06 May 2015

A Hybrid Court - Ideas for Sri Lanka

Written by Rhadeena de Alwis and Niran Anketell

Part I - A hybrid court for Sri Lanka: An idea whose time has come

The last ten years have witnessed the proliferation of a number of internationally assisted courts – also called hybrid courts – throughout the globe, with varying degrees of success. Many more countries are in the process of considering the establishment of similar courts as well. Hybrid courts combine the relative advantages of domestic as well as international justice, while minimizing the drawbacks of both. The use of professional and experienced international judges and lawyers has helped dramatically raise the credibility and independence of hybrid courts. Yet, since hybrid courts function within the legal system of a given country, they have significantly better compliance and implementation records than international courts, and help create national ownership over the important work of punishing international crimes.

More than five years since the end of the war, the imperative to credibly deal with the past in Sri Lanka is stronger than ever. Most fundamentally, the new government's efforts to promote good governance and the rule of law require a serious approach to dealing with credible allegations of atrocious conduct by both sides, especially during the last stages of the war. In particular, unless state violence is punished and curbed, the wounds of the war will continue to fester while new ones are created. Moreover, the impunity afforded to state violence in the past has led to a military and security apparatus that enjoys near invincibility with respect to its actions. Sri Lanka therefore needs to break dramatically with the past, and a process of attributing criminal liability for the most egregious crimes is a necessary starting point.

While some international observers believe the new government should be generously afforded the time and space to develop its own mechanisms, the reality is that Sri Lanka's record of domestic accountability throughout its post-independence history has been characterized by a lack of political will, lack of capacity, political interference and chronic failure. To expect victims to put their trust in familiar domestic mechanisms that have failed time and again is unfair and unwise.

Yet, the actualization of international justice with respect to Sri Lanka appears fraught and unlikely in the short to medium term. Further, foreign and purely international courts – except in the case of ad hoc tribunals established by the Security Council in respect of the former Yugoslavia and Rwanda – prosecute, at best, only a handful of perpetrators from each situation. In the vast majority of cases, foreign and international justice takes decades to achieve, with no assurances of success. It is an idea whose time has come. Generating the political will to establish a hybrid court in Sri Lanka will not be easy. But, as this paper argues, a fully functional hybrid court could be structured within Sri Lanka's legal system in a way that is entirely compatible with the existing constitution. A legislative package passed by a simple majority in Parliament along with incidental regulatory changes could establish a uniquely Sri Lankan hybrid model. Further, there appears to be some support from influential sections of the new government for some form of international assistance for domestic accountability processes. At least two senior Ministers, including the Foreign Minister, have publicly acknowledged the possibility of international judges and technical assistance for domestic trials in Sri Lanka.1 To be clear, a hybrid court will not be a panacea to Sri Lanka's deep Transitional Justice needs. But, if handled with care and professionalism, it could help break with the past and help herald a new era of accountability and human rights protection; essential components in Sri Lanka's quest for reconciliation.

Part II - Internationally Assisted Courts

The last decade has witnessed the proliferation of internationally assisted courts in a variety of continents and contexts. These courts now offer a viable alternative to purely international and domestic forms of justice. This Part briefly examines the establishment, applicable law and hybrid structure of five of the best known internationally assisted courts: the Special Court for Sierra Leone; the Extraordinary Chambers in the Courts of Cambodia; the Special Tribunal for Lebanon; the War Crimes Chamber of Bosnia and Herzegovina; and the Special Panels in East Timor. The structures, institutions and modalities adopted by these courts should inform the choices made in Sri Lanka with respect to accountability for past crimes.

2.1 The definition and purpose of internationally assisted courts

Internationally assisted courts (also referred to as hybrid courts) are specialized courts that are established in certain instances for the adjudication of criminal liability following the commission of international crimes. These courts are referred to as 'hybrid' because 'both the institutional apparatus and the applicable law consist of a blend of the international and the domestic'.2

Hybrid courts are typically characterized by the following features: hybridity in the personnel involved in the trials; the application of international criminal law exclusively or alongside domestic offences; the presence of specialized 'trial' and 'appeal' chambers; and limited temporal, personal and material jurisdiction. Further, they are typically ad hoc courts established to function within a limited time frame and incorporated into the domestic legal framework through legislation or ratification. They are also almost always housed within the country in which the alleged international crimes took place.

2.2 Establishment and Applicable Law
2.2.1 Establishment

Hybrid courts have been established by a variety of means, and have incorporated domestic and international participation at varied levels.

The Special Court for Sierra Leone (SCSL) was established under a joint agreement between the United Nations (UN) and the Government of Sierra Leone,3 and is thus a treaty-based criminal court. The Extraordinary Chambers in the Courts of Cambodia (ECCC) was similarly based on an agreement between the UN and the Government of Cambodia, but the founding document of the court was subsequently enacted by the Cambodian legislature.4 Other hybrid courts have been established through purely international processes. The Special Tribunal for Lebanon (STL) was created by the UN Security Council Resolution 1757, while the War Crimes Chamber of Bosnia and Herzegovina (WCC) was created by way of an agreement between the Office of the High Representative (OHR) – an international functionary who exercised real executive power in terms of the Dayton Peace Accord – and the International Criminal Tribunal for the Former Yugoslavia (ICTY).5 UN mechanisms were also responsible for the establishment of the Special Panels for the District Court of Dili, which was established by the United Nations Temporary Authority in East Timor (UNTAET).6

2.2.2 Applicable Law

The laws applicable to the hybrid courts were in some instances defined by special statutes established for the court; in some by UN mechanisms which laid out the applicable legal framework; and in others, purely by existing or revised domestic law. Further, these courts often apply a mix of international and domestic criminal law, though only domestic law was applied in some cases like Lebanon and Bosnia.

The Special Court for Sierra Leone applied its own Statute and was granted the jurisdiction to prosecute crimes committed under international humanitarian law and certain crimes under the laws of Sierra Leone, committed in the territory of Sierra Leone since 30 November 1996.7 Similarly, the Law on Establishment of the Extraordinary Chambers in the Courts of Cambodia sought to apply international crimes such as genocide, crimes against humanity and war crimes as well as certain domestic crimes to the period in which the Khmer Rouge controlled Cambodia between 1975 and 1979.8 The Special Tribunal for Lebanon also applied its own Statute,9 but Article 2 of the statute defines the applicable law by reference to the provisions of the Lebanese Criminal Code regarding acts of terrorism, crimes and offences against life and personal integrity, illicit association and failure to report crimes and offences. It also incorporates provisions from Lebanese law with regard to increasing the penalties for sedition, civil war and interfaith struggle.11 In Bosnia and Herzegovina, the War Crimes Chamber applies the 2003 Criminal Code of BiH and the 2006 Criminal Procedure Code, and since 2009 has applied the 1976 Criminal Code of the former Socialist Federal Republic of Yugoslavia (SFRY) in some cases.12 In East Timor, UNTAET Regulations defined the legal framework applicable to the Special Panels.13 The UNTAET Regulation was based on the Statute of the International Criminal Court as regards the definition of international crimes,14 and domestic Indonesian laws prior to 25 October 1999 were enforceable to the extent that they did not contravene international human rights standards.15

2.3 Personnel

The composition of the key positions within these hybrid courts – judges, prosecutors, investigators, defence lawyers and administrators – are politically sensitive. Thus, the negotiations leading to the establishment of these courts – typically between a government and the United Nations – have focused heavily on the ratio between domestic and international personnel, in particular with respect to judges and prosecutors. Thus, the final outcome often reflects not merely the needs of the particular country, but political sensitivities on the ground and relative bargaining positions of the international community and the national government.

