AUGUST 2016

TJ INSIGHT

The passage of the Office on Missing Persons (OMP) Act through Parliament was as quick as it was controversial. The self-styled Joint Opposition’s antics at the parliamentary debate deprived them of voting against a Bill they had vociferously opposed, but deprived the country of a meaningful debate on its contents. The law was rushed through, and in the ensuing drama, a number of critical amendments that would have strengthened the Bill and were tabled by the government—on the urging of civil society and the Leader of the Opposition—were not moved formally by the Leader of the House.
As we have noted elsewhere, the OMP law is fundamentally sound, but without the critical amendments even the government was agreeable to entertain, the onus is on the OMP to craft rules and internal guidelines to remedy the remaining issues. In particular, the OMP must craft rules that clarify the scope of the protection of confidential information made available to it, so as to ensure that relatives are not deprived of information relating to the fate and whereabouts of their loved ones. Further, civil society organizations and activists must engage effectively with the OMP, exploiting the hard-won concessions on the OMP’s nexus to criminal justice, and urging the full use of the OMP’s extensive investigative and operational powers.

WHAT’S NEW

ARTICLES
• ‘Government’s Decisiveness Wins All Round Support’ by Jehan Perera on 08/15/2016.
• ‘Justice and Accountability for War Related Sexual Violence in Sri Lanka’ by Chulani Kodikara on 08/15/2016.
• ‘National Security Act to replace PTA: Tittawella’ by Zahrah Imtiaz on 09/03/2016.
• ‘Sri Lankan Justice Has No Place for ‘Accountable Amnesties’'’ by James Ross 08/22/2016.
• ‘The Office on Missing Persons: A New Chapter or Another Empty Promise?’ by Bhavani Fonseka on 08/18/2016.
ACTS
• Office On Missing Persons (Establishment, Administration And Discharge Of Functions) Act, No. 14 Of 2016.
• Right To Information Act, No. 12 Of 2016
PUBLICATIONS
• '"Fitting the Bill": Incorporating International Crimes into Sri Lankan Law’ by Eleanor Vermunt and Dr. Isabelle Lassee on 09/08/2016.
• ‘Frequently Asked Questions About The OMP’ by SACLS on 08/25/2016.
• ‘காணாமற்போனோர் அலுவலகம் (OMP) பற்றி அடிக்கடி கேட்கப்படும் கேள்விகள்’ by SACLS on 09/14/2016.
• ‘අතුරුදන්වූ තැනැත්තන් පිලිබඳ කාර්යාලය පිළිබඳව නිතර පැන නගින ගැටළු’ by SACLS on 09/14/2016.
PODCASTS
• ‘Is Transitional Justice Just for Developing Countries? -Sinhala Discussion’ by SACLS on 08/2016.

"FITTING THE BILL: INCORPORATING INTERNATIONAL CRIMES INTO SRI LANKAN LAW"

Eleanor Vermunt & Dr. Isabelle Lassée
Our recent paper “Fitting the Bill: Incorporating International Crimes into Sri Lankan Law” argues that no meaningful prosecution of atrocity crimes of the type alleged in Sri Lanka can take place without incorporating international crimes and corresponding modes of liability—including JCE, ordering, and command and superior responsibility—into Sri Lankan law.
It argues that domestic crimes are fundamentally ill suited to deal with wartime abuses and violations that occurred as a result of the conduct of hostilities. In fact, if ordinary crimes were to be applied, some conduct may be deemed criminal under Sri Lankan law even if it was in compliance with IHL. On the other hand, some egregious violations of IHL that evidenced an absolute disregard for civilian lives cannot be prosecuted because there are no corresponding offences under Sri Lankan law. Further, the prosecution of international crimes as ordinary crimes is deeply inadequate as it does not reflect the gravity of the criminal conduct, and risks trivializing atrocity crimes. Even if such conduct were to be prosecuted as domestic offences, such prosecutions would not serve a deterrent purpose or establish a narrative about the gravity of the crimes that were perpetrated.
In addition, prosecuting atrocity crimes as domestic crimes on the basis of the domestic modes of liability does not allow for the prosecution of those most responsible for these crimes. International law recognizes that those most responsible must be held accountable for atrocity crimes. These are crimes which are committed on a widespread and systematic basis or in the specific context of an armed conflict. In either case, those most responsible are those who had the means to design, carry out or facilitate the commission of international crimes. In doing so, they often abuse a position of authority or fail to fulfill the duties attached to their hierarchical position. The paper claims that unless international crimes and modes of liability are incorporated into Sri Lankan law, individuals most responsible for crimes cannot be effectively prosecuted. Instead, any prosecutions—if conducted under existing Sri Lankan law—would likely focus on those lower down the chain of command and on ‘trigger pullers’ who carried out orders received from their superiors. Prosecuting these individuals rather than those in positions of leadership will fail to meet victims’ demands for justice, undermine public support for trials and breed resentment among the fighting cadre of the armed forces.
It is critical that the incorporation of international crimes into Sri Lankan law be done with retroactive effect—as provided in Article 13(6) of Sri Lanka’s constitution and the ICCPR—so as to ensure that the new crimes and modes of liability cover conduct that took place prior to legislative change. Indeed, the government has explicitly committed to this course, co-sponsoring a resolution which called for:
The trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations [...] including during the period covered by the Lessons Learnt and Reconciliation Commission.
It is now essential that these promises are fulfilled, in a manner that would enable justice for victims, fair treatment of those accused, and the rule of law for all.

In This Issue