Challenging Practices of Victim-Centeredness in Consultations on Transitional Justice: Creating Space for the Voices of the Disappeared in Sri Lanka

Abstract

This article explores what it means to be victim-centered in a transitional justice (TJ) consultation process through the case study of the state-commissioned process in Sri Lanka in 2016. The author who was a member of the Consultation Task Force on Reconciliation Mechanisms (CTF) uses an insider perspective and the CTF reports to examine victim-centeredness. While noting the limited available literature on the specific issue of consultations in TJ processes, the article draws on work focused on victim participation in TJ and, more broadly, public participation in governance and development. This article attempts to unpick the concept of victim-centeredness through focusing on three key aspects, namely: representation, the listening to and integration of victims’ voices, and the role of experts. It highlights the need to examine the internal operations of TJ structures so as to better understand the factors that contribute to creating spaces for meaningful victim participation.

1. Introduction

In January 2024 the Sri Lankan Government gazetted a Bill to establish a Commission for Truth, Unity and Reconciliation (CTUR). One of the many criticisms of the Bill was its failure to reflect many of the suggestions made by members of the public to the Consultation Task Force on Reconciliation Mechanisms (CTF), which had undertaken the ‘mammoth and painstaking task’ (Ibrahim 2024: 207) of country-wide consultations in 2016 in order to ascertain the general public’s views on transitional justice (TJ) mechanisms. Consultation processes are ultimately judged by how they impact legal, policy and institutional reforms. In this sense the CTF has a poor track record; even when operational, its findings were disregarded by the State. As such, the CTF could be dismissed as an exercise intended by the Government to ‘superficially tick a check list rather than address structural and other grave issues impending reforms’ (Fonseka and Naples-Mitchel 2017: 19). The manner in which the CTF reports were treated by the State and policymakers, decisively impacted how the CTF process is perceived. To date, civil society and academia largely continue to disregard the CTF process and its findings, as opposed to assessing the process to identify its strengths and failings, and attempting to challenge and build on its findings.

Yet, there are multiple reasons to re-visit this initiative, especially for those interested in understanding how consultations both function within TJ processes and their wider impact on society. The CTF process with all its faults has positive coverage, even in the literature that is overwhelmingly critical of the TJ process in Sri Lanka. The UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff commented that:

Up to this point, this is the most comprehensive effort to capture the views of victims and others on transitional justice questions… the CTF’s report should have been better received and its conclusions and recommendations should certainly be a part of all conversations regarding the design of those measures. The report reflects the most thorough representation up to now of the voices of those affected. (UN HRC 23 October 2017)

It is this engagement with victims that this essay attempts to re-visit.

In the guidelines and literature on TJ processes, most notably in UN reports, there are repeated references to the critical importance of victim involvement, as opposed to the general public and marginalized groups who are the main focus of other public consultation processes. While highlighting the emerging norm of victim-centeredness at a global level, this article draws attention to the lack of clarity within this same literature on how this should be operationalized. Given the volume of TJ processes across the globe and the consultation processes that have unfolded in their wake, the limited writing on TJ consultations is striking,¹ in particular the lack of comparative analysis (UN HRC 2016b: 4). The TJ process in Sri Lanka is itself an under-researched area, which Kiran Kaur Grewal attributes to its relatively recent history in the country (Grewal 2023: 322). The global scarcity on comparative work on consultations has had a knock-on effect on the available literature of how victim-centeredness has been approached in such processes. While some significant contributions have been made on participatory approaches in TJ processes, ‘evidence-based research on how to understand, organize and evaluate victim participation has lagged behind’ (Evrard et al. 2021: 1). Given this limitation, this article draws from the literature on consultations for individual mechanisms and more generally on participation.

This article seeks to examine some of the empirical challenges and dilemmas in consultation processes, which have become the canonical way to instantiate participation around state-led TJ mechanisms. Overall, the CTF provides a useful example of what victim participation could look like, while demonstrating its shortfalls and practical limitations. While this article seeks to understand how ‘transitional justice can lead to more meaningful outcomes’ (Firchow and Selim 2022: 2) through participation, it seeks to grapple with process dynamics and short-term impacts, as opposed to focusing on outcomes alone. To assess victim participation this article looks at three elements of the CTF process: representation, the integration and attention paid to victims’ voices, and the role of expertise.

The primary focus of this article will be on the submissions made by families of the disappeared. The consultation process saw victims of a diverse range of human rights violations, including extra-judicial killings, mass displacement, ethno-religious discrimination and structural violence, but a significant proportion of those who made submissions to the CTF, and an ‘overwhelming majority’ of those from the North and East, were from families of the disappeared (CTF 2016b: 4). It will rely largely on the publicly available material contained in two of the main reports of the CTF for the submissions: the Interim Report, the Office on Missing Persons and Issues Concerning the Missing, the Disappeared and the Surrendered (Interim Report), which came out in August 2016 in response to the Government presenting a bill on the Office on Missing Persons (OMP) and the Final Report of the Consultation Task Force on Reconciliation Mechanisms (Final Report), completed in November 2016 and made public in January 2017.

This article is written from an insider perspective: I was one of the members of the CTF apex committee appointed by the Government to implement the consultation process. I was directly involved in conceptualizing and implementing different aspects of the process from the interpretation of the mandate and trainings to developing the Final Report. This ‘insider-partial’ perspective (Wehr and Lederach 1991) colors my analysis, but the opportunity of sitting across from victims, activists, and others making submissions, and being involved in implementing the consultations, provides a unique and intimate vantage point to grapple with the complexities and dilemmas of the consultations; hence, I will refer to my recollections of the process. There is only one other substantive insider account of the CTF process but it examines the submissions made on psychosocial issues as presented in the Final Report (Samarasinghe and Salih 2017: 497–517). Through focusing on the contrasting viewpoints of those operating the consultation machinery and those coming before it, this article provides a distinct contribution to the literature, and attempts, in the words of Christoph Sperfeldt, to ‘overcome the continuing divide between scholars and practitioners’ (Sperfledt 2022: xi).