2.3.1 Judges

The Special Court for Sierra Leone comprised 8 to 11 independent judges, who would be assigned to the Trial and Appeal Chambers. The Trial Chamber was composed of three judges – one to be appointed by the Government of Sierra Leone, and two to be appointed by the Secretary General of the UN. Similarly of the five judges in the Appeal Chamber, two were to be appointed by Sierra Leone, and three by the UN.16

By contrast, the Extraordinary Chambers in the Courts of Cambodia comprised a majority of national judges. The Pre- Trial and Trial Chamber consisted of five judges, three national (one of who was the President) and two international,17 while the Supreme Court Chamber comprised of seven judges, four national (one of who was President) and three international.18 However, to prevent decisions splitting down nationalinternational lines, all decisions in any of the Chambers had to be taken in accordance with the 'super majority' principle. This requires that decisions be taken on a 'simple majority plus one' basis.19

The Special Tribunal for Lebanon had 11 to 14 judges to be appointed to the Pre-Trial Chamber, the Trial Chamber and the Appeal Chamber.20 The balance of interests between the Government and the international community was evidenced in the structure of the appointment of judges. In instances of a Pre- Trial Chamber, a single international judge presided.21 The Trial Chamber usually comprised three judges, with one domestic judge and two international judges.22 The Appeal Chamber comprised five judges, two domestic and three international.23

The War Crimes Chamber of Bosnia and Herzegovina has four trial panels of three judges each, while the Appellate Chamber sits as a full bench. However the composition of judges in the WCC underwent a change over time. At the commencement in 2005, each panel comprised two international judges and one national judge. In 2008 however, the composition was reversed to include two national judges and one international judge.24 The selection of national judges followed a similar process to the ordinary procedure, whereby the High Judicial and Prosecutorial Council (HJPC) appointed judges who were then assigned to specific Divisions (including the WCC) by the President of the State Court.25 The international judges were at first appointed by the Office of the High Representative,26 but since July 2006, the HJPC also appointed the international judges through a competitive process.27 These international judges were required to have eight years of international criminal law experience.28 Thus, the WCC model represents the incremental localization of the court, given knowledge transfers from the international to the domestic and increase in domestic capacity over time.

The Special Panels in East Timor also had a majority of international judges, with the District Court of Dili and the Court of Appeal comprising two international judges and one domestic judge.29 In cases of special importance, a panel of five judges would preside with three international judges and two domestic judges.30

2.3.2 Prosecutor

The unbiased and effective functioning of many of these hybrid courts depends upon the independence and competence of prosecutors. As such, a significant number of hybrid courts make provision for experienced and independent international prosecutors with domestic counterparts.

In the case of Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon, the UN Secretary General appointed the Prosecutor.31 The Statutes of the SCSL and the STL mandated that the Deputy Prosecutor be a local.32 In contrast, the Extraordinary Chambers in the Courts of Cambodia used a model of co-prosecution, with a Cambodian prosecutor and an international prosecutor working simultaneously. All subordinate prosecutorial positions in the court featured a Cambodian counterpart to an international appointee.33

The Prosecution Unit of the War Crimes Chamber in BiH also employed international staff, though the Chief Prosecutor and the heads of the six prosecution teams were required to be BiH nationals.

In East Timor, the UNTAET created the Public Prosecution Service for East Timor.34 Here, the Office of the General Prosecutor was divided into two departments under Deputy General Prosecutors – one of whom dealt with ordinary crimes, while the other dealt with serious crimes including prosecutions in the Special Panels.35 A staff of East Timorese and international experts supported the Deputy General Prosecutor for Serious Crimes, through the Serious Crimes Unit.36

2.3.3 Investigators

The investigators supporting the prosecution in hybrid courts have either functioned as an autonomous unit, or been housed within the prosecution. For instance, the investigation unit was a part of the Office of the Prosecutor in the Special Court for Sierra Leone and Special Tribunal for Lebanon, and included domestic as well as international investigators.37 In fact, the investigative unit of the SCSL has been recognized as 'an exemplary model of national- international teamwork'.38 In Lebanon, investigators, forensic experts and analysts, including former and serving Police Officers with experience in the relevant area, assist the Prosecutor.39

In contrast, the Extraordinary Chambers in the Courts of Cambodia, influenced by Cambodia's French colonial past, used investigative judges with one Cambodian and one international co-investigating judge leading the Office of the Co-Investigating Judges.40

In the case of War Crimes Chamber of BiH and the East Timor Special Panels, the investigative units were specialized domestic bodies empowered to deal with the prosecution of international crimes. The investigators of the SDWC of BiH belong to the State Investigation and Protection Agency (SIPA). Within the SIPA, the body authorized to conduct investigations into war crimes was the War Crimes Investigation Centre and some SIPA investigators were assigned exclusively to the prosecution.41 In East Timor, the Deputy General Prosecutor for Serious Crimes (DGPSC) – assisted by the Special Crimes Unit – was given exclusive authority over the investigation of serious crimes for the purpose of prosecution, and included international as well as domestic investigators.42

2.3.4 Defence

The provision of competent defence lawyers to persons accused of grave crimes is critical to the provision of due process and a fair trial. Thus, international best practice requires that legal representation is provided to all accused, including through legal aid for indigent defendants. A number of hybrid courts have established defence units to coordinate and administer the provision of legal support to defendants.

In the Special Court for Sierra Leone, a Defence Office was established which comprised a Defence Advisor and three Duty Counsel headed by the Principle Defender, together with administrative support.43 Upon the arrest of an individual, the Defence Office provides legal advice through a duty counsel, and the Defendant could subsequently retain his own counsel.44

The Extraordinary Chambers in the Courts of Cambodia features a Defence Support Section which is responsible for providing indigent accused with a list of lawyers who may defend them, as well as legal and administrative support to lawyers assigned to work on cases, including the payment of fees.45 Defendants have the option of retaining one Cambodian lawyer and one international lawyer to lead his/her defence team, which are staffed also by Cambodian and international lawyers, investigators and analysts.

The Defence Office in the Special Tribunal for Lebanon is an independent organ court and engages inter alia in developing a list of counsel and assigning counsel to indigent accused and those tried in absentia, provision of legal research, advice and operational support to defence counsel, and monitoring the activities of the defence counsel to better ensure the protection of the rights of the accused.46 The UN Secretary General and the President of the Special Tribunal appoint the Head of the Defence Office.47 Defendants are entitled to be represented by international lawyers.

With respect to the War Crimes Chamber in BiH, the Registry established a Criminal Defence Support Section (Odsjek Krivicne Odbrane or OKO) but this subsequently evolved into an independent institution.48 Initially, an international director and deputy were in charge of OKO, but by May 2007, the institution was nationalized.49

In East Timor, the UNTAET did not provide for the establishment of a public defenders' office in respect of the Special Panels,50 and the office of the public defender was funded by way of the general budget of East Timor. 51 Resultantly a few NGO funded international lawyers and Timorese public defenders were assigned for the purpose of representing the accused. As the Serious Crimes Unit was staffed by a majority of international prosecutors, the inequality of experience between the prosecution and the defence resulted in no witnesses being called on behalf of the defence in the initial 14 trials before the Special Panels.52 The United Nations Mission of Support in East Timor (UNMISET) eventually established a separate Defence Lawyers Unit (DLU),53 which employed only international staff.54

2.3.5 Victims’ Support

The most recent hybrid tribunals have gone to significant lengths, not merely to protect witnesses and victims from harassment and intimidation, but also support them through the trial process by providing a range of services to them, including legal representation.

The Extraordinary Chambers in the Courts of Cambodia is particularly notable in this regard. Victims are permitted to submit complaints to the Co-Prosecutors, who are to take the interests of Victims into account when considering whether to initiate prosecutions. Victims may also participate as Civil Parties in proceedings. In this capacity, they are recognized as parties and participate fully in the proceedings, and are allowed to seek collective and moral reparations. The court structure includes a Victims' Support Section which undertakes a number of functions. It informs victims about their rights, and assists them in filing complaints to the Co-Prosecutors and make civil party applications. This entails the provision of assistance in obtaining legal advice or a lawyer as well as supporting retained legal representatives. The Section also maintains contact with victims and their lawyers regarding the status of their complaints and applications, and keeps them updated regarding developments in individual cases. It also carries out outreach programmes. Finally, the Section monitors the security of victims participating in the proceedings, provides security and protective measures, and offers other services including the provision of psychosocial support.55

The registries in the Special Court for Sierra Leone and the Special Tribunal for Lebanon also make support available to victims through Victims and Witnesses Units. These units provide short-term and long-term support and protection to any individual called as a witness by the Prosecution or the Defence. In terms of Article 16 of the SCSL Statute, the Unit is to provide 'protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses.' Similarly, the Victims Unit in the STL is responsible for implementing the necessary measures to protect the safety, physical and psychological wellbeing, dignity, and privacy of victims and witnesses, and others at risk on account of testimony, or their interaction with the Tribunal.56 The Witness Support Section of the War Crimes Chamber in BiH also provides witness protection and psychosocial services.57

In contrast, in East Timor, owing to a lack of funding, there was never an effective witness and victim protection program. As a consequence, a significant number of cases of witness intimidation were recorded with respect to witnesses involved with the Special Panels.58

Conclusion

Agrowing number of countries that face legacies of serious and systematic international crimes are increasingly resorting to hybrid courts to prosecute those crimes. However, there is no singular model, either for the establishment of a hybrid court, or for the way in which domestic and international personnel are featured in the different functions of the court. The specificities of each country call for diverse responses in the design and implementation of hybrid courts. It is critical, therefore, that the domestic constitutional, legal and regulatory order within a country is fully understood by those advocating for or designing a hybrid court.

