Gehan Gunatilleke: “The Right to Memory: The Forgotten Facet of Transitional Justice* with highlighting emphasis imposed by The Editor, Thuppahi
The struggle of man against power is the struggle of memory against forgetting — Milan Kundera, The Book of Laughter and Forgetting (1979)
Introduction
Memory does not explicitly feature among the four pillars of transitional justice: truth, justice, reparations and guarantees of non-recurrence. Hence the precise role memory plays within a transitional justice process is often left to those negotiating the contours of the process. Memory is a vital ingredient in ascertaining the truth and in securing evidence to ensure justice for victims and survivors. Moreover, memorialisation of loss has a place in the symbolic initiatives owed to victims and survivors under the reparations pillar. Meanwhile, public memorials commemorating man-made tragedies contribute towards a society’s collective commitment to non-recurrence. Thus memory often becomes the lifeblood that preserves and binds the traditional pillars of transitional justice.
This [essay] asks the question: is the preservation of memory adequately prioritised in Sri Lanka’s transitional justice discourse? The chapter is presented in three sections. The first briefly explores the basis for recognising a right to memory, particularly in the context of transitional justice. The second discusses the role states play in the denial of memory. The third section attempts to grapple with some of the challenges faced in Sri Lanka in terms of preserving memory. It also discusses the extent to which memory features within Sri Lanka’s transitional justice discourse. The chapter accordingly argues that Sri Lankans have not been offered adequate public space to commemorate their individual and collective loss, and that such space must be provided—as a right—for transitional justice in the country to be meaningful.
Memory as a right
Some scholars assert the existence of a human right to memory. A proponent of such a view, Anna Reading, defines the right to memory as encapsulating ‘an acknowledgement of the otherness of the past made present and future through various symbolic and cultural acts, gestures, utterances and expression.’[1] Phillip Lee meanwhile defines ‘memory’ as ‘both the ability to recover and the process of recovering information and knowledge’.[2]
The claim to a right to memory often relies on its connection to other more established rights, such as the freedom of expression. The International Covenant on Civil and Political Rights (ICCPR) stipulates that the freedom of expression includes the ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of…choice.[3] The inclusion of such a broad range of media—including art—as forms of expression, is certainly consistent with the notion that the expression of memory and remembrance is protected under the ICCPR. Meanwhile, acts of remembrance or what Astrid Erll calls ‘collective memory’,[4] over time, have become infused with cultural practices. The Jewish festival of Passover is perhaps the quintessential example of a religious festival being based on remembering a proclaimed historical event—the liberation of Israelites from Egypt. Similarly, Tamils in the Northern Province commemorate fallen ‘martyrs’ of the struggle for a separate state by lighting lamps during Maaveerar Naal. The event often coincides with a Hindu festival of Karthikai Vilakkeedu, which also involves the lighting of candles, thereby infusing the act of remembrance with pre-existing Hindu cultural practices. If the right to memory is acknowledged for its relationship to and eventual contribution to culture, the claim to such a right is also located within the religious and cultural rights paradigm. The ICCPR clearly recognises a person’s freedom ‘either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice or teaching.’[5] Acts of remembrance for lost relatives could thus perceivably fall within the parameters of religious manifestation.
However, as noted by Lee, international law still fails to link collective memory to the ‘cultural heritage of humanity’.[6] For instance, Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) only provides a basic right to ‘take part in cultural life’.[7] Moreover, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions also fails to make this link.[8] Hence, while the right to memory may find support within the existing international rights framework, the claim to the right still relies on a purposive—perhaps creative—interpretation of that framework.
Despite the absence of a right to memory simpliciter in international human rights law, a right to both individual and collective memory may have a strong basis in the realm of transitional justice. At least four clear state obligations have been recognised in relation to the four pillars of transitional justice: (1) to disclose to victims, their families, and society all that can be reliably established about past events; (2) to investigate, prosecute, and punish perpetrators; (3) to offer victims and survivors adequate reparations; and (4) to remove known perpetrators from positions of authority.[9] These obligations have corresponding rights that are held by victims and survivors: (1) a right to know the truth;[10] (2) a right to see justice done; (3) an entitlement to compensation and to ‘nonmonetary forms’ of reparation; and (4) a right to non-recurrence, which includes ‘new, reorganised, and accountable institutions’.[11] In this context, individual and collective memory interacts with and could be linked to each of the pillars of transitional justice.