2. Contours of a consultation process

The CTF was part of an optimistic moment in Sri Lanka as the State signaled an attempt to grapple with the 30-year civil war, fought between a majoritarian, Sinhala-dominated State and Tamil militant groups, in particular the Liberation Tigers of Tamil Eelam, which came to a bloody end in May 2009. Successive governments both during and after the war failed to address questions of accountability and truth for the over 100,000 persons killed or disappeared. Besides the war, there were other conflicts demanding redress, including the underlying ethno-political conflict that pre-dated it. Sri Lanka has faced two armed insurrections by the Janatha Vimukthi Peramuna, a Sinhalese Marxist group, on the basis of socio-economic grievances, which had resulted in over 40,000 deaths and disappearances. Minority communities like the Muslims and Malaiyaga Tamils have their own grievances and faced anti-minority discrimination and violence all of which contributed to a complex context.

In January 2015, the Yahapalanaya (‘Good Governance’) administration came to power on a pro-reform and anti-corruption platform. In October 2015, the Government co-sponsored UN Human Rights Council Resolution (UNHRC) 30/1 to ‘promote reconciliation, accountability and human rights in Sri Lanka’, and made a number of commitments to implement a series of measures, including to set up four mechanisms (CTF 2016b: 7).² The Government also pledged to establish ‘broad national consultations with the inclusion of victims and civil society’ (UN HRC 2015: para. 3). This marked a significant shift from the previous Government’s policies, which undermined democracy and intensified ethnic polarization (ICG 2017: 1). Embodying a spirit of participation, the Government moved swiftly conducting ‘consultations-about-consultations’ to develop the framework for consultations in late 2015. On 9 February 2016, the Government established the CTF, an apex committee of 11 persons.

Even as the CTF reinterpreted its mandate and designed its own methodology, it adopted the structures proposed in the Government’s terms of reference. The CTF was mandated with designing and implementing the TJ consultation process. It appointed two advisory committees: the Panel of Experts and the Panel of Representatives.³ The primary method for gathering public views was through public meetings and focus group discussions carried out by 15 Zonal Task Forces (ZTFs), each in a different region of the country. In addition, the apex committee conducted sectoral consultations with key national-level actors (such as the military and police) and elicited submissions via email and the post. At its conclusion in November 2016, the CTF had conducted 72 public meetings, 116 FGDs, 9 sectoral sessions and received a total of 7,306 submissions (CTF 2016b: 22–5). Informed by the experiences of previous commissions whose reports were hidden by the state, the CTF insisted on publicly sharing its Interim Report and a three-volume Final Report.

The overall TJ process had to operate in an extremely polarized context. K. Guruparan caricatures the Sri Lankan polity into three broad groups: liberal sections of the Sinhala polity supportive of the rule of law and democratic reform; a majority within the Tamil community standing for a pluri-national country; and a majority of Sinhala Buddhists resisting any transition. His conclusion that a singular TJ discourse is impossible (Guruparan 2017: 148) raises questions of whether a consensus framework is possible. Besides the political opposition, representing Sinhala majoritarian positions, who opposed the resolution, within the Government too there was a clear discomfort with the commitments made in Geneva (Tamil Guardian 2016, 2015). Even within civil society underlying tensions surfaced along a significant cleavage between those in the South largely supporting the process, while some groups in the North and East made clear their disappointment that the resolution fell far short of their demands for international justice, and expressed their deep distrust of the State, pointing to continuing incidents of harassment (Ilankai Tamil Sangam 2015). This had a knock-on effect on the CTF process: even as some welcomed the opportunity to participate in the consultations, others expressed their apprehensions about what the process would yield but nonetheless they engaged (CTF 2016b: 2).

In no uncertain terms, participants stated that they were fed up of going before commissions of inquiry and investigation without any tangible results. Yet, at the end same they expressed and not always explicitly, the hopeful expectation that this time around things would be different. Some made the point that this would be the last time they recounted their suffering and grievances to a commission-like body. (CTF 2016b: 2)

A key contextual factor this and other submissions highlighted was the succession of ad hoc bodies appointed by the State over time, which has created an exhaustion and frustration among affected communities looking for truth and justice (Raheem 2022).

As to why the CTF failed to receive state endorsement has many reasons. The refusal of the President and Prime Minister to accept the Final Report was symptomatic of their efforts to distance themselves from the larger TJ process (ICG 2017: 17). Issues of adequate resources for and lack of government messaging on TJ public awareness spoke for the lack of political will. It could be argued that the CTF process itself, with its extensive structure, proved unwieldy, especially given available political windows (Anketell 2016). While the government expected a 3-month process, the CTF took 11. However, even after the CTF report was submitted during its tenure the Government did not present bills for other TJ mechanisms, indicating not just political exigencies but also priorities.

