice being an essential matter, none of the eight UN Human Rights Council (UNHRC) resolutions adopted have brought about a sustainable peace. Although there is an acknowledgement of the significance of including diasporas, refugees and Internally Displaced Persons (IDPs) in transitional justice, transitional justice procedures have a limited capacity to deal directly with displacement. Consequently, refugees are mostly omitted from significant involvement in transitional justice undertakings.
Human rights are at the core of global migration. In turn, transitional justice is crucial to appreciate the international community’s actions to strengthen human rights. Transitional justice is attributable to countries with a history of human rights violations in their transition to democracy. Measures related with transitional justice include the Nuremberg trials of Nazi war criminals and President Raúl Alfonsín’s policies in 1983 after the end of the military junta in Argentina. Transitional justice fulfilled a vital role in the 1990s transition from communism to democracy in Eastern Europe and from apartheid to multicultural democracy in 1994 in South Africa. It became a crucial element in the framework of the UNHCR, first formulated in 2004 by U.N. Secretary General Kofi Annan, along with its central document, The Rule of Law and Transitional Justice in Conflict and Post‑Conflict Societies, which defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”.
In Sri Lanka, the unsatisfactory progress with respect to transitional justice mechanisms is entrenched in the government’s unwillingness to fully endorse, promote and implement its commitments. Nevertheless, in October 2015, the Maithripala Sirisena government co-sponsored UNHRC resolution 30/1, committing itself to “undertake a comprehensive approach in dealing with the past, while the good governance regime proposed to create four mechanisms for transitional justice: a Commission for Truth, Justice, Reconciliation and Non-Recurrence, an Office of Missing Persons, an Office for Reparations, and a judicial mechanism with a special counsel.” The UNHRC adopted resolutions 34/1 in March 2017 and 40/1 in March 2019 in seeking to give the government more time and resolution 46/1 in March 2021 appealed again to the government in the matter of alleged human rights abuses.
Global migration is one of the defining issues of the 21st century, challenging the fabric of Western societies, remodeling the essence of sovereignty and changing the way we think of borders and boundaries. The 1951 Refugee Convention defined a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. Amnesty International, defines refugee as “a person who has fled their own country because they are at risk of serious human rights violations and persecution there”. As the key difference between refugees and IDPs is that the latter have not crossed an international border, but since many of the IDPs in Sri Lanka do cross the international border by going to India, refugees and IDPs will be used interchangeably in this article.
Transitional justice is built on the pillars of truth, justice, reparations, nonrecurrence and memorialization while its purpose is to provide recognition to victims, encourage civic trust, endorse reconciliation and promote democracy. However, although there is a growing awareness that processes of transitional justice must also consider refugees and IDPs, involving them is more problematic since there have been few attempts to achieve it. While the government has made steps toward transitional justice in general, in terms of refugees and IDPs, there is much more to be done. While since 2009 all administrations have manipulated their international allies to escape realizing transitional justice procedures, none of the transitional justice measures that were proposed by the government encompass tangible reference to refugees and IDPs.
The refugee and IDPs crisis began in July 1983 after the communal riots, which resulted in 3,000 deaths and tens of thousands displaced. An estimated 600,000 to 800,000 Tamils left, roughly a quarter of the total Tamil population, going to Western Europe, India, Australia and North America. Today, Tamil refugees and IDPs include a diaspora of around a million.
The UNHCR maintains that refugees have a prime interest to be engaged in transitional justice procedures that advance the circumstances in their countries of origin. Refugees should be identified as rights-bearing actors capable of influencing the transitional process but the incorporation of them in traditional justice measures is still ad hoc and inadequate. There are several facets concerning refugees and IDPs that are related to any future transitional justice measures: citizenship deprivation in host countries, Tamil diaspora, fear of returning and refugee repatriation.
Refugees, fearing their legal status in host countries, might refrain from taking part in actions that could threaten their status. Often refugees lack essential personal documents so their involvement in transitional justice activities is negatively affected. In India, while more than 300,000 refugees and IDPs Tamils arrived during 1983 to 2010, and only about 100,000 voluntarily repatriated to Sri Lanka, many are still deprived of Indian citizenship, even those born in camps.
Transitional justice procedures aspire to deliver recognition to victims. Numerous Tamil diaspora are in a legal sense victims with rights to truth and reparation. While almost half of the total Sri Lankan Tamil diaspora are in Canada and the UK, no survey has asked refugees or IDPs about their views with respect to transitional justice measures. In this sense, Tamil-Sinhalese relations can be more divided and polarized in London than in Sri Lanka.
Owing to various fears, refugees may be hesitant to take part in either the process of transitional justice or the progress of it. In Western countries, Tamils are petitioning to pressure the government into applying procedures advantageous to the Tamils in Sri Lanka as many of them are reluctant to return due to fears of harassment by the government. Fear of reprisals can thwart movement of refugees and IDPs.
In 2005, U.N. Secretary-General Kofi Annan, stressed that the return of refugees and internally displaced persons was a major part of any post conflict scenario. After a conflict has ended, the majority of the refugees will return to their country of origin. Refugees may use the repatriation procedure as a chance to rediscuss terms of their relationship with their state of origin. As repatriation is commonly understood by international actors as a vital element of peace building, refugees and IDPs should be incorporated into every transitional justice process.
Transitional justice mechanisms address various legal, moral, social and political justice issues. Still, as transitional justice is partial and limited,[1] and as various academics view transitional justice as a compromise among familiar forms of justice,[2]several resolutions and reports have recognized the need for communities trying to settle displacement problems to respond to thejustice concerns of IDPs and refugees. In aiming to encourage refugee and IDPs involvement, the international community ought to perceive them as critical actors and stakeholders in transitional justice processes. Therefore, Sri Lanka has a significant role in seeking to link them with local actors. Since the needs and experiences of refugees and IDPs must be taken into account with regard to their return, their reintegration and the reconstruction of society, any future transitional justice process should not address Tamil diaspora grievances in exchange for hardships among Tamils, Muslims or Sinhalese. Finally, as transitional justice is unique to each context and there is no one size fits all approach, the ultimate challenge is not paying perpetrators what they deserve, rather it is making justice by means of realizing societal transformation.[3] In Sri Lanka whether domestically, internationally, through hybrid courts and criminal trials, it is vital to actively include refugees and IDPs in any effective future transitional justice process.
[1] Teitel, R. G. (2002). Transitional Justice. Oxford University Press.
[2] Murphy, C. (2017). The Conceptual Foundations of Transitional Justice. Cambridge University Press.
[3] Murphy, C. (2017). The Conceptual Foundations of Transitional Justice. Cambridge University Press.
