On 16 September 2015, the United Nations High Commissioner for Human Rights and the OHCHR Investigation on Sri Lanka issued two reports on promoting reconciliation, accountability and human rights in Sri Lanka. Their recommendation: the creation of an ad hoc hybrid special court to try war crimes and crimes against humanity. Which crimes were committed and how did the international community reach such a recommendation? This post will take a look at the civil war which plagued Sri Lanka for 25 years, the subsequent international response and finally, what does it take to create an ad hoc hybrid tribunal?
Background of the conflict
The beginning of the conflict between the Sri Lankan government and the Tamil Tigers dates back to colonial times when Sri Lanka was still called Ceylon and was under British rule. In the first half of the 20th century the two main ethnic groups, the Sinhalese and the Tamils worked closely together in government. In 1919 the major political organizations of the two groups even formed the Ceylon National Congress together. Nevertheless, tensions existed between the two groups, first on the political level and subsequently in the streets of Sri Lanka. The eruption of violence started in 1977 when anti-Tamil riots broke out after the general elections, which left 300 Tamils dead. The civil war itself broke out in 1983, with the murder of thirteen Sinhalese soldiers by the Liberation Tigers of Tamil Eelam (LTTE) and anti-Tamil violence taking place in Colombo. During this civil war between 80,000 and 100,000 people were killed, half a million persons were internally displaced and the Working Group on Enforced or Involuntary Disappearances reported 12,536 cases of enforced disappearances. Both sides committed large scale war crimes. Both the LTTE and the Sri Lankan government engaged in the recruitment of child soldiers, enforced disappearances, extrajudicial killings and the use of human shields. The war finally ended in 2009, with the LTTE admitting defeat on the 17th of May.
National and International Responses
Even though war crimes were committed by both sides of the conflict, it cannot be said that there were no attempts at accountability from within Sri Lanka. Indeed, multiple mechanisms were created to investigate the allegations. A Presidential truth commission on ethnic violence was created in 2002, to investigate crimes committed between 1981 and 1984, and in 2006 a Presidential commission of inquiry was set up to investigate certain high-profile assassinations. Other examples include the International Independent Group of Eminent Persons, the National Human Rights Commission and several regional commissions of inquiry. Nevertheless, these commissions had little impact: they were created with a limited mandate, faced strong resistance or criticism, or their recommendations were never implemented. Furthermore, as some of these commissions were established while the war was still on-going, their ability to conduct full investigations was limited. Finally, in 2010, President Rajapaksa set up the Lessons Learnt and Reconciliation Commission (LLRC), which was mandated to investigate events that took place between 2002 and 2009. Again, this commission received international criticism for its limited mandate and its perceived bias.
The international response has also been met with criticism. The war was not formally addressed by the United Nations Security Council – apart from a press release in May 2009, in which the Security Council expressed its grave concern over the worsening humanitarian crisis in Sri Lanka. Although Sri Lanka lost its seat in the UN Human Rights Council in 2008, the UN Human Rights Council adopted a resolution in 2009, proposed by Sri Lanka, which commended the Sri Lankan government for its efforts to protect civilians and its commitment to the promotion and protection of human rights. This resolution was strongly criticized by human rights organizations. However, in 2010, the UN Secretary-General created a Panel of Experts on Accountability in Sri Lanka (Panel of Experts) after international calls for accountability. This Panel of Experts would advise the Secretary-General on accountability in relation to the final years of the civil war and would review the actions of the United Nations in this regard. The Panel found evidence of “a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.”
In March 2014, the Human Rights Council requested the UN High Commissioner for Human Rights (OHCHR) to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka […] and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated […]” between February 2002 and November 2011. The OHCHR subsequently created the OHCHR Investigation on Sri Lanka (OISL). On 16 September 2015, two reports were published: one report by the OISL, which provides a detailed overview of the investigations and the alleged crimes, and one report by the OHCHR, which provides a summary of the investigations. Both reports also provide an extensive list of recommendations, one of which stands out. The OHCHR OISL recommends that the Government of Sri Lanka:
“Adopt a specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protection program, and resource it so that it can promptly and effectively try those responsible.”
An Ad Hoc Hybrid Special Court
The international community has created a plurality of ad hoc hybrid courts in recent times. A hybrid court can be described as a judicial institution with both domestic and international elements, created after a period of turmoil to ensure accountability for crimes committed during that period. Examples of such hybrid institutions include the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, the Serious Crimes Panels in the District Court of Dili in East Timor, the Regulation 64 Panels in the Courts of Kosovo, Section I for War Crimes in the Court of Bosnia and Herzegovina and most recently, the Extraordinary African Chambers in the Courts of Senegal. Every one of these tribunals is unique, as every institution has its personalized “mix” of international and domestic elements. The hybridity of such an institution can be discerned in multiple facets, ranging from the seat of the court, the composition of chambers and the applicable law, to its relationship with national courts, the composition of its budget and the nationality of its Prosecutor. The exact hybridity of an internationalized court is a very fine balance and depends on multiple factors.