The fate of the Public Representation Committee (PRC) tasked with consulting the public on constitutional reforms, faced a similar fate as the CTF and is illustrative of the wider challenge to consultative governance and reform. Although the PRC presented its report to the Prime Minister in May 2016, the drafting process had already commenced with Parliament taking on the role of the Constitutional Assembly in March. A series of committees consisting of political representatives and constitutional experts (including academics and members of civil society) were responsible for the drafts, largely disregarding the PRC. Mirroring this, the CTF found itself, mid-consultations having to submit an Interim Report in response to the proposed OMP legislation. However, as the CTF grimly noted ‘none of the amendments to the Bill adopted in the Act were reflective of recommendations from public consultations’ (CTF 2016b: 178); not even the demand to add ‘disappearances’ in the title of the office. The lack of consideration by both drafters and legislators resulted in the UN High Commissioner for Human Rights cautioning them to not to ‘pre-empt the results of the consultation process and render it less meaningful’ (UN HRC 2017: 7). The manner in which the CTF process is judged for its lack of impact is somewhat misplaced as this should also incorporate a critique of the State. Besides the lack of political, there is a need to widen analysis to assess law-making processes.

Given this context and all the challenges that it faced, the CTF symbolized a rare and significant coming together of civil society, in the widest sense of the term, represented by over 267 individuals who worked in different capacities from across the country. It may have even provided an opportunity for acknowledgement as the CTF was viewed as an extension of the state by different sets of participants. As noted in the CTF Final Report, ‘on occasion [it] served as de facto truth hearing, including on issues of alleged war crimes’ (CTF 2016b: 7). Besides providing suggestions for specific measures and features for mechanisms, the CTF process offered an opportunity for creating public ownership and legitimacy for the overall TJ process, as well as informing the impending process with a detailed perspective on victims’ and communities’ needs.

However, the TJ process faltered along with the broader reform agenda of the Yahapalanaya Government. The OMP was established more than one and a half years after the law was passed and the Office of Reparations was appointed more than a year later. A new government headed by war-hero president Gotabeya Rajapaksa withdrew its support for the TJ process in 2020, leaving a legacy of mechanisms that have proved unable to meet the expectations of victims, revealing the state’s disinterest to ending impunity, and to addressing truth and justice. Meanwhile, families of the disappeared find little reason to being thankful to the OMP, which was created to protect their rights and trace the whereabouts of their loved ones. As families continue their protests demanding truth and justice they face harassment and intimidation (Amnesty International 2022: 9–12).

Despite the election of a new president, Anura Kumara Dissanayake in October 2024, following the economic crisis of 2022, the popular uprising demanding ‘system change’, the forced resignation of the President Rajapaksa, the appointment of Ranil Wickremasinghe, the State continued to reject the Sri Lanka Accountability Project appointed by UN OHCHR in June 2021. Looking at the presidential election manifestoes of the three main candidates, it appears there is a consensus among the Sinhala-dominated national parties for a ‘domestic’ solution consisting of a truth-seeking commission. There is a risk of replicating a critical fault in the CTUR Bill—the failure to grapple with Sri Lanka’s past: both the histories of violence and their impact, and the (failed) efforts by the state to address it, largely through temporary commissions to inquire into issues of human rights and TJ.

It is this legacy of numerous state commissions, with their largely unimplemented recommendations highlighted by numerous commentators (Pinto-Jayawardena 2010; Fonseka and Perera 2024: 5; Cronin-Furman 2019: 121–63; Mihlar 2024: 119–24) that any Government needs to reckon with when designing a Truth and Reconciliation Commission (TRC). Pinto-Jayawardena argues that they have become part of the ‘impunity apparatus’ (Pinto-Jayawardena 2010: xvi). As such there is a real danger of a TRC adding yet another layer to these structures of impunity. The CTF report has been effectively relegated to the growing pile of ignored and discarded reports, and deepened the distrust of the state (Raheem 2023).

3. Fuzzy norms

Even as TJ has gained increasing acceptance as a governance tool at a global level, consultations have emerged as a norm within it (UN 2016b: 5–6). Besides different mechanisms for addressing the four pillars of TJ: truth, justice, reparations and non-recurrence, consultations have become the fifth element of the essential tool kit (UN Secretary General 2023: 13). According to the former Special Rapporteur dealing with TJ issues, Pablo de Greiff, consultations are necessary for two reasons epistemic and legitimacy (UN HRC 2016b: 4–5). In relation to the first, consultations can increase the effectiveness of TJ proposals through addressing the needs of victims, their experiences, and incorporating their demands (UN 2009: 6). Secondly, consultations offer a means for the state to reclaim legitimacy and for victims claim back public space (UN 2016: 19). However, as the CTF process demonstrates there is a third. Consultations can serve not just as a precursor to a TJ process but as a vital starting point for acknowledging grievances and present a model for the future through exemplifying participation and accommodation. The ability to speak freely and be heard, and the sense of acknowledgment that a consultation process can deliver from the state and society can have a far-reaching impact in how citizens will engage in the future.

Although public consultations aim to connect with a diverse set of stakeholders, those related to TJ focus on victims. ‘Ensure[ing] the centrality of victims in the design and implementation of transitional justice processes and mechanisms’ is a guiding principle of TJ (UN 2010: 6). The normative value of ensuring the input and participation of victims has found expression in international law (UN 2009: 4–5). For victims there are a range of ‘presumed benefits’, including acknowledgment, healing, and the space to influence redress measures (Sprenkels 2017: 14). Even authors critical of the treatment of victims in TJ processes highlight how victims use such processes to empower and educate themselves (Grewal 2023: 334), which in turn draws attention to TJ beyond official mechanisms and processes, or what Andrieu and others refer to as the ‘larger ecosystem’ (Andrieu et al. 2015: 5).