First, the fulfilment of the right to truth and the success of truth-seeking exercises are often dependent on the preservation of a witness’s memory. Thus the individual memory of victims and survivors—and perhaps perpetrators—is vital to establishing credible truth-seeking mechanisms. This is precisely why numerous oral history projects have often preceded truth-seeking and prosecutorial mechanisms as a means of retaining the memory of victims and survivors until a formal mechanism is established.[12] Second, transitional justice requires highly sophisticated data gathering and retention systems to ensure that evidence is stored for future prosecutions. Thousands of witness depositions are recorded for the purpose of establishing individual culpability and patterns of violations. Hence memory is also vital to eventually securing justice for victims and survivors. The prosecutorial burden of proof cannot be discharged without the memory of witnesses being left in tact. Third, memory, and specifically memorialisation, plays an important role in reparations policy.[13] As pointed out by Bhavani Fonseka, a holistic definition of reparations necessarily includes ‘satisfaction’, which entails memorials, museums and other forms of remembering the past.[14] She observes the importance of creating ‘memory spaces’ in Sri Lanka, which recognise ‘multiple narratives and provides the space for victims, families and others to grieve [and] remember’.[15] Finally, it is argued that memory is central to guarantees of non-recurrence. Lisa Laplante for instance argues that transitional justice projects preserve knowledge of the past, and that that knowledge facilitates protection from the recurrence of violence and conflict.[16] Such projects contribute towards the establishment of collective memory[17] and could eventually lead to reconciliation.[18] Thus collective memory is vital to fostering a clearer understanding of the root causes of conflict, and to recognising the need to collectively prevent recurrence.
States of course often attempt to undermine meaningful transitional justice. The reasons that motivate a state’s resistance are perhaps beyond the scope of this chapter. Briefly put, transitional justice places a cost on state actors—in personal, financial and reputational terms—and therefore prompts the state to hamper its progress. This motivation to resist transitional justice is at the heart of state initiatives to thwart individual and collective memory. Such initiatives are no doubt deeply harmful to victims and survivors. But they also demonstrate the state’s acute understanding of the centrality of memory to transitional justice. This is precisely why the argument must be made for the recognition and inclusion of an explicit right to memory. For such a right appears to be vital to the fulfilment of the rights of victims and survivors to each of the traditional pillars of transitional justice.
Repressive erasure and prescriptive forgetting
In the absence of a clear rights regime that guarantees individual and collective rights to memory, the discourse on memory is largely determined by state practice. In this context, it is worth understanding the state’s motivations for and methods of denying memory. A state motivated to undermine transitional justice may adopt one of two approaches to deny individual and collective memory.
First, the state may engage in ‘repressive erasure’ of memory. Paul Connerton offers an interesting typology for forgetting, and lists ‘repressive erasure’ as a ‘type of forgetting’.[19] Repressive erasure involves the obliteration, destruction or the editing out of memory as part of a concerted policy. Such erasure often takes on an aggressive form—as a means employed to ‘deny the fact of a historical rupture as well as to bring about a historical break’.[20]
The Sri Lankan state has in the past deployed a policy of repressive erasure. Such a policy was initially adopted by the state immediately following the conclusion of the civil war between the state security forces and the Liberation Tigers of Tamil Eelam (LTTE). When hostilities ended with the defeat of the LTTE in 2009, certain state officials insisted that no civilian casualties occurred during the final stages of the war. For example, on 17 August 2010, the former Defence Secretary Gotabhaya Rajapaksa testified before the Lessons Learnt and Reconciliation Commission (LLRC) that the ‘civilians’ who were reported to have died during the final stages of the war were most likely LTTE combatants. He claimed that LTTE combatants removed their uniforms and wore civilian clothes, and that the LTTE must have suffered at least 6,000 casualties. At the time, this casualty figure corresponded to the initial United Nations figure of civilian casualties.[21]
Repressive erasure, however, can also come in non-violent forms and can be ‘encrypted covertly’.[22] For example, the Sinhala-Buddhist nationalist project of establishing a historical claim to dominance in Sri Lanka may be properly described as a project that aims to erase the historical claim other communities might have to the country. Sasanka Perera observes that the Mahāvamsa deliberately characterised wars waged by ‘Sinhalese’ rulers—such as the war waged by King Dutugemunu—as campaigns undertaken to ‘protect Buddhism and the Sinhalese nation’ from ‘foreign’ rulers—such as King Elara.[23] This narrative eventually dominated the consciousness of the Sinhalese majority and formed ‘an important aspect of…socialisation in contemporary Sri Lanka’.[24] This narrative is now firmly embedded in the current education system and can be found in history syllabi taught in schools.[25] Yet according to R.A.L.H. Gunawardana, who closely examines the original Mahāvamsa text and alternative historical sources, Dutugemunu’s campaign was unlikely to have been a ‘Sinhala-Tamil confrontation’.[26] He argues that the campaign merely aimed to capture territory and that it probably predated race consciousness. Hence the cosmopolitan claim to Sri Lanka as the historical homeland of many communities including Tamils has been systematically suppressed and replaced with a single dominant narrative on how the country belongs to the Sinhala-Buddhist community. While this narrative has evolved to accommodate other groups, it consciously projects a ‘host-guest’ dynamic. This projection casts the Sinhala-Buddhist community as the ‘host’ of the country, and all other groups as ‘guests’, and often explains the dominant mindset of Sinhala-Buddhist nationalism.[27]
The two examples of repressive erasure cited in this section are intrinsically connected and mutually reinforcing. Gotabhaya Rajakasa refused to recognise the dead as ‘civilians’ by characterising them as ‘terrorists’. He therefore claims that no Tamil ‘civilians’ died. Incidentally, according to the Mahāvamsa, when King Dutugemunu laments the slaughter of ‘millions’ during his military campaign against Elara, a group of Buddhist monks console him, claiming: ‘Only one and a half human beings have been slain here’.[28] This claim dehumanised Elara’s troops—who according to the Mahāvamsa were Tamils—and justified indifference towards the final death toll. Though Rajapaksa attempts to make a factual claim and the monks attempt to make a philosophical claim, both claims emanate from the desire to erase the agency and legitimacy of the ‘other’. Thus both claims attempt to repressively erase the collective memory of Tamils—by ‘othering’ them in history and by editing out their recent victimhood.