Part III - Overview of the Criminal Justice System in Sri Lanka

Sri Lanka has a hierarchical system of common law courts that largely reflects the structures established during the colonial encounter. The relationships between these courts, their respective jurisdictional limits and the system of appeals are regulated by the constitution, and by legislation. While the Constitution – Sri Lanka's supreme law – delineates the jurisdiction of the higher courts and lays down certain rules with respect to the appointment of judges, other legislative provisions detail the ways in which jurisdiction may be exercised and flesh out modalities by which the courts are to function and operate.

Part IV of this paper contends that a fully functional and internationally assisted specialized court structure could be established in Sri Lanka within the existing constitutional structure, and would only require a comprehensive legislative package complemented by specific regulatory changes to subordinate legislation by executive functionaries.

This part deals with the existing legal structure pertaining to criminal justice, with a view to identifying how best an internationally assisted court may be introduced within Sri Lanka.

3.1 Hierarchy of the system of criminal courts

Sri Lanka's court structure with regard to criminal matters consists of the Supreme Court, the Court of Appeal, High Courts and Magistrate's Courts.

The Constitution declares that all courts, tribunals and other institutions other than the Supreme Court which existed at the time of the promulgation of the Second Republic Constitution in 1978 are deemed to be created and established by Parliament.59 Thus, Parliament may replace, abolish or amend the powers, duties, jurisdiction and procedure of such courts, tribunals and institutions.60 Further, Article 105 (1) (c) provides that Parliament may, from time to time, ordain and establish other courts of first instance, tribunals or other institutions.

The Magistrate's Court and the High Court are the only courts with primary jurisdiction (also known as 'original jurisdiction') in criminal cases.61 Appeals from these courts of first instance can be made to the Court of Appeal, and in some circumstances, to the Supreme Court. The Supreme Court exercises final appellate jurisdiction in all matters.

3.1.1 The Magistrate’s Court

The Magistrate's Court, established under Section 5 of the Judicature Act No. 2 of 1978 (as amended), has exclusive original jurisdiction over all criminal cases that involve fines up to Rs. 1500 or prison sentences of up to two years.62 Trials are conducted without a jury, and a Magistrate delivers the verdict and the sentence.

3.1.2 The High Court

The High Court is the highest Court of first instance for criminal matters,63 and exercises original jurisdiction for all matters involving a fine of over Rs. 1500 or imprisonment for a period longer than two years.

The law provides for the option of a trial by jury in cases of more serious offences before the High Court,64 including crimes against the State, murder, culpable homicide, attempted murder and rape. In cases where the law does not prescribe trial by jury or where the option is not availed, a judge delivers the verdict and passes sentence at the conclusion of the hearing.65

An appeal from the conviction or judgment of the High Court to the Court of Appeal on any matter of law or fact may be presented by way of a petition of appeal or by application for leave to appeal.66 Where the Provincial High Court exercises original criminal jurisdiction under Article 154P(3)(a) or revisionary jurisdiction under Article 154P(3)(b) of the Constitution, such appeal lies to the Court of Appeal.67 An appeal from a final order, judgment, degree or sentence of a Provincial High Court in the exercise of its appellate jurisdiction shall lie to the Supreme Court, with the leave to appeal of the High Court or the Supreme Court in its discretion.68

3.1.3 Trial at Bar

A Trial at Bar is held before three judges of the High Court without a jury.69

This system of trial is applicable for the trial of any person for any offence punishable under sections 114,70 11571 or 11672 of the Penal Code; where the Chief Justice is of the opinion that owing to the nature of the offence or the circumstances of and relating to the commission of the offence, the interests of justice require it;73 or at the discretion of the Chief Justice for an offence committed under the Prevention of Terrorism Act.74

An appeal from any judgment, sentence or order pronounced at a Trial at Bar, shall lie to the Supreme Court.75 A bench of not less than five Judges of the Supreme Court shall hear such appeal.76

3.1.4 The Court of Appeal

Article 138 of the Constitution provides that the Court of Appeal has appellate jurisdiction in criminal cases. This does not mean, however, that all criminal appeals must necessarily be heard by the Court of Appeal. Numerous authorities have held that Article 138 is only an enabling provision and that the right to avail of that jurisdiction is governed by legislation.77 Thus, there is no constitutional right to appeal to the Court of Appeal. Any provision for such an appeal may be provided – and by necessary implication, be removed – by legislation.

An appeal shall lie to the Supreme Court from any judgment or order of the Court of Appeal in any appeal from the High Court or the Magistrate's Court, if the Court of Appeal or the Supreme Court in its discretion, grants leave to appeal.78

3.1.5 The Supreme Court

The Supreme Court has jurisdiction to exercise final appellate jurisdiction in respect of all matters in fact or law.79 However, in terms of Article 128 of the Constitution, a constitutional right to appeal to the Supreme Court only exists with respect to appeals from the Court of Appeal which involve a substantial question of law.

3.2 Revision and Appeal

The Court of Appeal is vested with 'sole and exclusive cognizance' to, inter alia, exercise revisionary jurisdiction on matters decided before a Court of first instance, by correcting 'all errors in fact or in law' committed by such Courts and to make orders in the 'interests of justice'.80 The Provincial High Court is also vested with the authority to exercise revisionary jurisdiction in respect of convictions, sentences and orders entered or imposed by Magistrate's Courts within the Province.81 Accordingly, both the Court of Appeal and the Provincial High Court are vested with concurrent jurisdiction in this regard.82

Revision is a constitutional remedy made available to litigants through the Court of Appeal, which is granted at the discretion of the Court under special circumstances, and cannot be invoked as a matter of right.83 The objective of the remedy is to ensure the 'correct administration of justice and the correction of errors' that might have occurred.84 In an application for revision, the party 'has to apply for the discretion of Court to intervene and set right the error occurring in the judgment or order of the lower Court.85 In such a situation the Court will only consider the legality and procedural correctness of the judgment or order.86

In matters of revision, the practice of the Court of Appeal is to refrain from the exercise of its powers in instances where an alternate remedy (such as an appeal) is available to the applicant.87 However, it is now well-established law that the Court will exercise its power of revision even where an alternate remedy is available, only if the applicant can prove the existence of 'exceptional circumstances' which make such revision necessary.888

By contrast, jurisdiction to entertain an appeal must be 'expressly created and granted by statute' and is thus a statutory right.89 If a party is dissatisfied with the judgment or order of a lower Court, they may file a petition of appeal where permitted by law to do so. In such instances the appellate court would consider the 'legality and reasonableness of the judgment or order'.90

The conditions on which an appellate court may entertain an appeal are regulated by statute, and the grounds upon which the Court is permitted to grant relief are specified in the statute and known as 'permitted grounds for appeal'.91 In certain instances, the right of appeal is conditional and depends upon the Court granting leave to appeal (where it is stipulated by statute).92 Moreover, the Supreme Court has discretionary authority to grant special leave to appeal in instances where the Court of Appeal has refused to grant leave to appeal to the Supreme Court or where the Supreme Court believes the matter should be reviewed.93 Further, the Supreme Court is bound to grant special leave in all matters where it is satisfied that the question to be decided is of 'public or general importance'.94