What is needed before such a court can be created is an extensive period of negotiations. These negotiations must be as inclusive as possible and should involve representatives of the international community, the government of Sri Lanka, representatives of both parties and their victims – through NGOs and civil society. It is important that all these parties are involved in the negotiations on a hybrid tribunal, to ensure that any future court can receive their full support. After an agreement on the creation of a court is reached, a full examination and assessment of the Sri Lankan system must follow. This includes an assessment of its judicial capacity – are Sri Lankan laws in line with international requirements? Do these laws incorporate crimes under international law? Does Sri Lanka have trained judges who are experienced and unbiased? Are there courtrooms available? – as well as an examination of the security situation – can victims and witnesses be protected? Can judicial personnel be protected? Can trials be held without fear of government interference? Furthermore, the jurisdiction of the tribunal must be clearly established – over which period shall the court have jurisdiction? Which crimes will fall within the jurisdiction of the court? Over which persons shall the court have jurisdiction? Finally, the parties must agree, in advance, on the budget to be provided for the court. If the court does not have sufficient resources, it will not be able to function properly. Most importantly, the agreement must be reached on the main purpose of the court: what do the parties want to court to have established at the end of its mandate? Accountability for high-level perpetrators? Reconciliation between the different ethnic groups? End impunity for international crimes? It is only after an agreement is reached on these issues that negotiations can start on the exact hybridity of the tribunal.
A hybrid court will not be created in a fortnight. Even though hybrid tribunals are regarded by many as the go-to solution for any situation where accountability is needed, it is important that sufficient time is dedicated to its creation. Hybrid courts come with many pitfalls, as has been shown by the internationalized courts in existence. If the international community can learn from its mistakes and can keep expectations realistic, it may be able to ensure accountability for the crimes committed in Sri Lanka.
GENEVA — Rejecting Sri Lanka’s offer to set up a truth and reconciliation commission to address grievances from its 26-year civil war, the United Nations on Wednesday called for it to set up a special court, including international judges and lawyers, to investigate what it called “horrific” abuses committed by both sides.
The recommendations came in a landmark report on Sri Lanka that the United Nations High Commissioner for human rights, Zeid Ra’ad al-Hussein, told reporters in Geneva “draws us ever closer to the conclusion” that war crimes and crimes against humanity were committed by government forces and Tamil Tiger rebels.
“Our investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, including extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes,” Mr. al-Hussein said in a statement accompanying the report.
“We believe it should inspire the very changes so many Sri Lankans have long ached and wished for,” he told reporters.
The report was issued two days after the government announced that it would set up a truth and reconciliation commission and draft a new constitution.
Though the government’s offer to introduce a process for resolving conflict is “commendable,” the United Nations said, circumstances in Sri Lanka will “require more than a domestic mechanism.”
Sri Lanka’s criminal justice system “is not yet ready or equipped,” it said, to conduct a credible investigation that would deal with the legacy of anger and scepticism left by the previous government, as well as the sheer scale and gravity of the violations committed during the war.
In a note to the high commission acknowledging the report, the Sri Lankan foreign ministry said it was pleased with Mr. al-Hussein’s recognition of the government’s efforts to deal with issues of justice, governance and institutional reform and remained open to engaging with him on human rights.
The creation of a special hybrid court, with Sri Lankan and international jurists, prosecutors and investigators, is just one proposed step in a process of far-reaching institutional change that the United Nations said would be essential to achieving the reconciliation that has eluded the country since the civil war ended in 2009.
The 261-page report and a 19-page overview were produced by a core team of seven investigators with advice from three prominent international judicial experts. It followed years of resistance to an independent investigation by Sri Lanka’s president at the time, Mahinda Rajapaksa, who commanded the armed forces in the closing years of the civil war.
The election of President Maithripala Sirisena in January and the formation of a new government ushered in “a new political context in Sri Lanka, which offers ground for hope,” Mr. al-Hussein said.
The report documents widespread killings by security forces and Tamil Tiger rebels during the civil war, along with the disappearance of tens of thousands of people, including large numbers who were never seen again after surrendering to government forces at the war’s end.
It details the government’s intense shelling of hospitals and of thousands of civilians crammed into areas it had declared no-fire zones, which a previous United Nations panel of experts said might have killed up to 40,000 civilians.
A particularly shocking finding, the United Nations report says, was “the extent to which sexual violence was committed against detainees, often extremely brutally, by the Sri Lankan security forces” during and after the conflict, with men and women victimized.
Torture by the security forces was widespread, systematic and premeditated, particularly in the aftermath of the conflict, the report says, describing centres equipped with metal bars for beatings, barrels of water for waterboarding and pulleys for suspending victims.
For their part, the Tamil Tigers abducted adults as part of a strategy of forced recruitment that intensified toward the end of the war, and they made extensive use of children in armed conflict, the report says.
The United Nations undertook a human rights enquiry, not a criminal investigation, and thus did not try to pinpoint individual culpability, Mr. al-Hussein said. But he added that he believed that the report provided “a good foundation for a subsequent criminal investigation.”
Feelings were mixed among relatives of the disappeared who were listening to Mr. al-Hussein’s comments in a corridor outside the press room.
Sandya Ekneligoda, the wife of a journalist who vanished five years ago, said: “The high commissioner’s statement has given us strength. It means something can happen to achieve justice.”
Vathanna Suntharaj, whose husband, Stephen, a human rights defender, has not been seen since he was abducted off a street in the capital, Colombo, in 2009, was more cautious.
“So many promises have been made,” she said. “I want to see commitment and action.”
For that to happen, the report emphasizes, Sri Lanka needs to institute widespread changes in its security services and system of justice. Its laws do not criminalize war crimes, crimes against humanity or enforced disappearances, and do not recognize different forms of liability, like command responsibility, the report says. The country also does not have a reliable system of witness protection, essential in a nation where the threat of reprisals remains high.
In a statement to the Human Rights Council on Monday, the Sri Lankan foreign minister, Mangala Samaraweera, acknowledged the weakness of Sri Lankan institutions and promised a series of initiatives, including reparations for victims.