Such claims also underpin the direct comparison of former President Mahinda Rajapaksa (Gotabhaya Rajakasa’s brother) to King Dutugemunu. Soon after the war, posters and monuments throughout the country likened Rajapaksa to Dutugemunu.[29] Eranda Jayawickreme et al argue that this ‘juxtaposition’ is an example of a ‘ritualistic recollection of events and heroes whose mental representations include a shared feeling of success and triumph among group members’.[30] Moreover, these ‘glorifying myths’ and the ‘selective recounting of a group’s history’ underscore the Sinhalese majority’s sense of entitlement to land and power, which was vindicated through the defeat of the LTTE in 2009. It is in this context that the LTTE’s defeat and the state’s reclamation of territory in the North and East of Sri Lanka were met with widespread triumphalism in Southern parts of the country.[31] Such triumphalism formed a fundamental part of the state’s agenda of repressive erasure.
Second, the state may engage in ‘prescriptive forgetting’. Connerton describes this type of forgetting as an erasure that is believed to be ‘in the interests of all parties to the previous dispute and…can therefore be acknowledged publicly.’[32] A typical rhetoric that flows from this approach is that all must not only be forgiven, but also forgotten. A good example of this approach is the Treaty of Westphalia, which brought the Thirty Years’ War to an end in 1648. As recalled by Connerton, the Treaty ‘contained the injunction that both sides should forgive and forget forever all the violence, injuries and damage that each had inflicted upon the other.’[33] He also offers an interesting example of how implicit forgetting was seen as a necessary part of a transition from war to peacetime. In post-Second World War West Germany, it became clear that the country could not be returned to self-rule if the ‘purge of Nazis’ continued. Hence in the 1950s, the identification and punishment of former Nazis was progressively de-prioritised.[34]
Prescriptive forgetting is clearly evident in Sri Lanka’s post-war transitional justice discourse. In fact, initial attempts at repressive erasure later evolved into a strategy of prescriptive forgetting. At various points since the end of the war, state actors have advanced the need for ‘forgiving and forgetting’ to ensure national reconciliation. The project has two distinct but mutually reinforcing limbs.
The first involves the cultural legitimisation of ‘forgiveness’ as part of the so-called ‘Sri Lankan’ approach to dealing with injustice. Following the end of the war in 2009, state officials including then Minister of External Affairs, G.L. Peiris suggested that the Sri Lankan approach to justice was uniquely ‘restorative’ in its goals.[35] This position was then elaborated upon by former Attorney-General and advisor to the Cabinet, Mohan Peiris, who in a speech titled ‘Sri Lanka’s Approach: Restorative Justice vs. Retributive Justice’, claimed that the Sri Lankan philosophy of transitional justice ‘[f]avours restorative justice rather than retributive justice’.[36] He also claimed that this approach resonates with Sri Lanka’s own Buddhist tradition of ‘tolerance’ and ‘compassion’. Former High Commissioner to the United Kingdom, Chris Nonis also canvassed the cultural legitimacy of forgiveness. In an interview with CNN, he claimed that the LLRC’s approach was not to focus on ‘punitive justice where you punish people’ but on restorative justice.[37] The repeated references to a culture of forgiveness soon morphed into a quasi-official view on transitional justice in Sri Lanka.[38]
The second limb of the state project on prescriptive forgetting relates to the proposition that future reconciliation requires ‘moving on’ from the past. This idea does not seek to find legitimacy in cultural peculiarities, but rather in pragmatism. Just as West Germany saw the pragmatic value of de-prioritising the punishment of former Nazis, the Sri Lankan state advanced the idea that prosecutions of military personnel would undermine reconciliation.
