Transitional justice cannot exist without truth

^{Illustration by Sagi Thileepkumar.}

"It happened; therefore, it can happen again…it can happen everywhere."
— Primo Michele Levi, Jewish Holocaust survivor

Seventeen years after Mullivaikkal, Sri Lanka continues to stand as one of the starkest examples of how states accused of genocide and mass atrocity survive not through exoneration, but through denial, delay, and international exhaustion.

In May 2009, the Sri Lankan government declared victory over the Liberation Tigers of Tamil Eelam (LTTE), triumphantly announcing that it had "liberated" the country from terrorism and rescued Eelam Tamil civilians from the LTTEs control. Beneath that rhetoric, however, lay the mass killing of the Eelam Tamil population on a scale that continues to haunt international conscience. In the final months of the armed conflict, the Sri Lankan Army (SLA) repeatedly shelled government-declared "No Fire Zones", hospitals and humanitarian zones were attacked despite their protected status, civilians attempting to flee were trapped between bombardment and starvation, and enforced disappearances, extrajudicial executions, torture, sexual violence, and gender-based atrocities became rampant. Images and footage emerging in the aftermath of the war, alongside survivor testimonies, investigative documentaries such as Channel 4s Sri Lankas Killing Fields and No Fire Zone, and international reports including the OHCHR Investigation on Sri Lanka (OISL) revealed patterns of violence that included custodial rape, sexual humiliation, and gendered forms of torture perpetrated by the SLA against Eelam Tamil civilians. Even domestic mechanisms established amidst Sri Lankas broader performance of accountability, including the Paranagama Commission Report, acknowledged that material such as the Channel 4 footage provided a reasonable basis to believe that war crimes may have been committed, warranting investigation. To many survivors, observers, and scholars the scale and systematic nature of the violence appeared unmistakably as genocide, alongside war crimes and crimes against humanity.

Yet the Sri Lankan states response was not accountability, but denial.

Despite extensive documentation by journalists, survivors, human rights investigations, and international observers, Sri Lanka has consistently rejected allegations of war crimes, and denial evaded international accountability. The few prosecutions that did occur in the years following the war were negligible when measured against the scale of atrocities alleged. For example, the presidential pardon granted to Staff Sergeant Sunil Ratnayake, convicted in the Mirusuvil massacre case involving the killing of Tamil civilians, became emblematic of Sri Lankas entrenched culture of impunity. Military officials accused of grave abuses were celebrated as "war heroes" promoted to senior positions, politically protected, and even entrusted with diplomatic legitimacy abroad. The message was unmistakable: violence committed in the name of the state would not merely escape punishment — it would be rewarded.

This is where Sri Lankas transitional justice process fundamentally collapsed.

^{From top, clockwise: an elderly couple being treated at a makeshift hospital during the final days of the war; a photograph of a child killed during the Mullivaikkal hospital shelling; families of the forcibly disappeared continuing their search for justice; and a woman mourning the loss of a loved one at a Mullivaikkal Genocide Remembrance gathering.}

Transitional justice is not merely the establishment of commissions, offices, or diplomatic assurances to the international community. It is fundamentally about acknowledgment, accountability, institutional reform, reparations, truth-telling, and guarantees of non-recurrence. Countries such as Rwanda, Sierra Leone, and South Africa, despite their own shortcomings, demonstrated at least some political willingness to confront atrocity through tribunals, truth commissions, prosecutions, institutional restructuring, and public acknowledgment. Sri Lanka, by contrast, perfected the performance of reconciliation while preserving the architecture of impunity intact.

The contradiction became especially visible in the governments dual rhetoric. Internationally, Sri Lanka repeatedly assured the world of its commitment to reconciliation and domestic accountability mechanisms, including through commitments made under United Nations Human Rights Council Resolution 30/1. Domestically, successive governments reassured Sinhala nationalist constituencies that no "war hero" would ever be prosecuted. This duplicity was not incidental. It was structural. In a majoritarian political framework where the Sinhalese constitute the dominant electoral bloc, meaningful accountability for crimes committed against Eelam Tamils became politically inconvenient.

