“More Than a Domestic Mechanism”: Options for Hybrid Justice in Sri Lanka

For nearly three decades, the government of Sri Lanka fought with the Liberation Tigers of Tamil Eelam (LTTE), but after years of resistance, the new government has committed to launching a genuine transitional justice program to address, and redress, the grave international crimes committed by all sides during the conflict. This welcome about-face comes after intensive engagement between Sri Lanka and the UN Human Rights Council in Geneva over the past few years, which has been a major diplomatic initiative of the US mission there. In March 2014, because of the absence of a genuine domestic accountability process following the war, the Human Rights Council authorized a comprehensive investigation into international crimes committed in Sri Lanka between February 2002 (the signing of a ceasefire agreement) and November 2011 (the presentation of the results of the country’s own Lessons Learnt and Reconciliation Commission to the then-president). The report from the Human Rights Council’s investigation (known as the OHCHR Investigation in Sri Lanka, or OISL) exhaustively documented the commission of a wide range of international crimes and advanced a number of cogent transitional justice recommendations. Implementing the recommendations of the Council and the OISL, and adapting the lessons learned from other transitional states to the Sri Lankan context, offers Sri Lanka the opportunity to craft its own hybrid institution to redress crimes committed during the war, respond to the legitimate grievances of the victims, and ultimately lay the groundwork for a more peaceful and just society.

As a promising first step, and in response to the report, the government of Sri Lanka pledged to establish “mechanisms and measures to facilitate the right to know, the right to justice, reparations and guarantee[s] of non-recurrence.” It then co-sponsored a consensus resolution setting forth the building blocks of a comprehensive transitional justice program. In addition to political reforms focused on good governance, the devolution of power, security sector reform, the demilitarization of Tamil areas, and the rule of law, the future transitional justice process will reportedly involve four main pillars:

 

  • a truth and reconciliation commission;
  • a reparations process;
  • an office to investigate and resolve disappearances; and
  • an accountability mechanism.

 

Although this will be a Sri Lankan process, the resolution calls upon government actors to take advantage of “expert advice from those with relevant international and domestic experience” and to draw upon “international expertise, assistance and best practices.” In short, it strongly encourages a hybrid justice process. Specifically, the resolution indicates that the Council believes the process must involve a judicial mechanism with a special counsel to investigate alleged human rights abuses and international humanitarian law violations, and that there is a role within both the judicial mechanism and the special counsel’s office for “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”

The resolution thus embodies one of the key recommendations emerging from the Human Rights Council’s engagement in Sri Lanka: the imperative of establishing a hybrid tribunal of some sort to ensure an independent, impartial, and credible criminal process free of intimidation and political interference. In the words of the OISL report:

[F]or an accountability mechanism to succeed 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 courts, integrating international judges, prosecutors, lawyers and investigators, that 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 politicisation and highly polarised environment in Sri Lanka.

The report also called on Sri Lanka to establish “an ad hoc hybrid special court” with international international judges, prosecutors, lawyers, and investigators to try both war crimes and crimes against humanity. The report indicated that the court needs “its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme.” In joining the Council’s resolution, Sri Lanka has affirmed the importance of including foreign personnel — including judges, defense counsel, prosecutors, and investigators, potentially drawn from among the Commonwealth states — in any judicial mechanism.

Notwithstanding this pledge, government representatives, journalists, and others have since expressed reticence about inviting international interference in, or ceding too much control over, the administration of justice for crimes committed during the civil war. For example, Namal Rajapaksa, the former President’s son and a member of Parliament, described the proposal to create a hybrid court as “a complete insult to the entire legal system in this country.” In response, members of civil society have urged the government to stay the course, resist nationalist rhetoric rejecting any international involvement, adhere to its prior commitments, and work with the international community to ensure a genuine accountability process. In a statement, a coalition of civil society organizations argued that international involvement was critical to ensuring the internal and external legitimacy of any process, as well as to addressing the lack of capacity and experience in investigating and prosecuting complex international crimes.

The term “hybrid tribunal” has emerged as a particular flashpoint in this discourse, with commentators rejecting the concept out of hand as somehow inherently violative of Sri Lanka’s sovereignty. But as I’ve written elsewhere, there are multiple ways that domestic judicial processes can be “internationalized” without sacrificing judicial sovereignty over the penal process.

There are multi-fold rationales for internationalizing elements of the domestic judicial system in the wake of mass violence. Most importantly, the inclusion of international personnel serves to restore legitimacy and popular faith in domestic institutions that may have suffered a loss of confidence in the eyes of victim groups and perpetrators. As noted by UN High Commissioner for Human Rights Prince Zeid bin Ra’ad:

The levels of mistrust in State authorities and institutions by broad segments of Sri Lankan society should not be underestimated. … It is for this reason that the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, is so essential. A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises.

Indeed, many victims and human rights advocates see the judicial sector as having been complicit in the crimes of the state during the war, including through a biased application of the Prevention of Terrorism Act. In the wake of allegations like these and such rampant distrust, mixed institutions may be better equipped to advance the rule of law in keeping with international principles and to protect against over-zealous, one-sided, or unfair prosecutions.

