The Long Struggle for Justice of Tamil Family Members of the Disappeared in Sri Lanka

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A women-led movement continues to demand justice for Tamil victims of enforced disappearance during Sri Lanka’s civil war. Can international law come to their aid?  

 

War is a site where subjects are made and unmade (Thiranagama 2013). This is, of course, a profoundly gendered process, for war makes and unmakes men and women in different ways. In particular, the imperative to break the silence and to bear witness to the violence of war is often overwhelmingly borne by women. It is perhaps no truer than where disappearances have been used as a tactic of war.

In almost every context where forced disappearances have been or are deployed by the state as a tool of repression, terror, or counterinsurgency, women next of kin of the disappeared have organised into powerful movements demanding truth, justice, and reparations.

The Mothers of the Plaza de la Mayo in Argentina is arguably the most well-known and the most iconic of such movements for justice (Bouvard 1994; Taylor 2001). However, scores of women elsewhere have followed in their footsteps, and similar collectives have been formed in many other contexts, including Chile, Guatemala (Schirmer 1989), Kashmir (Zia 2018), Nepal (Marsden 2015) and Peru (Rojaz-Perez 2013).

The Resilience of Women Activists

In almost every case, these struggles are waged over the long durée, straddle multiple regimes, and draw from a broad repertoire of tactics and strategies, including marches, strikes, mass demonstrations, engagements with the law, archival work, artwork, and international advocacy. They are also marked by a number of different phases/stages of struggle, even if these overlap and crisscross each other. Most often, the women who are part of these movements have never been involved in social or political movements but emerge as dissident citizens and active social agents displaying extraordinary courage (Bouvard 1994, Schirmer 1989; Zia 2019).

In doing so, the women offer an ‘ongoing counter-narrative’ to denial and the state’s version of events (Nesiah 2013: 16, 19), shift the ‘social location of the facts of terror’ from private to the public sphere (Rojaz Perez 2013: 158), and reclaim the public sphere, that is all too often hostile to them, with and through their activism. In doing so, they also expose themselves to threats, intimidation, and surveillance; to being labelled as traitors, terrorists, and enemies of the state; and to arrest, detention, and even criminal charges.

Tamil Women’s Search for Justice

In Sri Lanka, where I come from, Tamil women family members of those who were forcibly disappeared during Sri Lanka’s civil war between the state and the Liberation Tigers of Tamil Ealam (LTTE) have been waging such a struggle for truth, justice and reparations since the end of the war in May 2009, first individually and then collectively. As elsewhere, in the immediate aftermath of the war, women family members spent months searching for their loved ones, going from police stations to army camps to hospitals and jails across the country.

They often put their own lives on hold and at risk, even if all they had as a guide in their search was an abundance of hope and determination and flimsy shards of evidence or mere rumour. When these searches yielded no results, they tried to record a police complaint, often with no success, and even if they were successful, no investigation followed. Then family members petitioned whoever else they thought might be able to help — politicians, administrative officials, civil servants, ambassadors, wives of politicians, international NGOs, and UN agencies. When their requests for information and investigation yielded no results, they started protesting and bearing witness to the disappearance of their loved ones.

In the years since the end of the war, they have told and retold their stories countless times in judicial and quasi-judicial forums and in local, national, and international forums (Jegatheeswaran 2021; Cronin-Furman and Krystalli 2021). They have related their stories to journalists, activists, academics, diplomats, politicians, public servants, and UN officials. They have walked miles in the sun and rain, putting their bodies on the line. Yet, successive governments in Sri Lanka have refused to respond to their demand for justice and accountability.

In the years since the end of the war, they have told and retold their stories countless times in judicial and quasi-judicial forums and in local, national, and international forums. They have walked miles in the sun and rain, putting their bodies on the line. Yet, successive governments in Sri Lanka have refused to respond to their demand for justice and accountability.

The Association of Relatives of Enforced Disappearances (ARED)

In 2017, a group of family members of those who disappeared from the eight districts of the north and east came together to form the Association of Relatives of Enforced Disappearances (ARED). One of the first actions launched by ARED was to stage a continuous roadside tent protest in four locations in the north and east of Sri Lanka: Kilinochchi, Marathankerni, Trincomalee and Mullaiitivu (Buthpitiya 2022). The Tent protests, which began in February 2017, were eventually discontinued in August 2018 because of the physical and psychological toll it was taking on the women protesters and the lack of a meaningful response from the Sri Lankan state.

Yet these protests remain a significant landmark in the imagination of ARED and the beginning of what they consider a continuous protest for truth and justice for enforced disappearances in postwar Sri Lanka. As I was writing this, ARED counts more than 2400 days of protest since the beginning of the tent protests. Moreover, it is during these protests that ARED shifted the focus of their struggle for justice from the local to the international and their call for a local truth and justice mechanism with international participation to a purely international mechanism (carvatēca nīti poṟimuṟai). In a letter addressed to Michele Bachelet, the UN High Commissioner for Human Rights in 2022, they explained their decision “to focus (their) struggle towards the international world. . . by stating that “fair justice will not be meted out from (sic) the Sri Lankan government.”[1]

Most recently, they reiterated their demand for an international truth and justice mechanism to address forced disappearances on 30th August 2023, The International Day of the Victims of Enforced Disappearances. ARED marched from Kallady Bridge to Gandhi Park in Batticaloa to mark this day. As they marched with their allies, they chanted: “Want, want, justice want! (Vēṇṭum, vēṇṭum, nīti vēṇṭum). Where, where relatives where! (Eṅkē, eṅkē uṟavuhal eṅkē).