^{From top, clockwise: children hiding from shelling during the war; civilians taking shelter at a shelled hospital during the final days of the war in May 2009; a boy carrying his younger sister; a young child covered in blood; and families hiding in makeshift bunkers while attempting to survive the shelling.}

The consequences extend far beyond failed prosecutions.

As Martha Minow argues in Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, societies emerging from mass atrocity cannot meaningfully heal where those implicated in violence continue to retain political legitimacy, institutional authority, and public honour. Transitional justice, in this sense, is not merely about punishment, but about confronting what Minow describes as the danger of "routinized forgetting", the normalization of atrocity through silence, denial, and the continued exercise of power by perpetrators within post-conflict institutions. Sri Lankas post-war trajectory reflects precisely this failure. Rather than undertaking the kind of moral and institutional rupture necessary after mass violence, the state preserved the very structures, actors, and triumphalist narratives implicated in the atrocities against Eelam Tamils, while simultaneously attempting to suppress memorialisation, remembrance, and collective memory itself.

One of the most revealing aspects of Sri Lankas post-war conduct has been its hostility toward memory itself. Transitional justice requires societies to confront historical truth. Yet in Sri Lanka, even remembrance has become securitised.

The demolition of the Mullivaikkal Memorial at the University of Jaffna in 2021 exposed the states deeper anxiety: not merely fear of accountability, but fear of collective memory. Memorialisation in post-conflict societies is not symbolic excess. It is an internationally recognised component of healing, acknowledgment, and guarantees of non-recurrence. To destroy memorials is to attempt political erasure.

That erasure continues today (see here, and here).

^{Thousands of displaced civilians, including men, women and children, being transported alongside casualties and survivors.}

Ironically, some of the most meaningful transitional justice efforts concerning the Eelam Tamil genocide are now emerging outside the Sri Lankan state altogether. In the continuing absence of meaningful domestic accountability, diaspora-led memorialisation, archival initiatives, and people-led accountability mechanisms have increasingly assumed the role of preserving historical truth and resisting political erasure. One such initiative is the Human Rights Data Analysis Group (HRDAG) and International Truth and Justice Projects (ITJP) database documenting those killed and forcibly disappeared during the Indian Peace Keeping Force (IPKF) period. Efforts of this nature are not merely archival exercises. They constitute forms of counter-memory in a political climate where denial, suppression, and historical revisionism continue to threaten the preservation of Eelam Tamil experiences of genocidal violence. Parallel initiatives preserving oral histories, wartime testimonies, photographs, and survivor accounts similarly reflect an understanding that memory itself becomes a site of justice when formal institutions fail, as reflected in growing efforts toward safeguarding Eelam Tamil memories and archives.

Equally significant has been the role played by the Permanent Peoples Tribunal on Sri Lanka (PPT) in sustaining international attention on atrocities committed against Eelam Tamils. Though lacking formal enforcement powers, the PPT occupies an important space within transitional justice discourse by functioning as a civil society tribunal capable of documenting survivor testimony, evidentiary material, and expert findings in contexts where state institutions and international mechanisms remain politically constrained or unwilling to act decisively. The Tribunals sessions on Sri Lanka became part of a broader transnational effort to challenge impunity, preserve international scrutiny over Sri Lankas conduct during and after the war, and prevent the Eelam Tamil genocide discourse from being buried beneath geopolitical convenience and diplomatic fatigue.

The significance of the PPT lies not only in the conclusions it reached, but in the evidentiary and moral function it performed when formal institutions failed to act with comparable courage. Its Sri Lanka sessions developed progressively across time. The Dublin Session in 2010 found that the Sri Lankan state had committed war crimes and crimes against humanity, though it stopped short of declaring genocide on the material then available. The Bremen Session in 2013 went further, concluding that genocide had occurred and was continuing. The Berlin Session in 2022 deepened this trajectory by situating the destruction of the Eelam Tamil people within a broader structure of militarisation, counter-terrorism, geopolitical complicity, and post-war governance.

This progression is important because it demonstrates that the genocide finding did not emerge as a rhetorical assertion, but through a cumulative process of survivor testimony, expert evidence, archival material, earlier tribunal records, and sustained legal-political inquiry. The Tribunal also performed an important corrective function by refusing to treat Sri Lankas violence as a closed domestic episode of civil war. Instead, it examined how the dismantling of the 2002 Ceasefire Agreement, the erosion of parity in negotiations through terrorist designations, international military assistance, diplomatic shielding, and the criminalisation of Tamil political mobilisation contributed to the conditions under which mass atrocity unfolded.

