30 July 2018

Accountability for International Crimes Committed During the Civil War: The Interplay between the National and the International

Three years ago, the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka. By doing so, the government committed to setting up a judicial mechanism, amongst other things, to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. This mechanism would include involvement of international experts. The government’s commitment has been met with outright resistance by some in Sri Lanka, and the government itself has backtracked on its promise to have international participation in a judicial mechanism. President Sirisena and prominent members of the government have indicated that there will be no international participation in prosecutions because international actors should not interfere with Sri Lanka’s internal matters. Government ministers have also expressed their rejection of international involvement on the basis that Sri Lanka’s judiciary and legal system have the capacity to investigate and prosecute international crimes on their own.

Many of the mainstream arguments in Sri Lanka seem to pit domestic and international justice against one another and conclude that the latter is unnecessary and intrusive. However, is this kind of thinking actually necessary? A number of compelling arguments, discussed below, suggest that it is disingenuous to consider the domestic and international as always being antithetical to one another. This is because, contrary to popular belief, the domestic and the international can often work in partnership to promote the common goal of accountability, whilst also strengthening local justice. Therefore, it may be time for all Sri Lankans and political leaders to introspect and reconsider the possibility of a middle ground between localised and international forms of accountability for international crimes.

In Sri Lanka it is undoubtedly important that local actors drive a justice mechanism to try perpetrators on all sides for international crimes committed during the war. This would ensure that victims’ voices are heard and that Sri Lankans themselves own the process. Having said that, it is important not to underestimate the benefits that international involvement can bring to the accountability mechanism proposed under Resolution 30/1.

In this regard, the author identifies four positive contributions that international involvement and influence can have on promoting meaningful accountability in Sri Lanka.

First, prosecuting international crimes requires experienced and well-trained personnel who understand the significant differences between international and domestic crimes. Investigators, prosecutors, lawyers and judges must be able to investigate, prosecute and hand down judgments concerning crimes that are complex and large scale in nature, and which require the examination of a vast amount of evidence. To illustrate, investigators must be capable of investigating murder not as murder but murder as a crime against humanity. Legal commentators have highlighted that there is minimal experience and expertise in international criminal law in Sri Lanka. Thus, while Sri Lanka has a strong legal culture and a vast body of criminal justice jurisprudence, international involvement in the proposed judicial mechanism is absolutely necessary to fill the existing gaps in institutional knowledge, experience and expertise.

It should be noted that the Sri Lanka Judges Institute already negotiates with foreign institutions to provide local judges appropriate international law expertise and periodically sends local judicial officers on foreign trainings. (See Amended Corporate Plan of the Sri Lanka Judges Institute 2013 – 2017). This is a striking example of how the international is already acting in partnership with the local to further justice in Sri Lanka. Nevertheless, given the serious lack of institutional knowledge and experience in international criminal law in Sri Lanka, international involvement must go beyond capacity building trainings and take the form of foreign participation in the proposed judicial mechanism. Only this would ensure that there is a systematic sharing and cross fertilization of knowledge/experience between the local and foreign. It is of interest to note that Sri Lankan judges too have served as foreign judges in the Fijian judicial system in order to provide expertise in specialist areas of the law where there was inadequate knowledge and experience in Fiji. Therefore, taking a similar approach in order to bridge Sri Lanka’s own capacity deficits in international criminal law is a sensible course of action.

Second, international involvement can be useful because prosecuting international crimes committed by both sides requires a significant amount of resources. For instance, states need modern and secure documentation storage facilities, forensic and financial experts, effective witness protection programs, and outreach capacities so that victims and the public at large understand the work of a judicial mechanism. Expecting the Sri Lankan judicial system to have the resources to effectively deliver all these, without any international assistance, will place significant pressure on the country’s already burdened court structure. A judicial mechanism that has an international character will have a better chance of accessing adequate resources in order to effectively deliver justice.

Third, in addition to human capacity post conflict states often do not have the legal tools to prosecute international crimes. This is the case in Sri Lanka where egregious crimes of an international nature are not criminalized in the domestic legal framework, creating a vacuum. This vacuum can be filled if states look to international law for guidance. For example, India used the Rome Statute (an international legal document which criminalizes international crimes such as crimes against humanity and war crimes) for guidance when drafting its Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill of 2005. This Bill sought to address violent communal attacks that had taken place throughout India’s history. Thus, international law provided the language in which to understand and address impunity in India. In the same way, Sri Lanka could seek inspiration from international law when incorporating international crimes such as crimes against humanity and war crimes into its domestic law. Sri Lanka has already relied on the language of international law when drafting legislation like the ICCPR Act, the Convention against Torture Act and the Enforced Disappearances Act.

Finally, having an international presence when prosecuting international crimes may ensure that the judicial mechanism is not subject to political pressure and interference. In the past, members of Sri Lanka’s executive branch have sought to influence the decision making of local judges, in violation of Sri Lanka’s Constitution. Therefore, having international involvement will help alleviate this risk by insulating judges, prosecutors and investigators, including Sri Lankan ones, who will be part of the judicial mechanism.

In sum, the Sri Lankan government should not be weary of international involvement in the judicial mechanism that was promised to be set up under UN Human Rights Council Resolution 30/1. By having international involvement, the Sri Lankan government will be able to ensure that the judicial mechanism has the necessary expertise, resources and legal tools to deliver justice to victims of the war. In short, the judicial mechanism should be as domestic as possible and international as necessary.

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