International Law: Site of Resistance or False Hope

Following scholars such as Seyla Benhabib (2009), Toby Kelly (2018), and Kathryn McNeilly (2017), I contend that international law and norms have opened up a space of resistance for Tamil women next of kin of the disappeared in Sri Lanka. In postwar Sri Lanka, international law and norms have facilitated new subjectivities and new vocabularies of claims-making, helped form new alliances to engage with and address the asymmetries of power at the national level, and remade the meaning, content, and remit of universal human rights at the local level. Yet beyond the subjective empowerment of victim-survivors, can international law deliver on its promise of justice yet to come remains to be seen. Or is it simply a site of “false hope” (Allen 2020)? In the case of Sri Lanka, it is perhaps too early to tell.

Sri Lanka has been on the agenda of the UN Human Rights Council in Geneva, the main UN body responsible for monitoring and protecting Human Rights across the world, since 2011. Between 2011 and 2023, the council passed several country-specific resolutions against Sri Lanka, the most significant of which is Res. 46/1 of 2021.[2] In substance, it empowers the Office of the High Commissioner for Human Rights (OHCHR) to collect, consolidate, analyse and preserve information and evidence relating to gross violations of human rights or serious violations of international humanitarian law committed during the war by the Sri Lankan state to develop possible strategies for future accountability processes for such atrocities; and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction. (Op Para 6). Known in UN parlance as the OHCHR Sri Lanka Accountability Project, it is an unprecedented yet untested initiative.

In the most recent report submitted by the UN High Commissioner for Human Rights to the UNHRC (A_HRC_54_20, September 2023[3]), the High Commissioner reports that the repository is prioritising four thematic areas: i) unlawful killings; ii) sexual and gender-based violence and torture in detention settings; iii) enforced disappearances; and iv) violations against and affecting children. The report further states that the repository has been populated with data from i) earlier OHCHR investigations into Sri Lanka, ii) other material collected by OHCHR over the years, iii) material from the archives of nine non-governmental organisations, and iv) academic sources.

The expectation is that the evidence collected can be used in prosecutions under the principle of universal jurisdiction, which provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity. There is, however, no clarity about how and when these prosecutions will unfold.

ARED continues to protest and continues to mark the days of their protest, waiting for justice yet to come.

 

[1] twitter.com/PEARL_Action/status/1559114510111326209

[2] Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, Report of the Office of the High Commissioner for Human Rights, A/HRC/ 46/20, 27 January 2021.

[3] Situation of human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights:,, A/HRC/ 54/20, 6 September 2023. reliefweb.int/report/sri-lanka/situation-human-rights-sri-lanka-report-united-nations-high-commissioner-human-rights-ahrc5420-advance-unedited-version

 

References

Allen, Lori (2020). A History of False Hope: Investigative Commissions in Palestine, Stanford, CA: Stanford University Press.

Bouvard, Marguerite Guzman. (1994). Revolutionizing Motherhood: The Mothers of the Plaza de Mayo. Lanham, Boulder, New York, Toronto, Oxford: SR Books.

Cronin-Furman, Kate, and Roxani Krystalli. (2021). “The things they carry: Victims’ documentation of forced disappearance in Colombia and Sri Lanka.” European Journal of International Relations 27(1):  79-101.

Jegatheeswaran, Dharsha. (2021). Heeding Victim’s Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka, Justsecurity.Org, 30 March 2021, www.justsecurity.org/75095/heeding-victims-voices-the-struggle-of-tamil-families-of-the-disappeared-in-sri-lanka/. )

Kelly, Tobias. (2018). ‘Two Cheers for Ritual: The UN Committee Against Torture.’ Humanity: An International Journal of Human Rights, Humanitarianism, and Development 9(1): 93-105.

Marsden, Ruth. (2015). Not yet at peace: Disappearances and the politics of loss in Nepal. PhD Diss,. The University of Edinburgh.

McNeilly, Kathryn (2017). Human Rights and Radical Social Transformation: Futurity, Alterity, Power, Glasshouse Books.

Nesiah, Vasuki (20130. The law, this violent thing: Dissident memory and democratic futures, 14th Neelan Thiruchelvam Memorial Lecture, Colombo, 28 July 2013.

Rojas-Perez, Isaias. (2013). ‘Inhabiting Unfinished Pasts: Law, transitional justice, and mourning in post-war Peru.’ In Humanity: An International Journal of Human Rights, Humanitarianism, and Development 4(1): 149-70.

Schirmer, Jennifer G. (1989). ‘“Those Who Die for Life Cannot be Called Dead”: Women and Human Rights Protest in Latin America.’ Feminist Review 32: 3-29.

Taylor, Diana. (2001). ‘Making a Spectacle: The Mothers of the Plaza de Mayo.’ Journal of the Motherhood Initiative for Research and Community Involvement 3(2): 97-109.

Thiranagama, Sharika. (2013). ‘Claiming the State: Postwar Reconciliation in Sri Lanka’. Humanity: An International Journal of Human Rights, Humanitarianism, and Development 4(1): 93-116.

Zia, Ather. (2018). Resisting Disappearance: Military occupation and women’s activism in Kashmir. Washington: University of Washington Press.

 

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