Nonetheless, there are risks, or as Sprenkels describes ‘anticipated harms’, for both victims and institutions/processes (such as the exclusion of different sets of victims and the psychosocial and social impact of truth-telling) that need to be noted and addressed (Sprenkels 2017: 17–21). One of the most common critiques of consultations is the instrumentalization of victims, where the entire process can be treated as a tick-box exercise, or as characterized by Björkdahl and Selimovic, an ‘add-victims-and-stir’ approach (Björkdahl and Selimovic 2015: 311–25). There is also the risk of assuming victim influence is wholly positive, when some of their demands may be inimical to human rights standards.

Jones and others argue that there has been a ‘discursive turn’ to victim-centeredness in TJ with increased calls for participation and consultation of those most affected (Jones et al. 2023: 235). The most recent UN Transitional Justice Guidance Note envisages victims playing an ‘essential role in the design and implementation of measures. By having victims initiate, drive and participate in the process’ (UN Secretary General 2023: 8). As the Special Rapporteur himself warns that state goals of TJ such as ‘the recognition to victims, fostering trust and strengthening the democratic rule of law’ cannot ‘happen on the backs of victims’ without their meaningful participation (UN HRC 2012: 17).

Even as victim-centeredness has become a mantra of TJ (UN HRC 2016b: 20), and is used as a ‘measuring stick’ to judge the effectiveness and success of TJ programs (UN OHCHR 2009: 4), in operational terms it remains fuzzy. Mahdev Mohan offers a succinct summary of the lack of clarity in the literature on victims’ rights (Mohan 2009: 749):

Victims’ rights discourse is unhelpful in this regard as it is dominated by appeals to participation (Edwards 2004: 967, 973). As one commentator puts it, ‘the idea of … participation is a little like eating spinach: no one is against it in principle because it is good for you’ (Arnstein 1971: 176, 177). Given this tautology, there is a danger that by using the term ‘participation’, and in vaunting its appeal, we fail to capture its real significance (Edwards 2004: 972).

Some of the key principles used in TJ such as inclusivity, participation and victim-centeredness are used to define each other leaving little room for clinical distinctions or definition in operational terms.

This article will not (re)define any of these terms but will break down the idea of victim participation. As already noted, the research on victim participation in TJ consultations is limited. There is an emerging body of work around victim participation in accountability mechanisms, some of which is referenced here, in addition to a larger body on victim participation in TJ at large. To unravel the concept of participation some of these scholars turn to adjacent fields of study, in particular governance, development and human rights (Evrard 2021: 2–6). In his efforts to understand different levels of victim participation in the Khmer Tribunal, Mohan turns to the work of Sherry R. Arnstein who examines degrees of power and tokenism that citizens have in public consultations, which can range from mere consultation to occupying positions of leadership (Arnstein 1971: 176, 177). This framing, which is frequently referenced in writings on participation, has nonetheless being critiqued for its restrictiveness in terms of its linearity and lack of dynamism (Collins and Ison 2009: 358–73), in addition to over-emphasizing mechanisms over larger processes (Evrard et al. 2021: 5). However, it retains utility to remind us that participation can be tokenistic, especially given the knee-jerk response to measure participation through footfall, and at best, assessing whether marginalized groups are represented. K.K. Grewal’s warns ‘All too often participation becomes a device: a space to suggest the desire for inclusion of the subaltern when in fact they are only brought into legitimate structures and processes that are already decided and over which they have no say' (Grewal 2023: 331).

Making TJ processes more participatory for victims requires going beyond the rhetoric to re-examine praxis. Much of the literature on participation in TJ tends to focus on aspirational principles and anecdotal viewpoints. While these two lenses are critical in their own right, it is useful to shed light on the mechanics of TJ processes, including the underlying assumptions and biases within the process, to examine how they are designed and operationalized. Evrard and others highlight ‘the importance of developing a more adequate conceptual framework for thinking about the modalities and meaning of participation, before we can even start to think about its (aspired) effect’ (Evrard 2021: 4). I would suggest that to do so requires more attention to victims’ perspectives but also the mechanics of processes, especially the drivers—the different sets of individuals involved in planning and implementing them. It is this unique perspective that this article brings to the existing literature. The struggle for victim participation is often, and correctly, characterized as a battle with the state, but this ignores a critical set of actors. This essay spotlights not just victims but also those operating within the TJ machinery: the TJ experts, the psychosocial consultants, civil society elites, policymakers, and in this case those who were involved in designing and implementing the consultation process in Sri Lanka.

To examine victim participation, I use an empirical framework of three different contributory elements of victim-centered consultations: representation, the challenges to integrating and listening to victim voices, and the role of expertise. This provides a means to probe larger questions of what are the forms of victim representation in the process; how are those representatives being listened to, and who designs the process. Besides Arnstein’s ladder of participation, S. Kendall and S. Nouwen’s characterization of ‘representational practices’ of experts and civil society actors in relation to the international criminal court (Kendall and Nouwen 2013: 235–62) and Robins’ work on the role of elites in TJ processes offer useful lens to examine the praxis of participation (Robins 2012: 4). While assessing the degree of victim participation for each of these areas, this article also looks at the practical challenges to securing greater involvement, highlighting commonly held assumptions, the reliance on legalistic and technocratic TJ tool kits, and the privileging of specific forms of knowledge.

4. Victim representation: from consultation to leadership

Representation is one obvious way to advance participation. However, there is a marked hesitation in setting out what this should look like in practice. Both in terms of the national context, where the CTF marked a distinct break from previous commissions, and internationally, where the idea of victims occupying leadership positions is still debated, the CTF offers a distinct model worth considering.