A pragmatic and ‘consequentialist’ argument against remembrance has also been presented by scholars such as David Rieff. Rieff argues ‘historical memory is rarely as hospitable to peace and reconciliation as it is to grudge-keeping, dueling martyrologies and enduring enmity’.[39] Similarly, in Sri Lanka ‘not dwelling on the past’ but ‘focusing on the future’ is often prescribed as the medicine that will eventually heal the wounds of the war.
Rieff’s concerns with respect to the dangers of manipulative and one-sided remembrance need to be taken seriously. Yet, as pointed out by Pablo de Greiff, such concerns should not justify a generalised antipathy towards remembrance.[40] He explains that the state’s duty to preserve memory is subject to a process of ‘examination, contestation, contextualisation, and verification characteristic of both historical methodologies and the work of, for example, truth commissions.’[41] While de Greiff appears to stop short of recognising an explicit right to memory, he calls for the recognition of a ‘duty to remember’, which safeguards ‘accounts of the past that are sufficient to set inquiry in directions that have been previously kept hidden’.[42]
The present government does not hold a consensus view on prescriptive forgetting, possibly due to the multiple ideological positions accommodated within the current government coalition. The government’s decision to co-sponsor a resolution—which included commitments on the establishment of mechanisms for truth seeking and accountability for crimes—at the 30th Session of the UN Human Rights Council (UNHRC) is certainly commendable in this context.[43] Yet many key actors within the present administration appear to maintain the view that truth and justice could undermine reconciliation. For example, government Minister Champika Ranawaka, in his critique of the resolution, argued ‘the resolution, if implemented, could only result in a nationwide crisis, the end of which, if ever, would be furthest from national reconciliation’.[44] Ranawaka is a key ideologue among the Sinhala-Buddhist polity. His argument related to Sri Lanka’s commitment in the UNHRC resolution to prosecuting those accused of committing war crimes and crimes against humanity. Meanwhile, the government announced that a ‘Compassionate Council’ comprising religious leaders would be established as an adjunct to the proposed Commission for Truth, Justice, Reconciliation and Non-recurrence.[45] Such developments betray the state’s continuing willingness to prescribe ‘forgiving and forgetting’ as a central path to recovering from the past.
Sri Lanka’s memory deficit
The state’s post-war strategy of prescriptive forgetting has led to a distinct gap in the memorialisation of past atrocities. In the study, Confronting the Complexity of Loss, I invited several participants (all of whom were victims or survivors of certain major violent events in Sri Lanka’s recent history) to reflect on the importance of memorialising past events. It was explained that memorialising could take various forms. Such forms could be ‘public’ in nature, such as monuments or special dates set aside for the purpose of remembrance, or ‘private’, such as an almsgiving. Interestingly, the participants remained divided on the issue. Some insisted that memorialising was important—even indispensible, while others felt that closure depended on forgetting.[46] Three distinct attitudes to memorialisation could be detected among the views of these participants.
First, certain participants saw no benefit in memorialising their loss. One participant who lost a sibling during the Janatha Vimukthi Peramuna (JVP) insurrection, which took place in the late 1980s in Southern parts of Sri Lanka, stated that remembering his brother was too painful and that he saw no point in memorialisation. For such individuals, the act of memorialisation amounted to a painful resurfacing of old wounds.[47]
Second, certain participants pointed to the ‘inevitability’ of commemoration. These participants claimed that an emotional—even existential—need to memorialise their loss arose even though there was no conscious attempt to seek such memorialisation. For many victims and survivors, there is often no option but to remember. It is not merely that they will not forget. It is that they cannot forget. Such inevitability of memory is observed in the work of Jorge Luis Borges, who according to Phillip Lee uncovers the inescapability of memory.[48] A participant of the above-mentioned study, whose husband disappeared after surrendering to the Army in 2009, observed: “How could I forget? Even if someone claims that they are trying to forget, it is a lie. If my husband comes back, then I may be able to forget it. If more sorrow keeps piling up, then it is hard to forget.” [49]
Finally, certain participants considered memorialisation as necessary both for their personal benefit and for the benefit of others who endured similar loss. These participants emphasised the need for events and memorials that could facilitate collective remembrance. One participant whose son was abducted during the JVP insurrection argued that memorialising was important because ‘we must tell our children and the future generations about the damage that was done.’[50] Similarly, a participant who lost his home during the July 1983 anti-Tamil pogrom observed: ‘the truth about what happened must be told and never forgotten’.[51]
Thus, for many victims and survivors, remembering the past can have both personal and public value. On the one hand, it can help maintain the memory of lost family members and facilitate truth, justice and reparations. On the other, it can prompt a society to reflect on its past and work towards the non-recurrence of violence in the future. In this context, victims and survivors will look to the state to acknowledge the inevitability and value of memory, and to facilitate memorialisation.
