MARCH 2018

 

TJ INSIGHTS

While the month of March has seen a flurry of activity in the field of Transitional Justice, the most significant of which was the adoption of the Enforced Disappearance Bill by Parliament, the government’s backtracking on the criminal accountability front has been brought into sharp focus at the 37th UNHRC session. Members of the government have on several occasions articulated their opposition to an accountability mechanism that would involve the active participation of foreign judges. However, for the first time this month, the Sri Lankan delegation explicitly communicated this position to the UNHRC with both Foreign Minister Tilak Marapane and delegation member Minister Faiszer Musthapha stating that the accountability mechanism under resolution 30/1 would be a purely domestic one. This is ostensibly on the basis that active foreign participation in such a mechanism would be in violation of the Sri Lankan Constitution. SACLS however addressed this argument as far back as April 2015 when it proposed a hybrid court model for Sri Lanka.
While the government’s position is not in itself surprising, its unequivocal formulation before the UNHRC is a matter of serious concern. It is therefore urgent that the all relevant stakeholders hold Sri Lanka to its original commitments under resolution 30/1. During the debate on Sri Lanka, many countries criticized the government’s slow progress on Transitional Justice and called for the full implementation of resolution 30/1. This position must be echoed more forcefully in other forums with more explicit references to the setting up of the Special Court and Special Prosecutor’s Office with foreign participation. The strongly worded statement by UN Deputy High Commissioner for Human Rights, Kate Gilmore, which called on the Sri Lankan government to swiftly establish a Special Court or face universal jurisdiction litigation, is an example in this respect.

 

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RECURRING ETHNIC VIOLENCE: THE IMPORTANCE OF ACCOUNTABILITY FOR INTERNATIONAL CRIMES

March saw a spate of violent attacks against Sri Lanka’s Muslim minority in Kandy. In late February, a Sinhala-Buddhist man was attacked by three Muslim men in a traffic dispute, with the Buddhist man succumbing to his injuries several days later. The victim’s funeral was attended by Bodu Bala Sena’s (BBS) Secretary General, Galagodaaththe Gnanasara Thera, an extremist monk who has been accused of inciting hatred and violence against the Muslim population. Approximately 24 hours later, violent mobs began targeting Muslim homes, businesses and mosques in retaliation. Within the span of around a week, 19 incidents of attacks on mosques, and 423 incidents of attacks on predominantly Muslim homes and businesses were reported to the police in Kandy. One Muslim man was killed after being trapped in a building that was set on fire by rioters, and several Muslims and non-Muslims were injured. These attacks were carried out by violent mobs who stoned, burnt or otherwise targeted Muslim properties and places of worship.

While commentators have underlined the similarities between the recent acts of violence and the 1983 anti-Tamil pogrom, the possible qualification of the most recent anti-Muslim violence under international criminal law has not been explored. Owing to the discriminatory nature and gravity of the anti-Muslim violence coupled with the systematicity of the attack, these acts could potentially amount to crimes against humanity of persecution. In fact, it is widely acknowledged that Muslim owned and occupied property, as well as mosques, were specifically targeted and destroyed, likely suggesting discriminatory intent. While these acts were not widespread, in the sense that they only occurred in a small part of the country and the number of victims is relatively small, they may have constituted a “non-accidental repetition of similar criminal conduct on a regular basis” and hence may have been systematic. Interestingly, courts have found systematicity in acts that have occurred within a very short timeframe and within a single municipality. Elements that surfaced in the media here, here and here suggest a degree of planning and coordination that could justify the characterisation of the attack on the Muslim population in Kandy as systematic.

If the Sri Lankan government is to effectively address recurring patterns of serious crimes including against ethnic or religious minorities, it must put an end to impunity for international crimes committed in the past. As SACLS has argued, this requires the incorporation of international crimes and modes of responsibility into Sri Lanka’s national legal framework. While the authorities have arrested some who allegedly participated in, and/or instigated the events in Kandy, prosecuting these individuals for ordinary crimes would be insufficient, if these amount to international crimes. This approach would fail to capture the gravity of crimes that could have been systematically planned and carried out against a minority. Recognizing the gravity of such conduct is a first step towards addressing the well-entrenched culture of impunity that has led to the recurrence of atrocity crimes in Sri Lanka.

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