Taking a bird’s-eye view, the perspectives and practices of transitional justice can be articulated as: reconciliation, truth-telling, accountability, reparations, and reform (including institutional commitments for non-recurrence). [1] There are several national and international truth commissions that have sought to determine the truth about human rights violations and mass violence in specific instances. With this framing of the field, it is important to reflect on whether transitional justice can untangle and address the root causes of Sri Lanka’s culture of violence and impunity. Even after some contextualization, my response as a survivor of war, a former practitioner of transitional justice, and, now, an academic studying this field remains a steadfast no.
By focusing on truth-telling within transitional justice theory and practice, I hope to open up several new windows into our understanding of how this field reifies existing inequities within the global legal and political order.
1. Determining Truth: International and National Experiences
Truth is determined by asking, “who did what to whom”. By framing it this way, one can view the importance of truth to move forward. There are over ninety international truth commissions that were created using several approaches. Within national jurisdictions, some states have specific public law statutes that allow for public inquiries to determine what happened. National and international truth-seeking projects have their respective opportunities and challenges. Archbishop Desmond Tutu’s reflections from the final report of South Africa’s Truth and Reconciliation Commission (1998) captured some of the opportunities when he noted: “[…] the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured […] [to] heal. It is to take care that the past is properly dealt with for the sake of the future”. [2]
While these expectations may drive the search for truth, established national and international mechanisms have struggled to bring about the healing and reconciliation associated with truth commissions.
1.1 International Truth-Seeking Mechanisms in the Context of Sri Lanka
There are historic and more recent examples where the UN deployed international commissions of inquiries to make determinations about the scope and severity of violence, for example, in the former Yugoslavia and Rwanda. Their findings were then relied on to create the two ad hoc international criminal tribunals. These tribunals have successfully prosecuted those that bear the gravest responsibility for the genocide in Rwanda and the former Yugoslavia.
With the end of the civil war between the Tamil Tigers and the Sinhala Buddhist state, there was an urgent need to determine whether the parties to the civil war engaged in international criminal conduct. The UN Secretary General Ban Ki-moon was able to convince the then Sri Lankan President, Mahinda Rajapaka, of the importance of accountability—if only for a brief moment during his visit to the island at the end of the war. As part of this commitment, Ban Ki-moon set up the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka [3] (henceforward “the Panel”). The Panel was tasked with advising the UN Secretary-General on whether Sri Lanka had taken, and should take, measures with regard to “accountability, in light of the actual nature and scope of all allegations”.[4]
Given the Panel’s mandate to focus on events taking place between September 2008 and May 2009, the commissioners received information (both public and confidential) from human rights organizations collecting victim testimonies. The repeated efforts to engage with the government of Sri Lanka during the first phase of their mandate were not successful. Then the Panel drafted the almost 200-page report, with significant recommendations that would help Sri Lanka move forward.
The report and the search for accountability, framed by the Panel as “the achievement of truth, justice, and reparations” in the hopes of ushering in “sustainable peace in a State after conflict” remains a lofty goal.
1.2 Domestic Measures to Determine Truth
Given international pressure—however fleeting it may have been—President Rajapaksa, acting under the auspices of The Presidential Inquiry Act 1947, created the local Commission of Inquiry on Lessons Learnt and Reconciliation (“LLRC”) on May 15, 2010. The Commission was tasked with looking back at the conflict and “ahead for an era of healing and peace building in the country”.[5]
The LLRC avoided some of the central thorny issues. Once it had heard from the witnesses, it problematically determined that the Sri Lankan military acted in a manner “consistent with the position that protection of civilian life was a key factor in the formulation of a policy for carrying out military operations”. [6]
In the wake of these suspect findings, the United Nations investigations discussed earlier alongside another national commission called for the creation of transitional justice mechanisms in Sri Lanka. A United Nations Human Rights Council resolution also urgently requested Sri Lanka to create transitional justice mechanisms to deal with the war time atrocities. Recently, a commission [7] focusing on truth, unity and reconciliation was proposed by the former Sri Lankan government. We will have to wait to determine whether it can overcome the challenges chronicled in the earlier discussion.
The search for truth in Sri Lanka has either failed or stalled. While a nuanced analysis that examines the anatomy of these truth commissions from a Third World perspective may yield important insights about procedure and process, what remains clear is the arc of global North-global South dynamics in the discovery of the truth. It is with this in mind that I turn to in the next section. Importantly, the premise that the determination of truth will yield some form of accountability and/or justice and will foster reconciliation needs to be further problematized, as there is a potential for revictimizing the victims. On the one hand, once the victims provide their respective evidence and have been re-traumatized, they are left with nothing else. They are expected to carry on. On the other hand, once these commissions deliver their findings, international and domestic politics of the day dictate the possibility of what may happen next.