Despite the expectations of victims and survivors, the Sri Lankan state has failed to provide public spaces for memorialisation. There are very few public monuments or memorials in Sri Lanka that commemorate victims and survivors of man-made tragedies. While the last three and a half decades alone have seen a number of egregious tragedies, none of them are memorialised in a state-sponsored initiative. One of the only state sponsored memory sites existed in a location close to the Diyawanna Oya in Battaramulla, Colombo. The site—named the ‘Shrine of the Innocents’—was commissioned in 1996 by former President Chandrika Bandaranaike Kumaranatunge on the behest of the Mothers’ Front, an organisation comprising families of those who disappeared during the JVP insurrection.[52] The memorial was designed by artist Jagath Weerasinghe to specifically commemorate the tragic abduction and murder of 33 school children of Embilipitiya Maha Vidyalaya located in the South of Sri Lanka.[53] Yet, in 2012, the government under Mahinda Rajapaksa seized the site and demolished the monument to make room for a market centre.[54]
In this context, it is unsurprising that the capital city, Colombo—the venue of recurring violence, including the 1983 anti-Tamil pogrom, civilian bombings by the LTTE and countless disappearances of youth during the JVP insurrection—does not have a single monument commemorating victims and survivors of recent atrocities. By contrast, Colombo has witnessed a proliferation of monuments dedicated to the military. At least three war memorials commemorating military casualties of war exist in Colombo. The first is a British War Memorial located in Victoria Park. The second is a memorial at Sri Jayawardanapura Kotte for the Indian Peace Keeping Forces. Finally, a memorial for Sri Lankan servicemen lost during the civil war that ended in May 2009 is located at the Parliament grounds in Sri Jayawardanapura Kotte. Thus the state, in defining war and post-war narratives, has emphasised the soldier’s valour at the expense of the victim’s grief. The prescription appears to be clear: remember the soldiers who freed society from terrorism, not the victims and survivors who suffered in the process.
In the absence of state-sponsored memorials, civil society actors have created their own memory spaces. Such spaces exist in both the North and other parts of the country, and have been erected by victims and survivors of the war, and families of those killed or disappeared.
In the Northern Province, a memorial pillar for slain journalists and media workers was constructed and unveiled in March 2016 in Jaffna.[55] In fact, the eleventh anniversary of the assassination of journalist Dharmeratnam Sivaram was commemorated at this site in April 2016.[56] A number of journalists and political representatives attended the event. Another such memorial in the North exists in Uruthirapuram, Kilinochchi on a property owned by the Catholic Church. The memorial was built in 2010, and commemorates victims including Rev. Mariampillai Sarathjeevan, a priest who died during the last stages of the war.[57]
Meanwhile, a monument dedicated to disappeared persons exists in Raddoluwa, Seeduwa, located in the Western coast of the country. Families of the disappeared from all parts of Sri Lanka visit the monument, and also hold an annual event every year on 27 October.[58] The event is attended by families who lost relatives during the JVP insurrection and during the war in a demonstration of solidarity. 27 October is significant in the area of Seeduwa, as the bodies of abducted labour activists Ranjith Herath and M. Lionel were found on the same date in 1989 at the Raddoluwa junction.
While the state has generally denied victims and survivors public spaces for memorialisation, the present government has offered one important concession. Since 2015, the Independence Day celebration on 4 February has included a moment of silence for all those who perished during the war. The gesture, first recommended by the LLRC,[59] is a break from the triumphalism of the past. Yet the gesture is at risk of becoming tokenistic if it is not followed by meaningful memorialisation that offers a permanent space for victims and survivors to commemorate their loss—on their own terms. Thus there is a continuing need to build public memory spaces in Sri Lanka.
JVPers executed in the south
Conclusion
Memory has two personas. One is a fragile creature that is constantly at risk of extinction, and must be carefully restored to health. When victims and survivors are prevented from recalling their stories, the memory of a violent history may be lost, and with it, any real hope of discovering the truth or securing justice. As Lee aptly explains: ‘The first step on the road to restitution is to resurrect or rehabilitate a people’s memory.’[60] A state has a duty to preserve this memory and facilitate such restitution. Thus a principled state committed to transitional justice ought to accept its duty to fulfil the right to individual and collective memory. On the contrary, a state’s attempts to repressively erase memory or prescribe ‘political, social, or cultural amnesia’ are ‘deliberately injurious’, and from a human rights perspective, deeply unjust.[61] Any meaningful transitional justice project must actively resist such attempts.
