By Thamil Venthan Ananthavinayagan –

Thamil Venthan Ananthavinayagan

Given the recent political developments in Sri Lanka in 2015, namely the Presidential and Parliamentary Elections, it is prudent to ask: what will the new and old government in the post-Rajapaksa era do to encounter impunity and achieve accountability in Sri Lanka? Shortly ahead of the next United Nations Human Rights Council Session in September, it seems that the Obama administration -that initially pushed firstly for the investigation and later for its deferral- favors a domestic mechanism to prosecute perpetrators for alleged war crimes.

The author will inquire firstly discuss the elections and the implications of the results on accountability, the evolution to the upcoming Report of Office of the High Commissioner for Human Rights (OHCHR) and the current state, depict other venues for achieving accountability while using other country examples; subsequently, he will discuss the feasibility of those mechanisms and finally present his own findings as how accountability can be achieved in Sri Lanka.

The elections

After the surprising victory of opposition candidate Sirisena in the Presidential election, Foreign Minister Samaraweera said that Sri Lanka will create a domestic mechanism within two months to probe allegations of rights violations and bring perpetrators to justice. He called for the UN report to be held back saying the UN findings could then be referred to the domestic mechanism for “necessary action.”

“Unlike the previous government we are not in a state of denial, saying that such violations have not happened. We believe such violations have happened,” Samaraweera told the Carnegie Endowment for International Peace. “We are ready to ensure that those who have violated human rights in Sri Lanka will be brought to justice through such a mechanism.” The Parliamentary election now validated President Sirisena once again. The electoral defeat of the former president Rajapaksa for a second time within six months showed that he, Rajapaksa, has not understood the dynamics of change that has got embedded in public discourse to win elections. This election may now pave the way for genuine approach to reconciliation and accountability, while Mr. Sirisena and Mr. Wickremesinghe have not won in the North and the East. They still have to win the confidence of the Tamil population, now with the greater sense that the international eyes are on Sri Lanka,

The UN Commission of Inquiry Report

In March 2014, the United Nations Human Rights Council decided to open an international inquiry into alleged war crimes committed by both, the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE), in the final stages of a decades-long conflict that ended in 2009. This is a major leap forwards to promote and protect human rights as set out in the mandate of the Human Rights Council.

Adopted by a vote of 23 in favour to 12 against with 12 abstentions, the Human Rights Council requested the Office of 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, and to establish the facts and circumstances of such alleged violations “with a view to avoiding impunity and ensuring accountability.”

Scheduled to present the report in March 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, recommended a deferral until September 2015 of the OHCHR report. He explained that it was a “difficult decision”, with strong arguments for and against, but that a six month extension would facilitate vital discussions with a new Sri Lankan government which the previous government had refused. The High Commissioner affirmed it was for “one time only.” The High Commissioner echoed sentiments with respect to Sri Lanka when he said that he wanted a report that will have the maximum impact in ensuring “a genuine and credible process of accountability and reconciliation in which the rights of victims to truth, justice and reparations are finally respected.”

The current state

Nisha Biswal, assistant secretary of state for Central and South Asian affairs of the US State Department, made an announcement saying a credible domestic inquiry would render a more “durable outcome” and that the United States sensed new hope for reconciliation with the Tamils on the North-East of the island. Therefore, the United States will sponsor a resolution on Sri Lanka next month at the United Nations Human Rights Council backing Colombo’s plans for reconciliation and to conduct an investigation into possible war crimes during the final stages of the island’s civil war. Tom Malinowski, assistant secretary of state for democracy, human rights and labor, who accompanied Ms. Biswal on the visit, said the new government’s approach under President Maithripala Sirisena had been to protect the country’s interests without being defensive.

“The government has reached out, it has listened, it has engaged in dialogue with everybody,” Mr. Malinowski said. “It has acknowledged the need of truth-telling and accountability. In doing that, it has won a tremendous amount of trust and confidence.” He said trust in the new government was encouraging the international community to give Sri Lanka the time and space it requires to deal with “difficult issues” of its past.