Submissions are the most frequently cited form of victim participation. For example, Tunisia’s post-2011 TJ consultation process employed a comparable structure to the CTF with a central committee and regional subcommittees involving over 100 persons. Yet, in an evaluation conducted in 2015, the ‘lack of direct access to victims, even through an association representing them’ was noted (Andrieu et al. 2015: 40). The study goes on to talk about representation through ‘intermediaries’ and even goes so far as to suggest ‘indirect participation is probably the most realistic approach’ (Andrieu et al. 2015: 35).

By comparison, the CTF had more direct participation by victims. An overwhelming majority of those making submissions in public meetings in the North and East were affected families, while civil society representatives were in the minority. As already pointed out, a majority of these victims were from families of the disappeared. In terms of Arnstein’s model, this is akin to token forms of participation where the public may be informed and consulted, but as the CTF demonstrates the value of victims claiming space to speak their truth is difficult to dismiss. The sheer volume of victim voices participating as individuals or as an informal group without an intermediary was what made the process so powerful and emotive. This form of direct representation was not, however, unique to the CTF as victims have played a vocal role appearing before commissions in the past in Sri Lanka.

Equating victim-centeredness with making submissions, however, risks devaluing the capacity of victims. For TJ processes to shift towards greater involvement of victims as part of a larger societal transformation requires a conversation on the composition of structures, and specifically the appointment of victims to positions within such structures. Arnstein points to the question of power where citizens can actively adopt a partnership approach to participation. Through the CTF civil society—a key arm of citizenry—took charge of an official consultation process on behalf of the State. This marked a significant shift for a repressive state where the space for civil society had been severely restricted in the postwar context. Previous commissions tended to consist of individuals associated with the state sector and a few civil society representatives. That the CTF was comprised of members entirely from civil society ‘with a long trajectory in the defense of human rights’ (UN HRC 2016a) signaled an effort by the State to create a different process, which helped build confidence among victims and affected communities. This development was part of a larger shift under the Yahapalanaya Government where key civil society issues became part of the coalition’s electoral platform and the national agenda, and they were also able to claim a seat at the table.

It was the feature of ZTFs—the regional subcommittees tasked with conducting sessions across the country—that made the CTF process unique in Sri Lanka. The ZTFs were the face, voice and ears of the CTF. They marked a break from previous commissions where public hearings were conducted by a centralized committee using the capital city as its base from which it would travel to different parts of the country. The ZTF enabled a level of decentralization where the country was divided into 15 zones, each with a local committee.⁴ The 108 individuals on the ZTFs reflected diverse issue groups, challenging common conceptions of representation. A majority were drawn from civil society, whose involvement is seen by the UN as an important step towards building a victim-centered approach (UN 2023: 8).

The issue of representativeness was an issue of concern for the CTF as it realized that the ZTFs could be reduced to a list of ‘usual suspects’ of senior prominent men from the main urban centers, mainly from non-governmental organizations (NGOs). While civil society representation is seen as a good in itself, domination by NGOs can crowd out representatives from other formations (Gready and Robins 2017: 956–9). In this sense, the ZTF composition reflected a wider civil society including individual activists, religious leaders, lawyers, academics and leaders of movements. Writing on civil society in Sri Lanka highlights the dominance of NGOs from Colombo over space and resources (Orjuela 2005: 6–9; Grewal 2023: 331). I would extend this argument to address the multiple layers and gatekeepers at various levels, not just between the capital city and the regions, but also between provincial- and district-level elites and communities, and between victim leaders and non-affiliated sets of victims. In recognition of some of these dynamics, ZTF appointments were based on a set of criteria both for individual members and for the composition of each committee. For instance, members had to be domiciled in the zone, to avoid individuals being parachuted in. In terms of composition for each ZTF, besides gender the CTF also looked at a set of factors such as ethnicity, religion, language, caste, geography and vocation so that each ZTF could be as representative as possible, but securing this proved significantly challenging, especially as candidates had to apply for the ZTF position. This balancing of criterion resulted in some eligible candidates not being selected.

The lack of gender representation at a global level has prompted the question ‘where are women, where is gender and where is feminism in transitional justice?’ (Bell and O’Rourke 2007: 24). Half of the membership of almost all the CTF zonal committees consisted of women and more than half of the ZTFs were chaired by women, who were elected by their fellow ZTF members. Gender representation was achieved through a 50 percent quota for each ZTF, which was all the more striking in a country where a quota for female representation in elected bodies garners much opposition and which has one of the lowest proportions of women in elected offices, even among its South Asian counterparts (Kodikara 2011). A key motive for the quota was to ensure that women, who were expected to be a majority of victim participants, would feel more comfortable and secure.

The appointment of victims to the CTF structures, however, marked a symbolic achievement. The CTF apex committee, charged with designing and implementing the consultation process, included Visaka Dharmadasa, a victim-activist who had campaigned on the Missing in Action issue. Among the ZTF members, there was a subset who were victim-activists. In the two districts most intensely affected by the war, Killinochchi and Mulaitivu, a majority of the ZTFs were victims who had suffered violations ranging from military occupation of land to disappearances. This representation, besides emboldening victim engagement, generated greater public confidence in the consultation and overall TJ process. In at least three zones there was at least one member from the families of the disappeared. Reflecting on the ZTF appointments, adding victim-activists as one of the criteria for ZTF compositions would have strengthened the victim representativeness. The resignation of one ZTF member, who was a Missing in Action family member, due to the difficulties of dealing with competing claims on the ethnic conflict, served as a reminder of the challenges of victim inclusion and the deep polarization between different affected communities.