3.3 Personnel
3.3.1 Judges

The Chief Justice, the President of the Court of Appeal, and every other Judge of the Supreme Court and Court of Appeal are appointed by the President of the Republic, upon approval by the Constitutional Council which in turn shall be upon a recommendation to the Council by the President.95

The Judges of the High Court shall on the recommendation of the Judicial Service Commission,96 be appointed by the President, consequent to a consultation with the Attorney General.97 Furthermore, where the Minister of Justice represents to the President that the number of judges of the High Court in a particular zone should temporarily be increased, the President may appoint one or more Commissioners of the High Court.98 All such Commissioners are vested with all the rights, powers, privileges and immunities of a Judge of the High Court.99

The power to formulated schemes of recruitment and appoint Magistrates lies with the Judicial Service Commission.100

The Judicial Service Commission comprises the Chief Justice and two other judges of the Supreme Court appointed by the President subject to the approval of the Constitutional Council.101

3.3.2 Prosecutors

Section 393 of the Criminal Procedure Code empowers the Attorney General to forward an indictment directly to the High Court. Once a trial commences, the Prosecution may only be conducted by the Attorney General, Solicitor-General, State Counsel or an Attorney-at-Law generally or specifically authorized by the Attorney General for that particular purpose.102

Further, the Attorney General, in terms of section 393 of the Code of Criminal Procedure is empowered to participate in and effectively control investigations. He thus has the right, in terms of the law, to: give advice, whether on application or on his own initiative to State Departments, public officers, officers of the police and officers in corporations in any criminal matter of importance or difficulty; and summon any officer of the State or of a corporation or of the police to attend his office with any books or documents and there interview him for the purpose of initiating or prosecuting any criminal proceeding, or giving advice in any criminal matter of importance or difficulty. Further, the Superintendent or Assistant Superintendent of Police in charge of a division is bound to provide a comprehensive report to the Attorney- General of every offence committed within his area where preliminary investigation is imperative; or for the institution of proceedings; or where a request has been made by the Attorney-General; or in other circumstances also specified in the Code.

3.3.3 Defence Attorneys

The Supreme Court enrolls persons of 'good repute and of competent knowledge and ability' as Attorneys-at-Law.103 These Attorneys-at-Law are entitled to 'appear, plead or act in every Court or other institution established by law for the administration of justice'.104 Every person accused before any criminal court is entitled as of right, to be defended by an Attorney-at-Law.105

3.3.4 Investigators

The law on the investigation of offences and the powers of investigative officers is laid out in Part V, Chapter XI of the Code of Criminal Procedure. The Chapter refers to the powers of investigation given to both Police Officers and Inquirers.

The powers and duties of a police officer or Inquirer includes, but is not limited to, the examination of witnesses,106 the power to arrest or to direct arrest107 and the taking of finger impressions or any specimens of blood etc.108 The Magistrate is further required to assist in the conduct of the investigation.109 Further, any Police Officer, not below the rank of Assistant Superintendent of Police, may take over an investigation or direct which police officers should undertake the conduct of the investigation.110

Conclusion

Given Sri Lanka's judicial structure, there are two identifiable options available with respect to establishing a hybrid court: to structure a hybrid court within the existing system of criminal courts, or establish a discrete specialized court. These questions will be considered in the following section.

Part IV - Structuring Sri Lankan Criminal Law and Procedure to Facilitate Internationally Supported Trials

For the reasons detailed in Part I, the effective prosecution of international crimes requires a dramatic break with the past: including through the incorporation of international crimes and modes of liability into Sri Lankan law; and the inclusion of competent international personnel within the criminal justice system dealing with those crimes.

To do this, Sri Lanka must consider a wide variety of options derived from hybrid court models previously implemented in other countries, or experiment with models devised and structured at home. That process of devising and implementing prosecution processes will require deep consultation with victims and civil society, a point repeatedly reiterated by international and domestic stakeholders.

This Part contends that a functioning hybrid court could be instituted within the country through a comprehensive legislative package which could be passed with a simple majority in Parliament. In other words, the creation of a hybrid court on the lines recommended in this Part would not entail any inconsistency with the existing provisions of the Constitution. Instead, it would be fully compatible with it, and would thus not require a two-thirds special majority in Parliament.

4.1 Establishment and Applicable Law
4.1.1 Establishment

As discussed in Part III, since Article 105 (1) (c) of the Constitution provides that Parliament may ordain and establish courts of first instance, tribunals or other institutions; the establishment and empowerment of a court or tribunal is clearly within the purview of the legislature.

Thus, the Government of Sri Lanka could, acting on its own, or by special agreement with the international community, create a court or tribunal empowered with the specific task of inquiring and adjudicating on international crimes in Sri Lanka. This court's material jurisdiction would need to be defined, and consideration must be given to whether the court's temporal and personal jurisdiction should also be defined. That is, should the court only prosecute crimes committed during a certain period, and should it be limited to those bearing greatest responsibility for crimes? The establishment of a court on these lines would require an Act of Parliament. The fundamental necessity and benefit of a separate court to deal with international crimes is clear. A court exercising jurisdiction over international crimes must necessarily be specialized in that field; a specialty in which very few – if any – judges in the Sri Lankan legal system are trained or have sufficient knowledge. Further, the chronic inefficiencies and delays in Sri Lanka's legal system must not be allowed to infect trials that will necessarily be sensitive, and viewed by many victims as fundamental to the pursuit of reconciliation. Moreover, all hybrid models almost always feature a separate court structure, through which international participation could be channeled.

This separate court could either be established as a specialized division of the High Court, or as a discrete court of first instance. The material jurisdiction of this specially established court could be restricted to specified international crimes such as war crimes and crimes against humanity; while its temporal jurisdiction will have to be negotiated and determined with a view to satisfying all victim groups in Sri Lanka. Further, the animating logic of a specialized court requires that it have exclusive jurisdiction over the crimes over which it has jurisdiction, which is to say that such crimes should only be prosecuted in the specialized court for the duration of the court's existence.

Since the raison d'être of the creation of a specialized trial court to hear international crimes would be undermined if routine appellate matters relating to its cases are not also heard by a similarly specialized court, it stands to reason that a specialized appellate institution tasked solely with appellate jurisdiction corresponding to the subject matter jurisdiction of the trial court must also be established. An appellate institution could also, in terms of Article 105 (1) (c), be created by legislation.

A right of appeal to the Court of Appeal or the Supreme Court from a specialized trial court or a specialized appellate court is not constitutionally mandated, even though the Court of Appeal and the Supreme Court possess appellate jurisdiction over criminal matters and final appellate jurisdiction respectively.111

A final appeal to the Supreme Court may thus be dispensed with. While there may be a temptation to prevent a nonspecialized Supreme Court from hearing final appeals in respect of international crimes, caution must be exercised in this regard. As previously discussed in Part III, the Court of Appeal has exercised its discretionary powers of revision – a constitutional remedy – where alternatives remedies of appeal do not exist.112 Thus, the exclusion of a final appeal to the Supreme Court may lead to a proliferation of revision cases in the Court of Appeal from the specialized courts.