The other persona of memory is that of an obstinate animal that refuses to die. In her groundbreaking book, When the Soldiers Came, Miriam Gebhardt demonstrated this remarkable side to memory.[62] She claimed that American soldiers raped thousands of German women during the Allied occupation of Germany following the Second World War. Her claim was based on certain records meticulously kept by Bavarian priests. Gebhardt’s book was published in 2015—seven decades after these atrocities allegedly took place. And thus the extraordinary and unrelenting stamina of memory can be understood through such work. While Gebhardt offers a sensational example, the Latin American experience perhaps demonstrates the futility of a state’s attempt to whitewash a history of violence. Thus a state in the aftermath of conflict must eventually grow to recognise and fear the stamina of memory. Instead of exerting energy to suppress memory, the state ought to embrace it as inevitable—just as victims and survivors often do. Thus even a pragmatic state should understand the value of facilitating memory.
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This chapter attempted to explore contemporary discourses on memory and to offer a case for the recognition of the right to memory, particularly in the context of transitional justice. However, the forgoing analysis reveals that developments in international human rights law and transitional justice have yet to result in a clear articulation of such a right. Meanwhile, states will continue to suppress memory either through openly repressive projects or passive initiatives that prescribe forgetting. In this context, state-sponsored denial of remembrance must be strongly resisted until it is transformed into state-sponsored promotion of memory. And in the process, arguments concerning principles and pragmatism must be offered in defence of the human right to individual, and eventually, collective memory. The fulfilment of this right perhaps reflects the final outcome of meaningful transitional justice. For it is through the transition of memory—from its fragmented form as individual recollections to its holistic form as collective remembrance—that we understand the true journey of transitional justice.
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A NOTE:
While the first Photograph (a superb shot of civilians trudging across bare land) is Gehan’s choice, the others are my insertions….. Michael Roberts
* Cite as: Gehan Gunatilleke, ‘The Right to Memory: The Forgotten Facet of Transitional Justice’ in Bhavani Fonseka (ed), Transitional Justice in Sri Lanka: Moving Beyond Promises (Centre for Policy Alternatives 2017).
END NOTES
[1] Anna Reading, ‘Identity, Memory and Cosmopolitanism: The Otherness of the Past and a Right to Memory?’ (2011) 14(4) European Journal of Cultural Studies 379, at 380.
[2] Phillip Lee, ‘Towards a right to memory’ (2010) 57(2) Media Development 3, at 3.
[3] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 (ICCPR), art.19. Also see Reading, op. cit. at 385; Lee, op. cit. at 8.
[4] Astrid Erll, ‘Cultural Memory Studies: An Introduction’ in Astrid Erll and Ansgar Nünning (Eds.), Cultural Memory Studies: An International and Interdisciplinary Handbook (2008), at 2. Erll defines collective memory as ‘The interplay of present and past in sociocultural contexts’.
[5] ICCPR, art.18.
[6] Lee, op. cit. at 9.
[7] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, at 3. It is noted that General Comment No.21 of the Committee on Economic, Social and Cultural Rights does not explicitly refer to the preservation of memory. However, it observes: ‘States parties, in implementing the right enshrined in article 15, paragraph 1 (a), of the Covenant, should go beyond the material aspects of culture (such as museums, libraries, theatres, cinemas, monuments and heritage sites) and adopt policies, programmes and proactive measures that also promote effective access by all to intangible cultural goods (such as language, knowledge and traditions).’ See Committee on Economic, Social and Cultural Rights, General comment No. 21: Right of everyone to take part in cultural life (art. 15, para. 1 (a) of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, E/C.12/GC/21.
[8] Lee, op. cit. at 9. See United Nations Educational, Scientific and Cultural Organisation (UNESCO), Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005.
[9] Juan E. Méndez, ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly 255, at 261.
[10] The right to truth is explicitly recognised in international treaty law even outside the context of transitional justice. For example, Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearance explicitly recognises the right to truth ‘regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.’
[11] Méndez, op. cit. at 261.
[12] See Kathryn Sikkink & Carrie Booth Walling, ‘The Impact of Human Rights Trials in Latin America’ (2007) 44(4) Journal of Peace Research 427.
[13] See U.N. High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Reparations Programmes, HR/PUB/08/1 (2008), at 23. Also see Pablo de Greiff (ed.), The Handbook of Reparations (Oxford University Press: 2006).
[14] Bhavani Fonseka, The Need for a Comprehensive Reparations Policy and Package, Centre for Policy Alternatives (March 2015), at 4. Also see Report of Diane Orentlicher, Independent Expert to update the Set of Principles to Combat Impunity, The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, 8 February 2005, E/CN.4/2005/102/Add.1.