2. Historical Truth as Root Causes
The Sri Lankan example illustrates the challenges faced by national and international truth commissions. The traditional transitional justice literature presents commissions of inquiry/truth commissions as offering a space for truth, where victims are centered. [8] Notwithstanding these promises, the victims’ testimonies are deployed to achieve the goal of potentially determining truth, as seen in the example of the UN Panel of Experts Report. [9]
At the global register, a UN Security Council referral to the ICC was not possible for Sri Lanka, given the prominent role of Sri Lankan allies such as China, the United States, and the UK. Similarly, the use of Chapter VII of the United Nations Charter, which gives the UN Security Council the power to take ad hoc enforcement action in response to threats to peace, breaches of peace, or acts of aggression, as in the cases of Rwanda and the former Yugoslavia, was not possible given the veto of the permanent members of the UN Security Council. Even with a hybrid mechanism, the UN Secretary General would need the consent of the state in question, similar to how the hybrid tribunals of Sierra Leone and Cambodia were set up. Accountability for war crimes was impossible domestically. The majority of Sinhala people would not accept the prosecution of their war heroes. Additionally, there is a long history of impunity that is deeply entrenched within the Sri Lankan legal system.
In this context, the interventions by Third World Approaches to International Law (TWAIL) [10] scholars become salient. TWAIL scholar, Obiora Okafor, powerfully suggests that fact-finding processes are problematic for several reasons. Okafor poignantly argues that the Third World is conceptualized by truth-seeking inquiries as horrific places, akin to hell. This type of perspective poses challenges for how victims and the violence are viewed and described. Okafor moreover identifies the “one way traffic paradigm” of the fact-finding inquiries, which follows from this binary logic of heaven and hell:
In this paradigm, human rights knowledge, scrutiny, and supervision tend to flow from those parts of the world that supposedly invented human rights (i.e., the West) and that observe it almost perfectly, to those regions of the world that tend to know very little—if anything—about it (i.e., the Third World), and that hardly ever observe it. [11]
This argument is astutely reflective of how the UN Panel of Experts was set up for Sri Lanka. Several months before the Panel took on its task, a secretariat was created to facilitate the work of the Commissioners and to organize the data gathering. The secretariat was made up of transitional justice experts who facilitated the flow of the evidence. In this well-worn framework, human rights knowledge flows to Sri Lanka via the Panel that brings the tools of the saviour to the savage victims. Yet, what is missing from Okafor’s framework is the inclusion of the raw data that must be extracted from the local space so that the law (through transitional justice) can be applied to the facts by the experts. The application of the law to the facts then forms the basis of the report. The victims come forward in search of Western forms of justice and provide testimony in the hope that they may receive some type of reparations. Yet, once their stories are extracted, the potential reparations or justice are never forthcoming. Rather, the victims and their families are left with a form of re-traumatization that they must now contend with as they try to rebuild their lives.
The flow of human rights knowledge to Sri Lanka and the extraction of testimonies is part of the market-friendly “conveyor belt” that Ambalavaner Sivanandan theorized in his highly influential essay focusing on the “New Circuits of Imperialism” [12], first published in 1989. He suggests that the ability of underdeveloped countries to shift their status to industrialized nation-states continues to be highly difficult. Sivanandan thus notes: “If there is movement, it is no more than the movement of a conveyor belt that runs on fixed stations. It is the belt that moves, not the stations; if they did, the whole system would collapse”. [13] Transitional justice and truth commissions cannot be severed from these processes of capital accumulation of which the determination of truth is part.
Sri Lanka has a particular position on the conveyor belt because of the world-making that the British Empire embarked on when they took over the Island. With the fall of the Dutch empire and Napoleon’s takeover of the Netherlands in 1796, the British empire marched into Dutch territories of Ceylon, now known as Sri Lanka. What they found were fragmented “social formations”, without a clear and unified form of contemporary sovereignty. This is the starting point from which the Island was remade to facilitate colonial governance from the centre (Colombo/London). This re-making begins with the ousting of the Nayakkar King of Kandy, who had ruled for over 100 years [14] and the ceding of sovereignty by the Kandyan Buddhist aristocrats. They relinquished their sovereignty in exchange for the constitutional protection of Buddhism throughout the entire Island, even though other “social formations” had practiced different faiths for centuries. The adoption of the Kandyan Convention in 1815 then set in motion the modernization of Ceylon, culminating in the reforms precipitated by the Colebrooke Cameron Commission in March 1832.
The commission’s reforms ushered in the creation of ethno-racial categories that previously existed as “social formations”, and these categories would then solidify and be continually reinforced by a perverse form of ethno-nationalist Buddhism. With the legal decolonization of Sri Lanka in 1948, these solid ethno-racial categories would further separate social formations into communities with majoritarian political will based on population size and the remaining ethnic and religious “minority” communities. The ensuing struggle for dominance would eventually trigger the civil war, starting with the Black July massacres in 1983.