The idea of victims, and women in particular, being appointed to leadership positions can be challenging as it unsettles existing roles and hierarchies, including among civil society actors. When the names of the ZTFs became public I was called by a couple of senior (male) civil society figures from the Northern Province who criticized the selection of individuals who they saw as hapless victims who would be overwhelmed by the task. Such patronizing and patriarchal responses are not a phenomenon unique to Sri Lanka: ‘The characterization of women as victims should never, however, lead to their being considered as passive or powerless’ (UN OHCHR 2009: 20). The CTF thus found itself in the center of a debate as to whether (female) victims were capable of occupying positions of leadership. Furthermore, even as members of civil society appearing before the CTF spoke about the importance of victim-centeredness in future mechanisms, they referred to civil society (meaning more professionalized and educated members of NGOs, i.e. themselves) representing victims (Sectoral Meeting on Missing and Disappeared, 5 July 2016).

This challenge is reflective of a global pattern of NGOs and lawyers appearing and speaking on behalf of victims in TJ contexts (McEvoy 2007). Elitism based on class factors, vocation and self-interest has influenced civil society groups to demand seats at the table, instead of conceding that space to victims and other groups whom they claim to represent. Simon Robins argues that ‘a global rights agenda that uses the language of giving agency to the marginalized actually serves to maintain a status quo that guarantees the position of ethnic and caste-based elites’ (Robins 2012: 3). In Sri Lanka civil society groups played and continue to serve an integral role in highlighting the situation of victims and supporting them in diverse ways. However, ‘representational practices’ in human rights have created a context where civil society leaders, especially from NGOs, have taken on positions of spokespersons, sometimes simplifying often divergent opinions among victims or even supplanting politically ‘inconvenient’ views.

I would echo Robins’ assertion that

The aim here is not to devalue human rights discourse in transitional contexts, but to enrich it by demonstrating that rights are mediated by the actors who articulate them. In an unequal society, human rights as any other discourse will be articulated subject to existing power relations. (Robins 2012: 7)

Acknowledging these layered hierarchies can better inform the design and appointment processes, and thereby ensure more representative structures, with a clear space for victims within it. In this regard, the CTF offers an important example of the richness of the submissions and the diversity of voices when victims are provided space to participate unmediated. Nonetheless, the limitations of the CTF need to be acknowledged, including how much power victims had within the structure. Even though each of the 15 ZTFs produced their own report, which was compiled into a single volume, and a consultation with all ZTF members to run through the draft findings was held prior to its release, the main report was framed and written by the apex committee and the staff in Colombo.

5. Victim awareness versus experts’ willingness to listen

TJ consultation processes face a dual challenge of providing technical suggestions to fit legal–institutional frameworks, while giving space for and integrating the needs and suggestions of victims and affected communities. If consultation processes are implemented in a technocratic and legalistic manner with a predetermined TJ toolkit, most often a set of mechanisms, victims have little space to influence the overall framework. The UN, as a key proponent of this toolkit, has itself noted that: ‘Transitional justice is often seen as a mechanism-focused and technical process rather than a more comprehensive social intervention’ (Hamber 2021: 11). The utility of victims’ narrative is too often valued in terms of their ability to respond to predetermined models, and legal and policy frameworks, instead of serving as the basis to adapt and evolve TJ models.

Consultation bodies wield significant editorial power in how submissions get reflected, highlighted, marginalized or ignored in their reports. Thus even if victims highlight a range of issues and alternate, those leading the consultations, alongside the drafters of laws, and policymakers can disregard suggestions that challenge the latter’s approach and instead complain about victims being uninformed and offering no ‘substantive’ feedback. Roger Marino’s work on participation in ecological governance in Peru offers a cautionary note:

The result is a paradoxical multiplication of weak participatory channels, making the voices of local communities and indigenous peoples auditable, however, without a real compromise to translate these concerns into public policies beyond participatory processes. (Roger Merino 2018: 75)

This section explores the challenge that consultation processes face in trying to both respond to legal-technocratic frameworks and to provide space for victims to offer their suggestions and to challenge these frameworks, through examining how the CTF interpreted its mandate.

From the outset the CTF was confronted with cynicism from some state officials, and even civil society representatives, that victim-survivors and other affected persons would largely provide testimonies of their experiences, rather than substantive recommendations. The CTF offered a sweeping summation in its Final Report that seemed to agree with this sentiment:

the majority of submissions that spoke directly to the design, functions and powers of the mechanisms proposed by the Government, were largely from civil society organizations that work on transitional justice and reconciliation. (CTF 2016b: 4)

In terms of best practices literature, the effectiveness of a consultation process is often tied to the level of awareness of participants, which in turn is linked to an effective communication strategy (UNHRC 2016b: 12, 19). It is noteworthy that in some of the TJ literature and contexts, awareness raising is ‘often perceived as already constituting a form of participation’ (Andrieu et al. 2015: 44). Even though it did have some success in awareness raising, largely in situ, the CTF expressed deep reservations about the informed nature of consultations. It also highlighted the lack of a government-led communications strategy to generate public understanding of its TJ commitments (CTF 2016b: IX, 4). It was largely civil society organizations who conducted trainings and workshops, who had to explain both TJ concepts and the purpose of the consultation process (Grewal 2023: 325). One of the impacts of this lack of awareness was that some victims treated the consultations as yet another commission of inquiry, resulting in them providing narratives of their suffering and losses.