[15] Fonseka, op. cit. at 11.
[16] Lisa Laplante, ‘The Peruvian Truth Commission’s Historical Memory Project: Empowering Truth-tellers to Confront Truth Deniers’ (2007) 6(4) Journal of Human Rights 436, at 437; Kristiana Eleftheria Papi ‘The Role of Transitional Justice Processes in Building Peace in Latin America’ E-International Relations (E-IR), 23 January 2015, at http://www.e-ir.info/2015/01/23/the-role-of-transitional-justice-processes-in-building-peace-in-latin-america [last retrieved 9 June 2016].
[17] Gil Eyal, ‘Identity and Trauma: Two Forms of the Will to Memory’ (2004) 16(1) History & Memory 5.
[18] Laplante, op. cit. at 437.
[19] Paul Connerton, ‘Seven types of forgetting’ (2008) 1(1) Memory Studies 59, cited in Lee, op. cit. at 4.
[20] Connerton, op. cit. at 60.
[21] Testimony of Gotabhaya Rajapaksa before the LLRC, 17 August 2010, available at http://www.llrcarchive.org/2010/08/gotabaya-rajapaksa [last retrieved 8 June 2016]. Also see, Peter Bouckaert, ‘Sri Lanka is still denying civilian deaths’, The Guardian, 5 September 2010, at: http://www.theguardian.com/commentisfree/2010/sep/05/sri-lanka-still-denying-civilian-deaths [last retrieved 9 June 2016].
[22] Connerton, op. cit. at 60.
[23] Sasanka Perera, The Ethnic Conflict in Sri Lanka: A Historical and Sociopolitical Outline, World Bank (February 2001), at 4.
[24] Ibid. at 8. Also see Gehan Gunatilleke, The Chronic and the Acute: Post-war Religious Violence in Sri Lanka, International Centre for Ethnic Studies & Equitas (2015), at 35.
[25] Gunatilleke, The Chronic and the Acute, op. cit. at 35-36.
[26] R.A.L.H. Gunawardana, ‘The People of the Lion: The Sinhala Identity and Ideology in History and Historiography’ (1979) 5(1) & (2), The Sri Lanka Journal of the Humanities 1.
[27] Gunatilleke, The Chronic and the Acute, op. cit. 50. This idea has been explored by Verité Research in its weekly publication ‘The Media Analysis’. See for example, Verité Research, The Media Analysis, Vol.3 Issue No.4 (4 to 10 February 2013).
[28] See Farzana Haniffa, Harini Amarasuriya & Vishakha Wijenayake, Where Have All the Neighbours Gone? Aluthgama Riots and its Aftermath: A Fact Finding Mission to Aluthgama, Dharga Town, Valipanna and Beruwela, Law & Society Trust (2015), at 7.
[29] Eranda Jayawickreme, Nuwan Jayawickreme & Elise Miller, ‘Triumphalism, fear and humiliation: The psychological legacy of Sri Lanka’s civil war’ (2010) 3(3) Dynamics of Asymmetric Conflict 208, at 214.
[30] Ibid. The authors cite V. Volkan, ‘Psychoanalysis and diplomacy: Part I. Individual and large group identity’ (1999) 1 Journal of Applied Psychoanalytic Studies 29, at 45.
[31] See International Crisis Group, ‘Sri Lanka: A bitter peace’ (2010) International Crisis Group Asia briefing No. 99, at http://www.crisisgroup.org/en/regions/asia/south-asia/sri-lanka/B099-sri-lanka-a-bitter-peace.aspx [last retrieved 8 June 2016].
[32] Connerton, op. cit. at 61.
[33] Ibid. at 62.
[34] Ibid.
[35] See speech by Prof. G.L. Peiris, then Minister of External Affairs at the 9th IISS Asia Security Summit, The Shangri-La Dialogue, Singapore on 6 June 2010, at http://www.mea.gov.lk/index.php/en/media/ministers-speeches?start=15 [last retrieved 8 June 2016].
[36] See Mohan Peiris, Sri Lanka’s Approach: Restorative Justice vs. Retributive Justice, 24 November 2011, at http://www.kadirgamarinstitute.lk/events/video.htm [last retrieved 8 June 2016].
[37] See ‘CNN interview with H.E. Dr. Chris Nonis, Sri Lankan High Commissioner to the United Kingdom’, Official Website of the Sri Lankan High Commission to the United Kingdom’ (November 2013), at http://www.srilankahighcommission.co.uk/index.php?option=com_content&view=article&id=409:cnn-interview-with-he-dr-chris-nonis-sri-lankan-high-commissioner-to-the-united-kingdom-&catid=1:news&Itemid=95 [last retrieved 8 June 2016].
