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
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