Balraj K. Sidhu & Bharat Desai
The report of the Office of the United Nations High Commissioner for Human Rights (OHCHR), headed by Zeid bin Ra'ad, concerning serious violations of human rights and related crimes in the Sri Lankan armed conflict has caused a stir in the subcontinent. It provides a graphic view on patterns of violence and grave violations of human rights and humanitarian law committed by both the parties to the conflict i.e. the Sri Lankan Government (SLG) and the Liberation Tigers of Tamil Eelam (LTTE). The report is a sequel to the Resolution adopted in March 2014 by the Human Rights Council (Geneva) to bring about accountability in Sri Lanka.
The much-awaited report has brought to light alleged crimes committed between 2002 and 2011. “Our investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes”, observes the Zeid Report. The report has cast aspersions on the credibility of the Sri Lankan domestic mechanism to investigate, establish the truth and seek accountability as well as provide redress to the victims.
The prolonged violence in Sri Lanka over 26 years has caused severe harm to local institutions. The capacity, credibility and fairness of governance structures has been harmed. The ousted Mahinda Rajapaksa regime did try to close the chapter on past atrocities with a Special Bureau of Reconciliation (SBR) to oversee implementation of recommendations of the Lessons Learnt and Reconciliation Commission. Since there has been severe criticism of such reconciliation, the UN Human Rights Council undertook investigation through OISL into serious violations of international obligations by Sri Lanka under international human rights and humanitarian conventions as well as the customary international law.
The report recommends setting up of a hybrid special court for Sri Lanka to end a culture of impunity and prosecution of the perpetrators. It reflects an emerging global pattern of institutional design to deal with mass atrocities and foster appropriate post-conflict justice mechanism. The idea of bringing to justice perpetrators of mass crimes before an international tribunal has now come to be institutionalised. Since 1945, seven models of criminal tribunals have enriched the landscape of international criminal justice: International military tribunals (Nuremberg and Tokyo), international ad-hoc criminal tribunals (Yugoslavia and Rwanda), international criminal court (ICC), hybrid special courts (Sierra Leone and Lebanon), internationalised domestic courts (Kosovo, East Timor and Cambodia), internationally assisted courts (Iraq) and international crimes tribunal (Bangladesh).
Hybrid courts and tribunals (HCTs) have came up due to limitations of international ad-hoc criminal tribunals. The remoteness of ad-hoc tribunals from conflict zones give an impression of “imposition of justice”. HCTs appear attractive as they combine local as well as international judges and prosecutors. They apply a mix of international and national laws, are located in the territory where the crimes took place and seek to provide transparent justice.
Such post-conflict justice HCTs accrue benefits to the national system by strengthening local mechanisms, widening horizons of applicable law and institutionalising a culture of accountability. They promise to make the process of adjudication more transperent and accessible to the post-conflict societies. Hybrid courts, however, could be seen as an intervention in internal affairs of a sovereign state. Moreover, combination of international and national components create a split structure that can lead to an uneasy relationship with each component protecting its turf and engaging in rivalry. The Special Court for Sierra Leone (SCSL) was the first hybrid experiment that smoothly completed its mandate in December 2013.
HCTs carry very limited mandate, work for limited duration, try only selected accused and result in very few convictions. They often cause a feeling of injustice among the victims who feel that “the small fry had been imprisoned while big fish remained at large”. Moreover, experiences of hybrid models demonstrate that they are not immune to being co-opted by vested interests for their narrow ends. The fears of politicisation gripped the constitution of the Special Tribunal for Syria as it was feared that “the tribunal will either be dominated by foreign powers or that it will serve to create a new political order, including disciplining Syria for its actions in Lebanon”.
Notwithstanding their growing usage, the HCTs are just a means and not an end by themselves. They could raise concerns regarding fairness of proceedings; procedure adopted; independence and impartiality of the tribunal and its key personnel; corruption; issues of capacity; the participation of victims in proceedings; and the question of the legacy of such courts. The utility of such courts depends upon how they are designed for a post-conflict society. It is in this context that Sri Lanka now stands at the crossroads, with the Sirisena government poised to rebuild the war-torn society and seeking reconciliation with the minority Tamils. The Sri Lankan government is trying to be in tune with view of the OISL to deliver justice to the war victims but their approaches on justice mechanisms differ.
The idea of a hybrid special court mooted in the Zeid Report proposes to prosecute and punish war crimes committed between 2002 and 2011. The proposed HCT model would require precise planning, certainty of resources, trust of domestic actors, sensitivity to ground realities as well as assuaging international concerns. The penchant of internationalised criminal trials normally seeks to zero in on top leadership during international and non-international armed conflicts.
The trials of Charles Taylor, Saddam Hussein, and Slobodan Milosevic proved controversial, showed embedded selectivity in such trials to punish leaders wielding absolute power and prove that they are a menace to their countrymen.
Thus multi-faceted post-conflict mechanisms appear to bring justice at the doorstep of victims who endured agonising pain during armed conflicts. The experiments of post-conflict justice mechanisms worldwide provide a concrete precedent and lessons for designing an appropriate architecture to bring about accountability in war-torn Sri Lanka. Hopefully, the proposed hybrid court for Sri Lanka will serve the desired purpose and help the island nation to close a sordid chapter in its history.
Balraj Sidhu is the Executive Director, Centre for Advanced Study on Courts & Tribunals and Bharat Desai is a Professor of International Law, JNU.