Moreover, the grounds of appeal to the Supreme Court may be restricted to certain classes of appeal: for instance, to permit appeals only in respect of substantial questions of domestic procedural or constitutional law, with leave to appeal from the appellate body or special leave from the Supreme Court. In this way, the Supreme Court's jurisdiction could be restricted to questions of domestic law in which it has competence, whereas questions of international law are left to the specialized trial and appellate institutions. Further, greater protection could be afforded to appeals arising from the specialized courts, by way of a requirement that a bench of not less than a particular number of judges of the Supreme Court hear such final appeals.113

4.1.2 Applicable Law

Sri Lanka's substantive criminal law does not criminalize war crimes and crimes against humanity. Further, Sri Lankan law does not recognize modes of liability in international criminal law. These modes of liability include, but are not limited to, indirect perpetration,114 joint criminal enterprise,115 coperpetration, 116 and superior/command responsibility.117

While the Penal Code and existing criminal legislation criminalize acts such as murder, rape and torture; war crimes and crimes against humanity are not offences under domestic law.118 The prosecution of war crimes and crimes against humanity as regular domestic offences is unsatisfactory for a number of reasons. First, the criminalization of war crimes and crimes against humanity reflects a society's commitment to preventing mass atrocities that are not necessarily reflected in Penal Code offences. Second, prosecuting international crimes as regular Penal Code offences ignores the widespread, systematic and structural elements that inhere in the definitions of international crimes. Consequently, the prosecution of international crimes as regular domestic crimes would likely lead to a narrower focus than that required by international crimes, and thus fail to explore the systemic and scale elements of atrocity crimes. Third, prosecuting atrocity crimes as international crimes opens up a wealth of jurisprudence and international precedent for judges and lawyers, whilst prosecuting the same acts as domestic crimes would place lawyers and judges in uncharted legal territory. This is because regular domestic crimes have not been drafted with the intention of being applied in mass atrocity situations. Finally, domestic crimes do not include modes of liability developed within international criminal law, which are necessary and appropriate to the prosecution of crimes in mass atrocity situations.119

Thus, a legislative amendment recognizing war crimes and crimes against humanity as offences within Sri Lankan law is necessary to establish any effective accountability in respect of the past. Typically, retrospective criminal legislation is impermissible under Sri Lankan and international human rights law.120 However, the Sri Lankan constitution and international law carve out exceptions to the rule against retrospective criminal laws in respect of offences that have crystallized within customary international law at the time of commission. Article 13(6) of the Constitution provides that 'nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.'121 In fact, in Sepala Ekanayake’s case, the Court of Appeal cited Article 13(6) in upholding a conviction against a person prosecuted under a retrospective piece of legislation criminalizing hijacking,122 pursuant to which his conviction was also upheld by the Supreme Court.123 Thus, the entire gamut of international crimes that formed part of customary international law may be applied retrospectively in Sri Lanka, provided they were criminal at the time of commission.

In order to prosecute international crimes, international modes of liability must also be made enforceable within our legal system. This could also be done by way of a legislative amendment.

4.2 Personnel
4.2.1 Judges

The effective adjudication of international crimes in a hybrid court relies upon a judiciary experienced in international criminal law and trial practice. While the composition and the number of judges of the trial and appellate courts would have to be determined, amendments to existing legislative provisions together with certain incidental administrative arrangements could permit the recruitment of international judges to the bench.

the event the specialized court is sought to be established as a division within the High Court, existing constitutional provisions relating to the appointment of judges to the High Court must be complied with. Article 111 (2) (a) of the Constitution provides that judges of the High Court be appointed by the President on the recommendation of the Judicial Service Commission (JSC) – a body comprising the Chief Justice and two other judges of the Supreme Court – after consultation with the Attorney General.124 The President may thus appoint international judges to a hybrid court in the same manner by which judges are appointed to the High Court. Incidental amendments will be required to the Rules of the JSC. The JSC's rulemaking power extends to schemes of recruitment and training, appointment, promotion and transfer of judges of the High Court.125 These amendments would thus have to permit the JSC to recommend to the President the appointment of international judges to the specialized court, either through the direct recruitment of international persons, or through a system by which the United Nations or other international body provides the JSC with a list of suitable international candidates from which the JSC may recommend some or all to the President. Amendments would also have to be made to the JSC Rules to the effect that the international judges appointed are posted to the specialized court, and are not included in the general roster of High Court judges subject to regular rules on transfer and promotion. Rules will also have to be promulgated on the scheme of recruitment, mode of appointment, terms of appointment, and disciplinary control of judges appointed to the court.

The Constitution also provides that Commissioners of the High Court may be appointed to exercise the powers of judges of the High Court. However, this option could only be exercised upon recommendation by the Minister of Justice in certain situations.126 Where a recommendation is made, the President may – on the recommendation of the Judicial Service Commission – appoint individuals within the judicial zone specified in the Minister's representation. These Commissioners would be constitutionally guaranteed the same rights, powers, privileges and immunities as a Judge of the High Court.127

In the alternative event that the specialized court is established as a discrete court within the judicial hierarchy that is distinct from the High Court, the power of appointment of judges to that court will lie exclusively with the Judicial Services Commission.128 Here too, incidental amendments to the JSC Rules to permit the appointment of international judges would be necessary; as would provisions relating to the scheme of recruitment, modes of appointment, terms of appointment and disciplinary control of the court's judges.

Likewise, appointments to a specialized appellate court or chamber would have to follow the identical process of appointment by the Judicial Services Commission.

4.2.2 Prosecutors

The effectiveness of a hybrid court relies upon specialized prosecutors who are knowledgeable and experienced in the practice of international criminal law. To fulfill these criteria, hybrid courts have often chosen to employ international personnel in the office of the national prosecutor, or have established a specialized prosecutor's office comprising both domestic and international prosecutors and staff. In fact, past Presidential Commissions of Inquiry have recommended the establishment of an independent prosecutor's unit for the purposes of dealing with select crimes.129

In Sri Lanka, the power of prosecuting offences in the High Court and Magistrates' Courts lies with officers of the Attorney General's Department or Attorneys-at-Law appointed by the Attorney General.130 Thus, the power of prosecuting offices in a criminal court other than the High Court and Magistrate's Court – in the event a discrete specialized court is established outside the High Court – has not been specified by law. As a consequence, Parliament by legislation could establish an independent prosecutor's office outside the Attorney General's Department, and empower it to conduct such prosecutions. Further, the legislative provisions themselves, or amendments to the Establishment Code – a piece of subordinate legislation governing public administration – could provide for the appointment of international personnel to that office.

In the event a prosecution unit is established within the Attorney General's Department, amendments would have to be made to the Establishment Code to enable the appointment of international personnel to a unit within the Attorney General's Department. However, in the event of the establishment of an independent prosecutor's office, legislative amendments may directly provide for the appointment of international personnel to that office. Further, they must explicitly vest in the independent prosecutor the powers otherwise exercisable by the Attorney General in respect of criminal investigations and trials. Incidental amendments to the Establishment Code would also be appropriate.

4.2.3 Right of Audience and Defence Counsel

Any litigant is entitled to be represented in court in person or by an Attorney-at-Law acting on his/her behalf. An Attorney-at- Law is an individual who has been admitted and enrolled before the Supreme Court of Sri Lanka.131 It is only Attorneys-at-Law who, in terms of section 41 of the Judicature Act, are entitled to assist and advise clients and to appear, plead or act in a court of law.

Thus, for international personnel to be provided the right of audience in specialized courts, legislative provisions that effectively amend section 40 of the Judicature Act for the limited purposes of providing a right of audience within the specialized courts must be introduced. Further, these provisions could stipulate that while the right of audience is limited to prosecutions initiated in the specialized courts, they may also extend to appeals and revision applications filed in the Supreme Court or Court of appeal, as the case may be.

Legislative provisions on these lines would apply to both prosecutors and defence counsel. It is of vital importance that, in the event international crimes are introduced to Sri Lanka's substantive law, persons accused of these crimes are entitled to be represented by lawyers experienced in international criminal law and practice. Thus, the option of retaining international lawyers proficient in the area must exist.

A Defence Support Unit would also ideally be established by law or administrative arrangement for the provision of representation for indigent accused, in line with international best practice.

4.2.4 Investigators

Part V of the Code of Criminal Procedure deals with the subject of investigations, and contemplates the conduct of investigations by police officers or inquirers. Section 108 of the Code makes provision for the appointment of an Inquirer by the Minister, by name or office.132 Thus, an independent prosecutor's office – if established – could be named as the Inquirer in respect of international crimes, and be staffed by international and domestic investigators. However, section 125 of the Code allows any police officer not below the rank of Assistant Superintendent of Police, to take over any investigation or to direct the conduct of such investigation.133 This provision must therefore be amended to avoid interference with the work of an independent prosecutor.

In the event prosecutions are conducted by a specialized unit within the Attorney General's Department, the appointment of an independent investigative unit tasked with investigating international crimes may be appropriate. Such a unit would ideally be established outside the Department of Police. Once again, incidental legislative provisions establishing that unit, empowering it with investigative powers, specifying the modalities of its interaction with the prosecutor, and protecting it from external interference must be introduced.

A collaborative effort between domestic and international criminal investigators has proved to be effective within other hybrid models. To permit the recruiting of international personnel, revisions to existing public administration regulations including the Establishment Code may be necessary.

