On September 16 of 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Zeid Al-Hussein, made a statement on the atrocities that occurred in Sri Lanka as a result of its 26 year long civil war. This war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) resulted in scores of crimes against civilians including unlawful killings, deprivation of liberty, enforced disappearances, torture, and sexual and gender based violence, as outlined by the report published by the Office of the United Nations High Commissioner of Human Rights.
After the Sri Lankan government defeated the rebel forces, there has been a new emphasis on reconciliation and healing of the country. To achieve this healing, the new government committed to dealing with issues of accountability. While the UN and the Commission for Human Rights have acknowledged this venture, there is a belief by the UN High Commissioner for Human Rights and Human Rights council that Sri Lankan government cannot deal alone with such serious crimes. As noted in the “Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka,” section seven, article 75 “the commitment by the new Government to pursue accountability through a domestic process is commendable…But the unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready or equipped to conduct the ‘independent and credible investigation’ into the allegations contained in the OISL report, or ‘to hold accountable those responsible for such violations’, as requested by the Human Rights Council” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”).
Following this conclusion of the Sri Lankan government incapability of adequately managing reconciliation by itself, the report outlined its recommendation of a hybrid court in which international judges, prosecutors, lawyers, and investigators are integrated with local counterparts in a hybrid court. As outlined in Section eight, Article 88, “ The High Commissioner remains convinced that for accountability to be achieve 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 court, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism 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 politicization and highly polarized environment in Sri Lanka. OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)
Since Sri Lanka is not a party to the ICC’s Rome Statue, the Commissioner recommends that Sri Lanka ratify the Rome Statue as well as include the criminalization of war crimes, genocide, and crimes against humanity in its domestic legislation. The recommendation for such a hybrid court also calls for a significant support by the International community. The Commissioner asks for the “ United Nations system and [its] member states to provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards; set up a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process.” (Human Rights Council, “Report of the Office of the United Nations High commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka”)
Now there is no explicit information as to how this hybrid court will be set up. Its establishment will be in conjunction with the Sri Lankan government and will take special notice of the wants of the Tamil people.
In relation to the ICC, the report makes it clear that the hybrid court in Sri Lanka will not serve as a substitute for nor does it display any ineffectiveness or illegitimacy of the ICC. Rather the Commissioner emphasizes that the hybrid court is a necessary step in managing the Sri Lankan atrocities because Sri Lanka is not a state party to the Rome Statue. Moreover, the Commissioner makes clear his recommendation for Sri Lanka to ratify the Rome statute and become a state party. In this manner, the recommendation of a hybrid court in Sri Lanka in no way establishes a move by the UN away from the ICC but instead calls for the continued expansion of the court’s jurisdiction.
Written by Chinonye Alma Otuonye