In doing so, the PPT challenged the convenient international habit of isolating accountability within the territorial state while ignoring the external actors and strategic interests that enable atrocity. The Berlin verdict was particularly significant in this regard, as it identified the Sri Lankan state as the executor of mass violence while also examining the role of actors such as the United States, the United Kingdom, and the European Union in shaping the political and military environment of the conflict.

Equally important was the Tribunals treatment of genocide as a continuing process, rather than a single event frozen in May 2009. Its reasoning drew attention not only to physical destruction, but also to displacement, cultural erasure, militarised occupation, suppression of political identity, and the criminalisation of diaspora advocacy as continuing forms of group destruction. This is especially relevant to transitional justice because the harm suffered by Eelam Tamils cannot be adequately addressed through individualised remedies alone when the violence was directed at a people, their homeland, their memory, and their collective political existence.

The Tribunals emphasis on peoples rights and self-determination therefore restores a dimension often erased by state-centred accountability frameworks. Its feminist intervention was also notable. By foregrounding Eelam Tamil womens testimonies and the destruction of spaces of womens political agency, the PPT recognised gendered violence not as incidental brutality, but as part of the architecture of domination.

While its findings are not binding judicial determinations, their value lies in preserving truth where law has been paralysed by power. The PPT became, in effect, an epistemic archive: a forum that organised memory, named patterns of violence, and resisted the transformation of denial into official history.

^{The reconstructed Mullivaikkal Genocide Memorial at the University of Jaffna; members of the Eelam Tamil diaspora gathering during a May 18 Remembrance Day parade.}

This sustained effort toward documentation, memorialisation, and acknowledgment has gradually contributed to growing international political recognition abroad. Canada formally observes Tamil Genocide Remembrance Day, while memorials dedicated to Eelam Tamil victims have emerged in public spaces such as Brampton. The persistence of hostility toward even these acts of remembrance was reflected in the repeated vandalization of this Tamil Genocide Monument, underscoring how struggles over acknowledgment and historical memory continue to extend beyond Sri Lankas borders. In Australia, a Tamil Genocide Memorial was recently unveiled in Sydney, accompanied by statements from political representatives, including New South Wales MP Stephen Lawrence, calling for recognition of the genocide against Tamils. British parliamentarians and diaspora communities have similarly continued to publicly commemorate Mullivaikkal and call for truth, justice, and accountability, including statements by UK MP Uma Kumaran and the UK High Commission in Colombo. While these developments do not amount to binding judicial determinations under international law, they nevertheless represent significant forms of symbolic acknowledgment and restorative recognition in circumstances where institutional justice remains stalled.

Even within India, where the political and historical consequences of the genocide against Eelam Tamils continue to resonate deeply in Tamil Nadu, expressions of solidarity have often remained constrained by electoral convenience and shifting political alliances, leaving only a handful of voices consistently willing to articulate the question of Eelam Tamil self-determination without equivocation.

Sri Lankas transitional justice failure is not merely legal. It is moral, institutional, political, and psychological.

A state that refuses acknowledgment, protects alleged perpetrators, suppresses memorialisation, militarises Tamil regions, and continues majoritarian triumphalism cannot plausibly claim reconciliation. Impunity in Sri Lanka did not emerge because evidence was absent. It emerged because international political will proved weaker than geopolitical convenience.

The danger of this failure extends beyond Sri Lanka itself. When genocide allegations, mass atrocity, and systemic impunity are met with years of procedural stagnation, the international legal order teaches future states a devastating lesson: survive outrage long enough, and accountability may never come.

That is why Mullivaikkal is not merely a Sri Lankan issue. It is a warning about what happens when transitional justice is reduced to diplomatic vocabulary while victims continue to wait for truth, acknowledgment, and justice.

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Simhanjana Gopikrishna Sumathi is an Indian attorney and researcher with an LL.M. from Georgetown University Law Center, Washington DC where she specialised in National Security Laws and International Human Rights Laws. Her research inter alia focuses on international criminal law, genocide studies, transitional justice, human rights, and political violence.