An often ignored factor is to what extent those conducting the consultations are willing to listen. This requires those implementing the consultations to adopt a less legalistic and technocratic approach, and be willing to reinterpret their mandate to reflect the public’s views and suggestions. The CTF’s mandate made specific reference to focusing on four predetermined TJ mechanisms and policymakers made clear the urgency for completing the task, thereby limiting the space for a more expansive process. The CTF took a decision to present public views and recommendations in relation to the four proposed structures, and adopted a legal framework addressing aspects such as scope, powers, functions, appointments and staffing, as it sought to avoid the findings being dismissed by lawyers who dominated the TJ drafting process.

However, the CTF made three important decisions to reinterpret its mandate in order to accurately capture the content of public submissions. Firstly, the CTF, at the outset, chose to interpret its mandate broadly rather than restrict itself to the civil war, which appeared to be the focus of the CTF mandate. This was based on the realization that submissions from across the country would speak of different violent conflicts and episodes of Sri Lanka’s troubled history and structural violence, including the experiences of marginalized communities such as the island’s aboriginal inhabitants (CTF 2016b: 345–6).

A second decision the CFT made was to declare its openness to recommendations beyond the four mechanisms, rather than ignore or merely fold them into the proposed mechanisms. Drawing on their experience of dealing with the State, some families of the disappeared were not enamored by another commission and instead presented a series of immediate and long-term measures. Responding to this demand, the CTF’s Interim Report included a subsection entitled ‘Before and Beyond the OMP’. Some victims also saw justice and truth as part of a ‘continuum’ so proposed a single mechanism, akin to a public tribunal (CTF 2016a: xx, 7). The CTF report treated such submissions not as evidence of flawed understanding but a re-conceptualization and an alternate model for taking TJ forward.

A third aspect of the CTF process was the effort to integrate the experiences of victims in relation to demands. For instance, families of the disappeared, including of those Missing in Action, drew attention to how they had been subjected to sexual extortion by government officials and police in their efforts to seek redress, so demanded gender representation and a strong complaints mechanism within the proposed structures (CTF 2016b: 191–3). Furthermore, I would argue that in the CTF process victim-survivors were able to not just lay out their needs but tried to envision how institutions should function beyond legal clauses: ‘The OMP should operate with a focus on assisting victim families and create a caring, accepting and respectful environment for the victim families’ (CTF 2016b: 205).

Rather than the onus being on families to frame their demands to match legal frameworks, consultations should challenge policymakers, lawyers and activists to figure out how to respond to the suggestions raised by victim-survivors. Consultations should not feel like a comprehension exam for victims, when it really is also a test of the ability of those undertaking consultations to listen. As Kiran Kaur Grewal argues

… to hear what is spoken may require us to look beyond the formal understanding of what is to be spoken about. Otherwise we are likely to misread the voices of subaltern actors as naively, misguidedly or simply ‘incorrectly’ speaking. (Grewal 2023: 334)

Flexibility in terms of the framework and active listening can not only offer a more accurate reflection of what was raised and suggested in the process, but can yield nuanced recommendations and a re-envisioning by affected persons.

6. Dealing with tears: integrating expert and victim expertise

TJ consultation processes require a broad range of expertise: communications, documentation, data management, protection, psychosocial support, archiving and training. This section takes one of these areas, the psychosocial, and explores the critical input provided by experts in mental health. Psychosocial issues have become a key focus area in TJ processes over the last few decades (Hamber 2021: 65–70). This interest has contributed not just to greater attention to psychosocial assistance as an ‘end product’ through reparations for instance, but as a TJ process issue. This section examines how expertise can improve a victim’s experience of a TJ process, but also highlights the importance of victim perspectives to designing such processes.

At the outset it is important to note that consultations can be a very emotional and triggering experience for victims; hence, integrating psychosocial considerations into such processes is integral. Families of the disappeared may be coping with ‘ambiguous loss’ (Boss 1999) and make their pleas with a sense of urgency and desperation that is distinct from other sets of victims. As already pointed out affected persons envision consultations not merely as a forum for making technical suggestions but for sharing their truth, including some incredibly painful experiences: breaking down as they recounted their experience of surrendering family members to the armed forces, never to see them again. Consultations on TJ also take place in highly charged contexts, where speaking out is a political and sometimes dangerous act.

In their submissions victim-survivors repeatedly highlighted how they had been disrespected, ignored, denied space or even harassed by previous state entities. For instance, a mother of a disappeared person stated:

We went to the Commission to tell our story. They say stop! Just answer our question! Is this the way they treat us? Do they know how hurt and deeply pained we are? No! They didn’t even wait for our answer and they wrote something down. They wouldn’t put down what we said. (CTF 2016a: 48)

The quote above underlines the experience of families of the disappeared across different contexts, who in their efforts to search for their loved ones have been traumatized and dehumanized and there is a risk of ‘secondary victimisation’ (Orth 2002).

Recognizing the emotional and psychological risks to both victims and those undertaking the consultations the CTF developed a Mental Health and Psychosocial Support (MHPSS) Design and Implementation Plan. A key measure was for each ZTF to have counselors who could provide support at meetings for participants or anyone else experiencing distress. Practical limitations thwarted executing this plan in full, including the lack of qualified and experienced personnel across all districts, and an effective monitoring system and formal peer support for the counselors. Nonetheless, in comparisons to previous commissions, the CTF marked a significant development in the integration of psychosocial services considerations, which was part of a larger shift in mainstreaming conflict-related psychosocial issues within the State. This was all the more striking given the severe restrictions on psychosocial interventions in postwar Sri Lanka (Salih et al. forthcoming). In addition to the process, the centrality of psychosocial concerns was also emphasized in a separate chapter in the CTF Final Report (CTF 2016b: 359–426), providing a snapshot of the experiences of victims and recommendations.