4.2.5 Other administrative positions

The efficient management of a hybrid court depends upon an effective administrative unit, charged with the management of the Court.

Appointments of Court staff are at present within the purview of the Ministry of Justice. Incidental amendments would be required to allow for the appointment of international personnel to assist domestic public servants in the complex administrative task of managing the prosecution of international crimes.

Further, it is important that victim and witness support is made available in line with international standards and best practice. In this regard, Sri Lanka could choose one of two options: the expansive Cambodian model where victims are permitted to and resourced to participate as civil parties and seek reparations; or a more limited Sierra Leone/Lebanon model where witnesses and provided protection from reprisals, and are provided support services such as psychosocial counseling and advice.

Part V - Creating an Enabling Environment for a Hybrid Model

As the foregoing analysis demonstrates, Sri Lanka's existing legal structure – while hierarchical and complex – could accommodate a hybrid court with trial and appellate bodies in a manner that is compatible with the Constitution. A comprehensive legislative package on the lines described in Part IV, alongside regulatory changes by executive functionaries, could establish a robust hybrid mechanism to prosecute the most serious crimes committed by all parties over past decades.

However, the success of a hybrid court does not depend solely on the legal institutional arrangements in place. A number of other factors must be considered carefully in approaching the design and implementation of hybrid courts.

First, budgetary implications and responsibility for funding the mechanism must be identified in advance and agreed upon, to ensure that funding constraints do not impede the work of the court. The Cambodian situation, where funding constraints have threatened to derail the work of the ECCC, offers a cautionary example. Any division of funding responsibilities between the international community and the government must be transparent and finalized, with clear commitments by those responsible that the work of the court will be supported unconditionally.

Second, the work of the court must be seen to be impartial, independent and designed to advance justice – not the interests of any one group or community. A clear, well defined and publicly articulated prosecutorial strategy is essential to winning the confidence of the public, ensuring coherent decision making by prosecutors and insulating them from political pressure. The SCSL and the ECCC have clauses that limit the jurisdiction of the court to senior functionaries most responsible for crimes, 134 which in turn have helped shape the prosecutorial strategies in those courts. In Sri Lanka – given the political sensitivities involved – a prosecutorial strategy must contain commitments to prosecuting all sides to the conflict in a manner that reflects the gamut of international crimes committed in Sri Lankan territory. It must also reflect the prosecutor's commitment to addressing gender crimes as well as crimes against children.

Third, the work of the court must be accessible to all citizens of the country. To ensure this, there must be effective communication and outreach efforts that demystify and explain the work and objectives of the court. This must be an all-island effort, to ensure broad public ownership of the project. Proceedings must be translated, and state media should be used to summarize court proceedings in easily digestible packages. This is of particular important given the likely political sensitivity of most of the court's trials.

Fourth, one of the objectives of the court must be to effect knowledge transfers to domestic functionaries and build capacity within Sri Lanka. While this is likely to happen through professional cooperation, training is also of vital importance. Staff, lawyers and judges at all levels must be trained throughout the process; in order to refine problems that may arise, but also build capacity over the long term. Over time, and after the most politically sensitive trials are completed, a gradual 'nationalization' of the court could be contemplated, similar to the process adopted in Bosnia and Herzegovina.

Fifth, prosecutions through hybrid and other courts could only be successful if they are part of an integrated Transitional Justice strategy, developed in consultation between the government, victims, leaders of minority communities and civil society. For instance, the role of reparations, truth telling and memorialization in the criminal justice process must be considered. Should victims have a right to claim reparations as parties to trials, or should reparations be considered separately? What is the relationship between trials and past and future truth telling mechanisms? What is the follow-up envisaged after the completion of initial trials? These are important questions for which there are no easy answers, and it is only through patient consultations, negotiation and consensus building that they may be satisfactorily addressed.

Finally, an enabling political environment and culture must be cultivated to support the trials and internalize its lessons. Political leaders on all sides of the ethnic divide have a key role to play in this regard. An attitude of introspective reflection on the past, and a willingness to recognize victimhood in all sections of Sri Lanka's diverse populations, will ultimately be the only effective antidote to the narrow political ethno nationalism that animates the opposition to accountability in Sri Lanka.

Endnotes

1See Swarajya, “ New Sri Lankan Foreign Minist er: Our T ilt T owards China Needs A Course Correct ion” (18 January 2015), available at : http://swarajyamag.com/world/new-sri-lankan-foreign-minister-our-tilt-towardschina- needs-a-course-correction/ [accessed 3 May 2015]. Foreign Minister Samaraweera: “We are currently looking at 2-3 different options and will come up with a proposal in about a month's time. We hope for technical assistance from the UN, perhaps judges from the Commonwealth – whom we chair at the moment –too”. See also Colombo Telegraph, “ Domestic Account abilit y Mechanism Is Now Being Planned: Mangala” (2 May 2015), available at : https://www.colombotelegraph.com/index.php/domestic-accountability-mechanismis- now-being-planned-mangala/ [accessed 3 May 2015]. Foreign Minister Samaraweera: “ […] the architecture of a domestic account ability mechanism with international technical assistance as promised by our manifesto are now being planned.” See further Shihar Annez, “ Sri Lanka's new government plans fresh war crimes probe” (29 January 2015), Reuters, available at : http://www.reuter s.com/article/2015/01/29/us-sri- lanka-rightsidUSKBN0L21GQ20150129 [accessed 3 May 2015]: “ Rajitha Senaratne, a government spokesman, told a forum of foreign correspondents in Colombo, referring to the United Nat ions: It will be a new local inquiry. If we need, we will bring some foreign experts.”

 

2 Laura A. Dickinson, “ The Promise of Hybrid Courts”, The American Journal of International Law, Vol. 97, No.2 (April 2003), p.295

 

3 Agreement between the United Nations and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone (16 January 2002), available at: http://www.rscsl.org/Documents/scsl-agreement.pdf  [accessed 11 April 2015]

 

4 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (6 June 2003), available at: http://www.eccc.gov.kh/sites/default/files/legal-documents/Agreement_between_UN_and_RGC.pdf [accessed 11 April 2015]

 

5 Katerina Uhlířová, “War Crimes Chamber of the Court of Bosnia and Herzegovina: Seeding „International Standards of Justice‟?” in Edda Kristjánsdóttir, André Nollkaemper, Cedric Ryngaert (ed.), International Law in Domestic Courts: Rule of Law Reform in Post-conflict States (Cambridge, 2012), p. 207; see also Security Council Resolution 1503 on 28 August 2003 (UN Doc. S/RES/1503), para. 5, available at : http://www.icty.org/x/file/Legal%20Library/Statute/statute_1503_2003_en.pdf [accessed 14 April 2015]

 

6 The UNTAET was created by Security Council Resolution 1272 on 25 October 1999 (UN Doc. S/RES/1272).

 

7Statute of the Special Court for Sierra Leone (16 January 2002), article 1(1), available at: http://www.rscsl.org/Documents/scsl-statute.pdf [accessed 11 April 2015] (hereinafter Statute of the Special Court for Sierra Leone)

 

8 Law on the Establishment of the Extraordinary Chambers for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (27 October 2004), articles 3-8, available at: http://www.geneva-academy.ch/RULAC/pdf_state/ECCC-Law-as-amended-27-Oct-2004-Eng.pdf [accessed 11 April 2015] (hereinafter Law of the Establishment of the ECCC)

 

9 Statute of the Special Tribunal for Lebanon, attached to Security Council Resolution 1757 (30 May 2007), available at : https://www.stl-tsl.org/en/documents/stl-documents/statute/223-statute-of-the-special-tribunal-for-lebanon [accessed 11 April 2015] (hereinafter Statute of the Special Tribunal for Lebanon)

 

10 Ibid., article 2(a)

 

11 Ibid., article 2(b)

 

12 The similar position was taken by the Grand Chamber of the European Court of Human Rights in ECtHR, Maktouf and Damjanovic v. BiH, (App No. 2312/08 and 34179/08), para. 70. The Court found that the retroactive application of the 2003 BiH Criminal Code violated the European Convention of Human Rights. Because with regard to the cases involving a lower range of punishment, the 2003 Code led to a more severe sentence than that which would have been awarded under the 1976 SFRY Criminal Code.