A referral to the International Criminal Court by the UN Security Council

Before looking into the envisaged domestic mechanism, it is worth exploring the possibilities to pursue accountability at the prime international organ, the International Criminal Court (ICC). Is this feasible and possible? For example, one diaspora group, TGTE, the Transnational Government of Tamil Eelam, favors the referral to the ICC as they believe that neither a domestic mechanism nor a hybrid mechanism will mete out justice to the Tamil people. The TGTE’s signature campaign has so far reached more than one million signatures. At the same time, Tamil civil society groups in Sri Lanka also demand a referral to the ICC, The Tamil people feel disenfranchised, deprived of their dignity and stripped off their contribution to accountability on the island. Domestic or hybrid mechanisms only deflect the call for referral to the ICC and to delay other meaningful actions on accountability. In any case, a prosecution before the ICC is possible only under three circumstances: 1. Proprio motu investigations by the ICC Prosecutor, referral by the state parties or Security Council referral, see art. 13 a-c of the Rome Statute. Given the fact that Sri Lanka is not a signatory to the Rome Statue, only the latter option is applicable, unless Sri Lanka signs the treaty and self refers. However, looking at the geopolitical considerations and power relations within the UN Security Council, there are fears countries such as China may veto any referral to the International Criminal Court. In this context, an ad hoc tribunal under Chapter VII of the UN Charter is also not very likely given the above mentioned consideration (and financial constraints).

Hybrid courts

What about hybrid courts? Hybrid tribunals aim to redress the deficiencies of international tribunals on the one hand and domestic courts on the other. They incorporate national laws, judges and prosecutors, contributing to the capacity-building of the judiciary and the legal system, while also including international norms and personnel, conferring legitimacy, resources, experience and technical knowledge. The increasing reliance of the international community on hybrid tribunals to prosecute alleged international criminals has been said to be a consequence of the costs and frustrations of bringing to justice those responsible for genocide and ethnic cleansing in Yugoslavia and Rwanda and the political problems affecting the ICC. Accordingly, the international community has preferred to deal with the atrocities committed in East Timor, Kosovo, Sierra Leone and Cambodia through the use of hybrid tribunals. However, the more a hybrid tribunal relies on domestic procedures and expertise in judging international crimes, the more likely its interpretation of international humanitarian law will differ from that of other hybrid tribunals or of other transitional justice mechanisms, thus jeopardizing the uniform interpretation of international humanitarian law. Nonetheless, hybrid courts represent a sincere and laudable effort to improve on past transitional justice experiences and to remedy many of the major shortcomings of purely international tribunals. Some of the potential advantages of hybrid courts include the ability to foster broader public acceptance, build local capacity and disseminate international human rights norms. The collaboration of national and international legal personnel helps bring international law and norms to bear in ways that can be internalized and institutionalized. A hybrid court, therefore, can offer possibilities and lessons can be learnt from the previous examples in other countries as how mistakes can be prevented and advantages can be incorporated in the Sri Lankan version of such a hybrid court.

A domestic mechanism?

Finally, the author wants to highlight the domestic mechanism that the current Sri Lankan government and the US government are favoring. If such a domestic mechanism should work, despite the severe caveats by the TGTE and other critics, following recommendations by the author shall be taken into account:

1. The government should appoint a special prosecutor, autonomous from the attorney general, to investigate alleged war crimes. This idea is not new: Sri Lanka’s 1994 and 1998 disappearances commissions made the same recommendation (while the outcome of the commissions were quite unsatisfactory)
2. The sheer volume and complexity of these cases will require specialized courts. The government should create special trial and appeals chambers, preferably with national and international staff, to investigate, prosecute, and adjudicate war crimes cases. The current technical staff does not have the knowledge of international law to explore and try cases with the high international complexity.
3. Sri Lanka’s criminal code lacks statutes criminalizing war crimes and crimes against humanity and does not recognize command responsibility, joint criminal enterprise, and other recognized theories of liability under international law. The government should enact new legislation in these areas to signal a commitment to accountability and human rights. While ordinarily, such statutes would not apply retroactively, article 13(6) of the Sri Lankan Constitution allows retroactive application for offenses criminalized by customary international law at the time of commission. However, given the current power relations in the Sri Lankan parliament, it will be great challenge. One may note though that the international pressure and the ‘pull to comply’ is very different now, while a government of national unity can reconiloe different interests and reach a consensus. This could have a unprecedented moment in Sri Lankan history.

Another important issue for the Tamils is witness protection, as fears are still persisting in face of ongoing reprisals and intimidation by security forces. The absence of a witness protection system was one of the major points criticized by non-governmental organizations regarding procedural conduct of the Lessons and Learnt Reconciliation Commission.

After decades of failed promises, is accountability possible? This is going to be the watershed moment for Sri Lanka. Accommodating this approach, Guatemala’s example could be beneficial: the International Commission Against Impunity in Guatemala (CICIG), was established as an independent investigative body by an agreement between the UN and Guatemala. CICIG has the objective of assisting the Guatemalan State in investigating and dismantling violent criminal organizations believed to be responsible for widespread crime and the paralysis in the country’s justice system.

CICIG has the legal ability to support the Public Prosecutor’s Office in criminal prosecutions, and participate as a complementary prosecutor (querellante adhesivo), in conformity with Guatemala’s Code of Criminal Procedure. CICIG also has legal standing to make administrative complaints against public officials, in particular when officials have committed acts with the purpose to obstructing its mandate, and can act as an interested third party in disciplinary procedures initiated against such officials. CICIG’s Commissioner is appointed by the Secretary-General of the United Nations. The Agreement between the United Nations and the Government of Guatemala established an initial two-year mandate which was renewed in April 2009 and again in January 2011. Its current mandate runs through 4th of September 2015. With a similar fashion, lessons can be learnt for the Sri Lankan case while enhancing, facilitating and reforming the current criminal justice system. In case these changes are made, there is truly a chance for a credible and genuine approach to accountability for alleged war crimes in a domestic setting with an international connotation.

Conclusion

Achieving accountability is a not an easy endeavor, as it requires a multilateral approach: international expertise coupled with local knowledge, shared grievances in immediate vicinity and inclusion of all stakeholders, international experts, non-governmental actors, governmental officials and victims. A hybrid court or a domestic court can only work with sufficient international coverage and knowledge transfer.

With The Trial of the great Franz Kafka, one is confronted with the unique modern phenomenon, while one is distracted by the process of rationalization and bureaucracy: guilt as condemnation before the action occurs and without any knowledge of wrongdoing. The main character, Joseph K. is accused, and he never attempts to exonerate himself. Instead, the main character strives to understand the nature of the crime that he has obviously committed. The protagonist cannot plead incapacity to understand the meaning of right and wrong because he does not know what he has done that is wrong or, for that matter, right. The deed is in fact irrelevant: condemnation is an inherent privilege of judges, courts, state, and society. Nor can one explore the motive without having the act divulged. In the end -that is the lesson of the The Trial- everybody is responsible for all the actions of in each biography, including those in the deeply buried, the forgotten, the irretrievable past. Like Joseph K., we will be judged in every aspect and act of life by the authority of the father figure embodied in the state. Nobody should and can flee the justice, neither an individual, nor the state agent. It is utmost time that justice is served in Sri Lanka, the dignity of victims rehabilitated and the rule of law reinstalled.

The sound of justice must drown out the painful silence of impunity.

*Thamil Venthan Ananthavinayagan, LLM. (Maastricht University) is a PhD researcher at the Irish Centre for Human Rights at the National University of Ireland, Galway and where his work focuses on the UN Human Rights Council.