[38] For a critique of this view, see Gehan Gunatilleke, Confronting the Complexity of Loss: Perspectives on Truth, Memory and Justice in Sri Lanka, Law & Society Trust (2015), at 90-97.
[39] David Rieff, Against Remembrance (2011), at 55-56, cited in Pablo de Greiff, ‘The Duty to Remember’ in International Centre for Transitional Justice, Does Collective Remembrance of a Troubled Past Impede Reconciliation? (Online Debate), 16 May 2016, at https://www.ictj.org/debate/article/duty-remember [last retrieved 8 June 2016].
[40] Pablo de Greiff, op. cit. However, Rieff offers an important caveat in David Rieff, ‘Collective Remembrance is Ideological, Not Impartial’ in International Centre for Transitional Justice, Does Collective Remembrance of a Troubled Past Impede Reconciliation? (Online Debate), 16 May 2016, at https://www.ictj.org/debate/article/collective-remembrance-ideological-not-impartial [last retrieved 8 June 2016]. He explains he and de Greiff are talking at cross-purposes, as de Greiff is ‘talking about societies in the immediate aftermath of war or murderous dictatorships’ while he is ‘talking about historical memory over a much longer timeframe.’ He clarifies that he certainly does not disagree with de Greiff about ‘what is owed to victims of atrocity’.
[41] Pablo de Greiff, op. cit.
[42] Ibid.
[43] UN Human Rights Council Resolution, ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, adopted at the 30th Session of the UN Human Rights Council, 29 September 2015, A/HRC/30/L.29
[44] Patali Champika Ranawaka, ‘From Puthumathalan to Geneva…’ The Daily Mirror, 23 September 2015, http://www.dailymirror.lk/88597/from-puthumathalan-to-geneva [last retrieved 8 June 2016].
[45] ‘What Ranil Didn’t Say’, Daily Mirror, 29 September 2015, at http://www.ceylontoday.lk/52-105139-news-detail-what-ranil-didnt-say.html [last retrieved 8 June 2016]; ‘Arrangements in place to set up a Compassionate Council – PM’, 13 October, News.lk (The Official Government News Portal of Sri Lanka), at http://www.news.lk/news/politics/item/10256-arrangements-in-place-to-set-up-a-compassionate-council-pm [last retrieved 8 June 2016].
[46] Gunatilleke, Confronting the Complexity of Loss, op. cit. at 69-70.
[47] Ibid. at 69.
[48] Jorge Luis Borges, Funes el Memorioso (1942), cited in Lee, op. cit. at 3-4.
[49] Gunatilleke, Confronting the Complexity of Loss, op. cit. at 70.
[50] Ibid.
[51] Ibid. at 67.
[52] Jagath Weerasinghe, ‘Shrine of the Innocents: [Dis/Re]appearance of a memorial’, Colombo Telegraph, 15 December 2011, at https://www.colombotelegraph.com/index.php/shrine-of-the-innocents-disre-appearence-of-a-memorial [last retrieved 8 June 2016].
[53] Basil Fernando, ‘Tales of two Sri Lankan massacres: The relevance of Embilipitiya to Bindunuwewa’, (2005) 4(3) Article 2 (Asian Human Rights Commission), at http://www.humanrights.asia/resources/journals-magazines/article2/0403/tales-of-two-sri-lankan-massacres-the-relevance-of-embilipitiya-to-bindunuwewa [last retrieved 8 June 2016].
[54] Weerasinghe, op. cit.; Gunatilleke, Confronting the Complexity of Loss, op. cit. at 70.
[55] ‘Memorial Pillar for slain journalists in Jaffna’, omlanka, at 30 March 2016, http://www.omlanka.net/news/4717-memorial-pillar-for-slain-journalists-in-jaffna.html [last retrieved 8 June 2016].
[56] ‘Murdered journalist Sivaram remembered in Jaffna’, Tamil Guardian, 29 April 2016, at http://www.tamilguardian.com/article.asp?articleid=17821 [last retrieved 8 June 2016].
[57] ‘In the north, Tamils defy government to remember Fr Sara, who died during the Civil War’, 27 May 2014, at http://www.asianews.it/news-en/In-the-north,-Tamils-defy-government-to-remember-Fr-Sara,-who-died-during-the-Civil-War-31197.html [last retrieved 8 June 2016].
[58] Gunatilleke, Confronting the Complexity of Loss, op. cit. at 71.
[59] Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (November 2011) [LLRC Report], at para.8.303.
[60] Lee, op. cit. at 6.
[61] Ibid. at 4.
[62] Miriam Gebhardt, When the Soldiers Came (2015).
