“More Than a Domestic Mechanism”: Options for Hybrid Justice in Sri Lanka

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Other Writing
Publication Date: 
February 18, 2016

For nearly three decades, the government of Sri Lanka fought with the Liberation Tigers of Tamil Eelam (LTTE), but after years of resistance, the new government has committed to launching a genuine transitional justice program to address, and redress, the grave international crimes committed by all sides during the conflict. This welcome about-face comes after intensive engagement between Sri Lanka and the UN Human Rights Councilin Geneva over the past few years, which has been a major diplomatic initiative of the US mission there. In March 2014, because of the absence of a genuine domestic accountability process following the war, the Human Rights Council authorized a comprehensive investigation into international crimes committed in Sri Lanka between February 2002 (the signing of a ceasefire agreement) and November 2011 (the presentation of the results of the country’s own Lessons Learnt and Reconciliation Commission to the then-president). The report from the Human Rights Council’s investigation (known as the OHCHR Investigation in Sri Lanka, or OISL) exhaustively documented the commission of a wide range of international crimes and advanced a number of cogent transitional justice recommendations. Implementing the recommendations of the Council and the OISL, and adapting the lessons learned from other transitional states to the Sri Lankan context, offers Sri Lanka the opportunity to craft its own hybrid institution to redress crimes committed during the war, respond to the legitimate grievances of the victims, and ultimately lay the groundwork for a more peaceful and just society.

As a promising first step, and in response to the report, the government of Sri Lanka pledged to establish “mechanisms and measures to facilitate the right to know, the right to justice, reparations and guarantee[s] of non-recurrence.” It then co-sponsored aconsensus resolution setting forth the building blocks of a comprehensive transitional justice program. In addition to political reforms focused on good governance, the devolution of power, security sector reform, the demilitarization of Tamil areas, and the rule of law, the future transitional justice process will reportedly involve four main pillars:

 

  • a truth and reconciliation commission;
  • a reparations process;
  • an office to investigate and resolve disappearances; and
  • an accountability mechanism.

 

Although this will be a Sri Lankan process, the resolution calls upon government actors to take advantage of “expert advice from those with relevant international and domestic experience” and to draw upon “international expertise, assistance and best practices.” In short, it strongly encourages a hybrid justice process. Specifically, the resolution indicates that the Council believes the process must involve a judicial mechanism with a special counsel to investigate alleged human rights abuses and international humanitarian law violations, and that there is a role within both the judicial mechanism and the special counsel’s office for “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”

The resolution thus embodies one of the key recommendations emerging from the Human Rights Council’s engagement in Sri Lanka: the imperative of establishing a hybrid tribunal of some sort to ensure an independent, impartial, and credible criminal process free of intimidation and political interference. In the words of the OISL report:

[F]or an accountability mechanism to succeed in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators, that will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicisation and highly polarised environment in Sri Lanka.

The report also called on Sri Lanka to establish “an ad hoc hybrid special court” with international international judges, prosecutors, lawyers, and investigators to try both war crimes and crimes against humanity. The report indicated that the court needs “its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme.” In joining the Council’s resolution, Sri Lanka has affirmed the importance of including foreign personnel — including judges, defense counsel, prosecutors, and investigators, potentially drawn from among the Commonwealth states — in any judicial mechanism.

Read the full post at Just Security