It could be argued that the awareness and sensitivity of some of the CTF members would have ensured some level of victim-centeredness. However, it was the presence of two psychosocial experts in the apex committee, and a further two psychosocial practitioners in the Panel of Experts, all of whom had significant experience of working with conflict-related trauma, that ensured that there was such focus on psychosocial considerations (CTF 2016b: 13). This links to a broader point of how inclusion of experts with local experience can decisively influence consultation operations.

It was in the interpretation of psychosocial considerations, however, that the CTF created a different experience. Despite the increased attention to psychosocial support within TJ, it is sometimes treated largely as a therapeutic or medical interventions offered to a distressed person (Backer 2003: 9–10). Research conducted on procedural justice draws attention to victims’ perceptions: how they are more likely to perceive processes as fair, if they are treated with dignity and respect (Jones et al. 2023: 237). The CTF attempted to look at the submission process from the perspective of a victim. One of the sessions of the ZTF orientation was a simulation of how a participant should be treated, highlighting that the psychosocial extended beyond responding to distress. In comparison to other commission experiences where Tamil-speaking victims in particular struggled to be understood by largely Sinhala and English officials from Colombo with limited contextual knowledge (CPA 2014: 9–10), the ZTFs, as discussed earlier, offered a more enabling environment. At the very outset, the CTF recognized that protection was a decisive issue so requested the Government to set up  a system to deal with incidents of intimidation by the armed forces and intelligence. Although there were 10 such incidents in the North and East, most were dealt with in a timely manner avoiding major disruptions to the consultations (CTF 2016b: 27–8).

Nonetheless, the CTF process also illustrates how some psychosocial strategies and assumptions need to be revisited. The CTF utilized a specific strategy for dealing with victims who broke down with tears mid-submission. They were to be escorted to another space, with their consent, and provided counseling. If they were willing they could recommence their session. This mode of dealing with distress has been critiqued in other contexts and groups working with the disappeared, on the grounds that it disempowers victims, disrupts their narratives, and silences them (Peccerelli, Fredy. Interview with the author, July 2023). As one victim-survivor who was a part of the CTF, reflecting on the process, commented ‘it is not me who is uncomfortable, it is you who are uncomfortable with my tears. So maybe you need counselling, not me’ (ZTF member. Interview with the author June 2019). As such, victims may prefer a member of the consultation committee hear them out and then be comforted. Being victim-centered requires taking advice from victims, especially on how they wish to be treated.

7. Concluding reflections: re-framing consultations

Almost 8 years later, the CTF feels less of a precedent and more of an aberration. Nonetheless, there are significant lessons to be learned from it, both for Sri Lanka and elsewhere. The CTF created spaces for the difficult work of dialogue and engagement in a deeply polarized context with multiple fault lines, facilitating victims to voice their needs, concerns and aspirations, and thereby offered a glimpse into an alternate reality where victims were able to articulate their views and visions for TJ. Beyond highlighting the benefits of a victim-centered approach the CTF also served to challenge existing practices around representation, responding to victim demands and expertise. The CTF also serves as a forewarning for victims and civil society members who wish to be associated with a future truth-seeking commission. Those most intimately involved in the CTF structures, especially the members of the ZTFs from the North and East, found themselves under attack for having ‘misled’ the public or, worse, of being ‘an accomplice’ of the Government. In parallel to the official TJ process, a series of continuous protests emerged across the North and East from 2015 onwards on the issues of disappearances and military land occupation, highlighting the alternate spaces created by victims to achieve redress and recognition.

As highlighted in this essay, there is utility in focusing on those involved in designing and implementing consultations and the larger TJ process. This could speak to some of the assumptions and prejudices of the policymakers, lawyers and TJ experts who are involved in the design and framing of the overall process, laws and institutions. Else the net effect will be a continued rhetoric of victim-centeredness and attention to specific operational aspects to make the processes ‘victim-friendly’ without examining and adapting TJ models to address fundamental victims needs and demands. Further research from diverse TJ contexts on how victims experience consultation processes, especially as they attempt to speak to and challenge predetermined models for addressing complex issues of justice, truth and reparations could help us better grapple with victim-centeredness. ‘All too often participation becomes a device: a space to suggest the desire for inclusion of the subaltern when in fact they are only brought into legitimate structures and processes that are already decided and over which they have no say' (Grewal 2023: 331). As Julia Bernath argues in the Syrian context:

with survivor-led movements now driving conversations and multilateral engagements for transitional justice, can thus also be seen as holding the potential to unsettle the politics of knowledge production usually associated with transitional justice as a field of policy, practice, and research. (Bernath 2024)

But the question that arises is whether the proponents of TJ are willing to engage with this unsettling?

Acknowledgments

This paper was enriched by my interviews and conversations with the many victims, civil society activists and my colleagues during the consultations and after. I am deeply grateful for the feedback provided by Simon Robins, Laura Huttunen, Farah Mihlar, Chulani Kodikara, Julia Bernath and the participants of the workshop ‘Social and political responses to the missing and the dead’, June 2023 and the assistance of Nihara De Alwis.

Conflict of Interest

As author of this paper, I herewith declare that I have no conflict of interest to disclose. The conflict of interest is that I was involved in the mechanism that is the focus of this article. I was one of the 11 members of the apex committee of the Consultation Task Force on Reconciliation Mechanisms (CTF) responsible for designing and operationalizing the consultation process. This is, however, a point I address within the essay as I acknowledge my bias and the insight that it provided.

References

Footnotes

Author notes