Of course, global and domestic financial systems were deeply implicated in funding the civil war. By 2008, Sri Lanka was borrowing close to 2 billion USD to fund the war and maintain its expenses. Once the war was over, Sri Lanka continued to borrow, thus bringing it to the brink of bankruptcy, necessitating further debt. [15] This larger context is not part of the search for truth, as encapsulated within the transitional justice discourse on Sri Lanka. In fact, transitional justice tends to ignore, and at times obscure, the root causes of the past violence.
Conclusion
In the making of the Sri Lankan civil war, there is a broader narrative that is often ignored. The missing elements are the colonial and imperial history of the Island. This history illuminates how Sri Lanka ended up in its current “fragile” state, in need of both finances (through debt) and justice. In both international and national truth-seeking processes, the historical realities of how the Island ended up in its current situation are nowhere to be found. Rather, transitional justice experts focus on the elements of international and domestic crimes, without a single thought to what Kamari Clarke has suggested as the “root economic causes” [16] of a conflict.
Returning to my purpose of opening critical discussions within transitional justice then requires a socio-political, economic, and historical account of a conflict. As Sivanandan suggests, a materialist account is needed. This type of approach sadly is not possible within the liberal framework that transitional justice adopts as means to achieve justice for past violence.
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This shortened and edited article is a republication of Sujith Xavier, “Harvesting Truth: Transitional Justice in Post War Sri Lanka” from Navigating the Complex Terrain of Accountability in Sri Lanka" a special issue of the PKI Global Justice Journal (2025) PKI Global Justice Journal 2.
In his article “Truth Eaters,” the author explores how a community-oriented examination of the complex origins of injustice in Sri Lanka can pave the way for anti-colonial justice.
- Footnotes
1. United Nations Secretary-General, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice (New York: United Nations, March 2010), accessed via United Nations Digital Library, https://digitallibrary.un.org/record/682111. This is an official internal UN policy guidance note outlining the United Nations’ framework and principles for supporting transitional justice processes, including truth-seeking, accountability, reparations, and institutional reform in post-conflict and transitional settings.
2. Archbishop Desmond Tutu, Truth and Reconciliation Commission of South Africa Report, Truth Reconciliation Commission, 1998
3. The results of the Panel can be found in the Report of the Panel on Critical Energy Transition Minerals (United Nations Digital Library), https://digitallibrary.un.org/record/3961113.
4. Ban, Ki-moon, Secretary-General, releases expert panel's report on accountability with respect to final stages of Sri Lanka conflict, UN Press Release. Secretary-General. Statement, 2011
5. Sri Lanka, Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (Colombo: Commission of Inquiry on Lessons Learnt and Reconciliation, 2011)
6. Ibid.
7. The Independent Commission for Truth, Unity and Reconciliation is a proposed Sri Lankan government–established transitional justice body, announced in 2023.
8. Jeff Corntassel and Cindy Holder, "Who’s Sorry Now? Government Apologies, Truth Commissions, and Indigenous Self-Determination in Australia, Canada, Guatemala, and Peru," (2008) 9:4 Human Rights Review 465.
9. The Secretary-General’s Panel of Experts on Accountability in Sri Lanka (2011), appointed by the United Nations Secretary-General, is a UN investigative report.
10. TWAIL is a tradition that is critical of the field of transitional justice (TJ) as an alternative to international criminal law (ICL). At its core, TWAIL reveals the embedded racial hierarchy within international law and exposes practices of domination, while also calling for the construction of new and alternative legal edifices. Since its inception in the mid-1990s, TWAIL has offered broad and overarching insights into the “politics of resources, the politics of knowledge, and the politics of the professional and practice dimensions of international law and policy.”
11. Obiora C. Okafor, “International Human Rights Fact-finding Praxis in its Living Forms: A TWAIL Perspective,” Transnational Human Rights Review 1 (2014): 59–105, https://doi.org/10.60082/2563-4631.1001, https://digitalcommons.osgoode.yorku.ca/thr/vol1/iss1/2
12. A. Sivanandan, “New Circuits of Imperialism,” Race & Class 30, no. 4 (1989): 1–18.
13. Ibid
14. Sujit Sivasundaram, Islanded: Britain, Sri Lanka & the Bounds of an Indian Ocean Colony (University of Chicago Press, 2013).
15. Xavier, et al., “Indebted Impunity and Violence in a Lesser State: Ethno-Racial Capitalism in Sri Lanka,” (2022) 25:2 Journal of International Economics L 277; see also Nimanthi Perera-Rajasingham, Assembling Ethnicities in Neoliberal Times: Ethnographic Fictions and Sri Lanka’s War (Northwestern University Press, 2019) pp. 1-23.
16. Kamari Maxine Clarke, “The Rule of Law Through Its Economies of Appearances: The Making of the African Warlord.” Indiana Journal of Global Legal Studies 18, no. 1 (2011): 7–40. https://doi.org/10.2979/indjglolegstu.18.1.7.
Cover Image:
TAWNA Collective, Llaki (video still), 2025. ©️and courtesy of the artists