In addition, transitional societies often must deal with an abundance of legal claims, including property and probate issues. As such, there are practical advantages to relying on a cadre of foreign experts with experience investigating and prosecuting cases involving international crimes (and defending against such charges). Integrating international experts may also allow these institutions to operate more economically because such personnel are often compensated by their home countries or from international coffers. These experts — who should be identified by way of a rigorous selection process that accounts for gender and ethnic parity and includes appointing personnel with experience in international criminal law, human rights, and gender — can often enable the domestic system to begin operations more quickly and to magnify its impact. In addition to being chosen for their expertise, individuals can be appointed who are known internationally for their professionalism, humility, adaptability, impartiality, and integrity. For judicial processes to contribute to reconciliation and to respond to felt needs for justice, it is vitally important that all stakeholders have faith in the integrity and fairness of both the process and the actors involved.

My paper also discusses various models for integrating international personnel into domestic justice processes, each with strengths and weaknesses. Historically, some of these involved the creation of a standalone domestic tribunal with dedicated staff, an autonomous appellate body, and bespoke rules (as in Bosnia-Herzegovina); other states embedded special chambers within, or sprinkled international personnel throughout, the extant domestic penal system. The latter models inevitably inherit or reflect elements of the underlying system, subject to occasional adjustments. By contrast, autonomous ad hoc tribunals with separate legal personalities have been the subject of greater structural and procedural innovation. The creation of a stand-alone institution also restricts international involvement to certain cases, although there may be benefits to having international personnel participate in a broader range of cases as part of the ordinary court system, including other complex or politically sensitive cases dealing with terrorism, corruption, or organized crime, as has been done in Kosovo. A less centralized approach avoids the creation of a two-tiered justice system, enables more interactions between local and international personnel, and may increase the impact of hybridity on the system as a whole. That said, a more integrated model may be less appealing in situations, like Sri Lanka, where there is resistance to admitting foreign personnel.

An early and under-explored example of embedding international expertise into a domestic process to enhance judicial capacity and procedural legitimacy is found in the 1981 trials of would-be coup leaders in the Gambia. (The best treatment of this history, and a first-hand account, is found in the memoir of International Criminal Tribunal for Rwanda’s Chief Prosecutor Hassan Jallow.) This effort traces its provenance to a coup staged by local actors that was rumored to be part of a Pan-African Marxist conspiracy spearheaded by Muammar Gaddafi — a theory that was later debunked. In response, the Gambia invoked a mutual defense pact with Senegal, whose troops helped to quickly oust the rebels. Thousands of people were detained in connection with the uprising. Fearing that key members of the government and judiciary had been somehow involved in the coup attempt, the Gambia established special tribunals staffed by lawyers and judges from the Commonwealth association of states to assess the legality of the detentions and prosecute those who were deemed most responsible. All told, 45 people were tried in four years.

Relying on foreign judges from a country’s diaspora or from partner states in regional or political organizations, such as the Commonwealth, offers a compromise when there is resistance to the inclusion of foreign personnel in certain posts. Some Commonwealth states, for example, grant reciprocal rights to other Commonwealth lawyers. This interoperability could prove to be useful in Sri Lanka. Recent research confirms that notwithstanding recent protests to the contrary, there is no constitutional or statutory impediment to creating or specialized chambers in Sri Lanka or staffing them with international experts. In particular, it has been observed that a fully functional hybrid court that “is entirely compatible with the existing constitution” can be crafted through legislative action backed by a simple majority in Parliament and minor regulatory changes.

The emergence of a new regime in Sri Lanka — and a new-found willingness to engage with the international community on transitional justice issues — offers all Sri Lankans the opportunity to put their country’s divisive history behind it and lay the foundation for a more inclusive, just, and prosperous society. How the country tackles the entrenched impunity and the imperative of ensuring some accountability for the commission of grave international crimes will be central to this process. Fortunately, Sri Lanka — unlike many post-conflict societies where judicial systems are destroyed or must be built from scratch — has the benefit of a well-developed legal system and skillful local bar. What is lacking is a shared confidence in the system and a uniform capacity to address complex international crimes. Once these two priorities are achieved, international involvement can be gradually phased out and the domestic system will be left stronger for it. International involvement will cement Sri Lanka’s new-found good standing and respectability within the community of nations, offer the opportunity for Sri Lanka to make its own contribution to the field of transitional justice, and provide opportunities to build a world-class judicial sector.

All that said, any trials must be part of a diversified transitional justice program focused not only on the deployment of prosecutorial tools but also on truth-telling exercises and the formation of an accurate collective memory; the rehabilitation and reparation of victims; the promotion of reconciliation among communities; an accounting for missing persons; and the development of new institutions and policies. By launching a genuine transitional process, Sri Lanka will make a demonstrable international commitment to the rule of law and to universal principles of justice. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).