KAMALIKA PIERIS

The war cry” for war crimes came from the west which is smarting from the defeat of the LTTE in Eelam war IV. This   essay looks at the various measures used to bring the Sri Lanka army before a war crimes tribunal.

The International Criminal Court  is the   sole  international tribune for war crimes but it is not possible to shoot Sri Lanka straight in, because Sri Lanka   has not signed the Rome Statute. So the west turned to the UNHRC.                                                         

UN Human Rights Commission (UNHRC) and the Office of the High Commissioner for Human Rights (OHCHR) charged that war crimes had been committed in the Eelam war and that war tribunals were needed.  However, the UNHRC and OHCHR   do not have the authority to set up war tribunals. The only UN body that can send Sri Lanka   to an international war crimes tribunal is the UN Security Council. Security Council refused to do so when approached by USA in 2015.  

The only other way for the west to get   war crimes charges through, against Sri Lanka was to get it done internally. West has no way of instituting such an inquiry except by getting it done internally, said analysts, by getting the Sri Lanka government to set up a war crimes inquiry   as in Sierra Leone, Cambodia and Lebanon. Sri Lanka however, said bluntly that no war crimes were committed during the Eelam War and they were not going to hold a war crimes inquiry.

HYBRID COURTS

UNHRC then recommended that Sri Lanka cooperate voluntarily with the UN to set up a hybrid war crimes tribunal.  Hybrid courts are composed of both foreign and domestic judges, and the cases are conducted by local and foreign lawyers using both international and national law. 

Hybrid courts have functioned in Kosovo, Timor Leste, Bosnia and Herzegovina, Sierra Leone, Cambodia, Burundi, and Lebanon. Sri Lanka is not comparable to any of these countries, observed critics, contemptuously. The local judiciary could handle this matter, outside judges were not needed.  In any case, what is the significance of having foreign investigators and judges. Are the judgments pronounced by such foreign judges more valid”, than those pronounced by Sri Lankan judges, critics asked.

Hybrid courts have now lost credibility, said critics. The hybrid court in Cambodia  (2003)  delivered only three convictions after 14 years of effort  and the  costs  exceeded USD 200 million.  Hybrid courts  cost too much for the host country  alone.  They are generally funded, managed and run by Western countries and cater to Western interests.  

Hybrid courts undermined the domestic judicial system, wherever they have been established, observed  critics.  Evidence rules are lower than those in the  national legal systems and life sentences can be handed down on little evidence.

U.S. Senator Patrick Leahy, of the    US  Senate Judiciary Committee, speaking on Sri Lanka at the U.S. Senate, in June 9, 2015 strongly recommended a  hybrid  court.  Human Rights Watch,  campaigned  in 2016 for a hybrid court  where the majority of judges were foreign. HRW also wanted an international chief prosecutor.

There was support in Sri Lanka too for a Hybrid Court. The Tamil separatists wanted a   Hybrid court. They said the local judges are not to be trusted . Jehan Perera said the  Tamil civilians (victims”) are demanding an international or hybrid system of courts with  foreign judges as they  do not trust  local courts.  J.C. Weliamuna,  former head of Transparency International said   the Sri Lanka judiciary lacked the capacity to investigate system crimes.   Also  that the  international community could not be expected to have faith in our judiciary since we ourselves have no faith in it.  

Neville Ladduwahetty pointed out   that the local legal system is  perfectly capable of hearing war crimes cases. Cases involving military personnel can  also be investigated and tried within the military court system, as is the practice in many other countries, especially those whose forces are involved in active military duties.  

UNIVERSAL  JURISDICTION.

 The UNHCR Resolutions on Sri Lanka recommended Universal Jurisdiction. Zeid al Hussein,  UNHCHR asked for this twice in one UN  session.

The doctrine of universal jurisdiction allows the law courts of one country to  try persons  of another nationality, who have committed war crimes in another country, provided there is evidence or reasonable ground for the suspicion of guilt . Many countries do not permit their nationals to be extradited  for this purpose. Therefore some countries  allow Universal jurisdiction  in absentia.

 The Economist” reported in  2021 that the number of universal jurisdiction cases is rising. There have been 815 cases from 2008-2017. At least 16 countries have heard cases.  There were 71 completed cases,  mostly with convictions,  40% African, 25% Middle East, 20% Europe and 8%  Asia.

Ladduwahetty writing in 2021  pointed out that thought universal jurisdiction  is accepted  in the case of international armed conflicts (Protocol I),   there is  still no  decision on whether it applies to non-international conflicts as in Sri Lanka.

Sri Lanka takes the position that there is no possibility of universal jurisdiction in the Eelam war, because there is no case. No self-respecting court anywhere in the world will entertain these charges, said Sarath Weerasekera . Cases already filed under universal jurisdiction against a number of our commanders  failed, because, the allegations simply do not pass basic evidence standards. Also the accusers are politically motivated.

Allowing our war veterans to be tried in other countries for alleged crimes committed here is worse than being tried by an international criminal tribunal. An international criminal tribunal is a multilateral body whereas a single country is a different matter altogether, said Chandraprema.

SPECIAL PROSECUTOR

 It appears that in 2017   Prime Minister Ranil Wickremasinghe  has given a personal assurance to Ben Emmerson, UN Special Rapporteur on Human Rights and Countering Terrorism, that the Government would set up an Office of the Special Prosecutor to bring criminal charges against those involved  in  war crimes during the Eelam War. Emmerson reported this at a media conference. This information was also posted on a UN website and re-posted on Groundviews.

The wording of the written statement clearly presupposes that “serious atrocities” were committed by both sides, meaning by the Sri Lankan armed forces as well. Since the Tigers are either dead,  in jail, in self-exile, rehabilitated and released , this means the only target that’s left standing is Sri Lankan military, observed  Dayan Jayatilleke.   ( Continued in C11)