 

13  UNTAET Regulation 2000/15 on the establishment of panels with exclusive jurisdiction over serious criminal offences (6 June 2000), section 3, available at: http://www.jornal.gov.tl/lawsTL/UNTAET-Law/Regulations%20English/Reg1999-01.pdf  [accessed 15 April 2015] (hereinafter UNTAET Regulation 2000/15)

 

14  Suzannah Linton, “Cambodia, East Timor and Sierra Leone: experiments in international justice”, 12 CRIMINAL LAW FORUM (2001), p.205

 

15 UNTAET Regulation 2000/15, supra note 13, section 3 ; UNTAET Regulation 1999/1 on the authority of the Transitional Administration in East Timor (27 November 1999), section 3, available at: http://www.jornal.gov.tl/lawsTL/UNTAET-Law/Regulations%20English/Reg1999-01.pdf [accessed 15 April 2015]

 

16 Statute of the Special Court for Sierra Leone, supra note 7, article 12(1)

 

17 Law on the Establishment of the ECCC, supra note 8, articles 9 and 20

 

18 Ibid., article 9

 

19 Ibid., article 14(1)

 

20 Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, annexed to Security Council Resolution 1757 (30 May 2007), article 2(3), available at: http://legal.un.org/avl/ha/abunal/abunal.html [accessed 11 April 2015] (hereinafter Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon)

 

21 As in the case of Lebanon, see ibid.

 

22 This is the case for Sierra Leone and Lebanon: see Statute of the Special Court for Sierra Leone, supra note 7, article 12(1)(a); Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, supra note 20, article 2(3).

 

23 This is the case for Sierra Leone and Lebanon: see Statute of the Special Court for Sierra Leone, supra note 7, article 12(1)(b); Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon, supra note 20, article 2(3).

 

24 Bogdan Ivanisevic, “The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court”, International Center for Transitional Justice (2008), p. 7, available at: http://wcjp.unicri.it/proceedings/docs/ICTJ_BiH%20WCC_2008_eng.PDF [accessed 14 April 2015]

 

25 “Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina” (23 May  2002), Official Gazette of Bosnia and Herzegovina 15/02, article 17

 

26 B. Ivanisevic, “The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court”, supra note 24, p. 7

 

27 “Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor‟s Office of Bosnia and Herzegovina as Well as on the Creation of the Transition Council, Replacing the Registry Agreement of 1 December 2004 and the Annex thereto” Official Gazette of Bosnia and Herzegovina – International Agreements 3/07 (26 September 2006), article 8(7), available at: http://www.sudbih.gov.ba/files/docs/zakoni/en/Sporazum_o_Uredu_registrara_-_eng.pdf  [accessed 14 April 2015]

 

28 Ibid., article 8(6)

 

29 UNTAET Regulation 2000/15, supra note 13, section 22.1

 

30 Ibid., section 22.2

 

31 Statute of the Special Court for Sierra Leone, supra note 7, article 15(3); Statute of the Special Tribunal for Lebanon, supra note 9, article 11(3)

 

32 Statute of the Special Tribunal for Lebanon, supra note 9, article 11(4); Statute of the Special Court for Sierra Leone, supra note 7, article 15(4). Although such a requirement was originally included in the Statute of the SCSL, the Government opted for amendment through an exchange of letters, and thus allowed for the appointment of a non-Sierra Leonean as the first Deputy Prosecutor, see Tom Perriello and Marieke Wierda, “Prosecutions Case Studies Series, The Special Court of Sierra Leone Under Scrutiny”, International Center for Transitional Justice (March 2006), p. 2

 

33 Law on the Establishment of the ECCC, supra note 8, article 16

 

34 UNTAET Regulation 2000/16 on the Organization of the Public Prosecution Service in East Timor (6 June 2000), available at: http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/Reg0016E.pdf [accessed 14 April 2015] (hereinafter UNTAET Regulation 2000/16)

 

35 Ibid., section 5.1

 

36 Ibid., section 4.6

 

37Statute of the Special Court for Sierra Leone, supra note 7, article 15(2); Statute of the Special Tribunal for Lebanon, supra note 9, article 11(5)

 

38  T. Perriello and M. Wierda, “Prosecutions Case Studies Series, The Special Court of Sierra Leone Under Scrutiny”, supra note 32,  p. 22

 

39 Investigation Division, Special Tribunal for Lebanon, available at: http://www.stl-tsl.org/en/about-the-stl/structure-of-the-stl/the-office-of-the-prosecutor/investigation- division [accessed 11 April 2015]

 

40 Law on the Establishment of the ECCC, supra note 8, article 23

 

41 Human Rights Watch, “Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina”, February 2006, Volume 18, No. 1(D), pp. 13-14, available at: http://www.hrw.org/sites/default/files/reports/ij0206webwcover.pdf [accessed 15 April 2015]

 

42  UNTAET Regulation 2000/16, supra note 34, sections 14.3, 14.4 and 14.6

 

43 Rupert Skilbeck, “Building the Fourth Pillar: Defence Rights at the Special Court for Sierra Leone”, Essex Human Rights Review Vol. 1 No.1 66, p.79

 

44  T. Perriello and M. Wierda, “Prosecutions Case Studies Series, The Special Court of Sierra Leone Under Scrutiny”, supra note 32, p.25

 

45 See Defence Support Section (DSS), available at: http://www.eccc.gov.kh/en/dss/defence-support-section-dss [accessed 11 April 2015]

 

46 See Defence Office, Special Tribunal for Lebanon, available at: https://www.stl- tsl.org/en/about-the-stl/structure-of-the-stl/defence/defence-office-69 [accessed 11 April 2015]

 

47 Statute of the Special Court for Sierra Leone, supra note 7, article 13

 

48  Human Rights Watch, “Justice for Atrocity Crimes: Lessons of International Support for Trials Before the State Court of Bosnia and Herzegovina”, 12 (2012), p.14, available at: http://www.hrw.org/reports/2012/03/12/justice-atrocity-crimes [accessed 15 April 2015]

 

49 Ibid. See also B. Ivanisevic, “The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court”, supra note 24, p. 15

 

50 Suzanne Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor” (2003) 16 Harv. H.R.J. 245, p. 251; Judicial System Monitoring Program, “Digest of the Jurisprudence of the Special Panels for Special Crimes” (April 2007), p.15, available at: http://www.locjkt.or.id/Timor_E/new/pdf/Digest%20of%20the%20Jurisprudence.pdf [accessed 14 April 2015]

 

51 William W. Burke-White, “Community of Courts: Toward a System of International Criminal Law Enforcement” (2002) 24 Mich. J. Int‟l. L. 1, p.70

 

52 S. Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor”, supra note 50, p.264

 

53 David Cohen, “ „Justice on the Cheap‟ Revisited: The Failure of the Serious Crimes Trials in East Timor”, East-West Center, No. 80 (May 2006), p. 5, available at: http://www.eastwestcenter.org/fileadmin/stored/pdfs/api080.pdf [accessed 14 April 2015]

 

54  Ibid.

 

56 See Special Tribunal for Sierra Leone Witness Protection, available at: http://www.stl-tsl.org/en/about-the-stl/structure-of-the-stl/registry/witness-protection [accessed 15 April 2015]

 

57 See Court of  Bosnia and Herzegovina, Registry Support to the Court, available at: http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=4&id=8&jezik=e [accessed 15 April 2015]

 

58 D.Cohen, “ „Justice on the Cheap‟ Revisited: The Failure of the Serious Crimes Trials in East Timor” , supra note 54, p.5

 

59 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 105(2)

 

60  Ibid.

 

61 Judicature Act No 2 of 1978 (as amended), section 2

 

62  Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 14

 

63 Judicature Act No 2 of 1978 (as amended), section 9; Administration of Justice Law No. 25 of 1975 (as amended), section 20

 

64 Judicature Act No 2 of 1978 (as amended), section 11; Administration of Justice Law No. 25 of 1975 (as amended), section 20(3)

 

65 Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 203

 

66 Judicature Act No 2 of 1978 (as amended), sections 14, 15 and 16; Code of Criminal Procedure Act No. 15 of 1979 (as amended), sections 331 and 340

 

67 Ariyakumara v. Karunarathne, SC Spl LA No. 169/2013 (decided on 26 March 2014), available at: http://www.supremecourt.lk/images/documents/sc_spl_la_169_2013.pdf  [accessed 12 April 2015]

 

68 High Court of the Provinces (Special Provisions) Act No. 19 of 1990 (as amended), section 9; see also, Wickremasekara v. Officer-in-Charge, Police Station Ampara [2004] 1 SriLR 257

69 Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 450

 

70 Ibid., section 114. This provision relates to the offence of waging or attempting to wage war or abetting the waging of war against the State.

 

71 Ibid., section 115. This provision relates to the offence of conspiracy to commit offence punishable under section 14 of the Penal Code.

 

72 Ibid., section 116. This provision relates to the offence of collecting men, arms or ammunition or otherwise prepares with the intention of waging war against the Republic.

 

73  Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 450(2)

 

74 Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (as amended), section 15

 

75  Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 451(3)

 

76  Ibid.

 

77 See for e.g., Martin vs. Wijewardena, 1989(2)Sri LR 410; Gamhewa vs. Maggie Nona 1982 (2) Sri LR 250

 

78 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 128. The Judicature Act No 2 of 1978 (as amended) however mentions in section 37 a „right of appeal to the Supreme Court‟.

 

79 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 127

 

80 Ibid., articles 138(1) and 145; Code of Criminal Procedure Act No. 15 of 1979 (as amended), sections 364, 365 and 368

 

81 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 154P(3)(b); The High Court of the Provinces (Special Provisions) Act, No. 19 of  1990, section 12 empowers the Court of Appeal to transfer to a Provisional High  Court an application for revision, where the Court of Appeal considers it „expedient to do so‟.

 

82  Ramalingam v. Parameswary [2000] 2 Sri.L.R. 340, p. 347

 

83  Rustom v. Hapangama & Co. [1978-79-80] 1 Sri.L.R. 352, pp. 357-358; Sunil Chandra v. Kumara Veloo [2001] 3 Sri.L.R. 91, p. 102

 

84 U. L. Abdul Majeed, Commentary on Civil Procedure Code and Civil Law in Sri Lanka, Vol. 2 (Colombo, 2013), p.1590

 

85  Ibid.

 

86  Ibid.

 

87 The reason for this being that revision is a discretionary remedy vested in the Court and it is exercised in the absence of an alternative remedy to the applicant – see, Pararagasam & Another v. S.A. Emmanuel, C.A. 931/88, C.A. Minutes 24.7.91 as cited in U. L. Abdul Majeed, Commentary on Civil Procedure Code and Civil Law in Sri Lanka, ibid., p.1606

 

88L. Abdul Majeed, Commentary on Civil Procedure Code and Civil Law in Sri Lanka, supra note 83, pp. 1599-1605; see also, Jonita v. Abeysekera, Sri Skantha‟s Law Reports Vol. IV, p.22; Rustom v. Hapangama &Co., [1978-79-80] 1 Sri.L.R. 352, p. 358; Silva v. Silva (1943) 44 N.L.R. 494, p. 496; Dharmaratne and Another v. Palm Paradise Cabanas Ltd. and Others, [2003] 3 Sri.L.R. 24, pp. 29-30

 

89 Martin v. Wijewardena [1989] 2 Sri.L.R. 409, p. 419; Gamhewa v. Maggie Nona [1989] 2 Sri.L.R. 250, p.252; Dassanayake v. Sampath Bank Ltd. [2002] 3 Sri.L.R. 268, p. 270

 

90 L. Abdul Majeed, Commentary on Civil Procedure Code and Civil Law in Sri Lanka, supra note 84, p.1590

 

91 Sunil A. F. Cooray, Principles of Administrative Law in Sri Lanka Vol. 2 (3rd edn.), p.1271

 

92 Ibid., pp. 1271 and 1311; see also The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 128(1); Code of Criminal Procedure Act No. 15 of 1979 (as amended), sections 331 and 340; High Court of the Provinces (Special Provisions) Act No. 19 of 1990 (as amended), section 9

 

93 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 128(2) 94 Ibid., proviso to article 128(2)

 

95 Ibid., article 41C read with article 107. These and other provisions that were introduced by the 19th Amendment to the Constitution are technically, at the time of printing, not law since the 19th Amendment Bill has not yet been signed into law by the Speaker. He is expected to do so shortly. The 19th Amendment has, however, been passed by Parliament and is awaiting formal acknowledgement by the Speaker.

 

96 Such recommendation shall be made after consultation with the Attorney-General.

 

97 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 111(2)(a)

 

98 Ibid., article 111A(1)

 

99 Ibid., article 111A(3)

 

100  Ibid., article 111H(b) read with article 111M(a)

 

101 Ibid., article 111H(b) read with article 111D(1)

 

102 Code of Criminal Procedure Act No. 15 of 1979 (as amended), sections 193 and 400

 

103  Judicature Act No 2 of 1978 (as amended), section 40(1)

 

104 Ibid., section 41(1)

 

105 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 13 (3); Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 260; Judicature Act No 2 of 1978 (as amended), section 41(1)

 

106  Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 110

 

107 Ibid., section 117

 

108 Ibid., section 123

 

109 Ibid., section 124

 

110 Ibid., section 125

 

111 In respect of the Court of Appeal, see supra note 77. In respect of the Supreme Court, see The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 127, 128. Note that a right to appeal to the Supreme Court only arises in  respect of appeals from final orders from the Court of Appeal involving a substantial question of law; or any order including interlocutory orders from the Court of Appeal where the Court of Appeal has granted leave to appeal, or where the Supreme Court is of the opinion that the matter is fit for review.

 

112 See supra note 87

 

113 A similar provision exists with regard to an appeal from any judgment, sentence or order pronounced by a Trial at Bar: see Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 451(3).

 

114 The concept of indirect perpetration refers to the use of another person to physically carry out the crime, while controlling the will of the perpetrator.

 

115  Joint criminal enterprise: several individuals who contribute to criminal activity, with a common purpose that such act is carried out jointly or by some members.

 

116 Co-perpetration: being directly involved in the commission of the crime, without necessarily being a principal actor.

 

117 Superior/command responsibility: failure by a superior to prevent or punish the commission of a crime carried out by a subordinate.

 

118 The Conventions Act, No 4 of 2006 criminalizes grave breaches of the four Geneva Conventions, but does not go further. As a result, many war crimes committed in non-international armed conflicts – like the armed conflict between the LTTE and Sri Lankan armed forces – are not included within the scope of the Act.

 

119 See Niran Anketell, “Building Credible Domestic Mechanisms for Accountability and Transitional Justice in Sri Lanka: Prosecutions and Criminal Justice”, Daily FT (23 January 2015), available at: http://www.ft.lk/2015/01/23/building-credible- mechanisms-for-domestic-accountability-and-transitional-justice-prosecutions-and- criminal-justice/ [accessed 15 April 2015]

 

120  The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 13(6); ICCPR, article 15(1)

 

121 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, proviso to article 13(6); the terminology used by this proviso is borrowed from the identical formulation in the ICCPR, article 15(2).

 

122Ekanayake vs. Attorney General 1987 (1) Sri LR 107

 

123Ekanayake vs. Attorney General 1988 (1) Sri LR 46

 

124 The Constitution of the Democratic Socialist Republic of Sri Lanka (1978), article 111(2)(a)

 

125 Ibid., article 111H(2)(a)

 

126 Ibid., article 111A(1)

 

127 Ibid., article 111A(3)

 

128 Ibid., article 111H(b)

 

129 1994 Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces, Sessional Paper No. V-1997

 

130  Code of Criminal Procedure Act No. 15 of 1979 (as amended), sections 193 and 400

 

131 Judicature Act No. 2 of 1978 (as amended), section 40

 

132 Code of Criminal Procedure Act No. 15 of 1979 (as amended), section 108

 

133 Ibid.,  section 125

 

134 Statute of the Special Court for Sierra Leone, supra note 7, article 1; Law on the Establishment of the ECCC,  supra note 8, article 1

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