Published in The Daily FT on Jan. 23 ::
The end of the Rajapaksa regime has signalled the hope of many new beginnings. One of those hopes is that the country will at least now embark on a credible process of domestic reckoning with the allegations of violations of human rights and laws of war during the period of armed conflict and beyond, but particularly during the unprecedented brutality of the final months of fighting.
During President Sirisena’s campaign, he and his allies remained tight-lipped on the nature and scope of the domestic mechanisms they had vaguely advanced as an alternative to international accountability. The then Opposition Leader and incumbent Prime Minister Ranil Wickremesinghe appeared to reference the South African model – one that was characterised by a clear anti-prosecution bias – when he briefly spoke about the acceptability of a ‘truth commission’ approach and a move towards apologies and forgiveness.
But a series of pronouncements by influential players within the new administration – including Minister Rajitha Senaratne and Foreign Minister Mangala Samaraweera – appears to indicate that there is substantial support for domestic trials within at least some quarters of the new Government.
The challenge then for the international community and Sri Lankan actors concerned about transitional justice is how best to engage the new Government in this area. While there is an understandable willingness to afford the new administration space and support, there is an even greater need to identify measurable benchmarks against which to assess the Government’s progress on its own assurances. This is particularly important because the post-independence history of the country is littered with a string of failed domestic processes.
While the lack of political will has been a significant causative factor, Sri Lanka also lacks the legal and institutional architecture with which to credibly deal with systematic crimes. More critically for Sri Lanka’s long-term reconciliation prospects, there is a lack of awareness, training and imagination within the Sri Lankan body-politic on transitional justice; which stands in stark contrast to the relatively rich texture of debates on constitutional, economic and social policy reforms.
Thus, to merely expect the Sri Lankan Government to deliver on transitional justice, however well-intentioned the Government’s interlocutors may be, would be naïve. Instead, efforts to advance transitional justice must focus on building laws and institutions, awareness-raising, training, capacity building and keen international support, participation and observation.
Legal and institutional architecture
Sri Lanka’s substantive criminal law is thoroughly unsuited to the prosecution of war crimes and crimes against humanity. While the Penal Code and existing criminal legislation criminalise acts such as murder, rape and torture; war crimes and crimes against humanity are not offences under domestic law.1 The prosecution of war crimes and crimes against humanity as regular domestic offences (murder, rape, etc.) is deeply problematic for a number of reasons.
First, the criminalisation 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 atrocity crimes as regular Penal Code offencesignores the widespread, systematic and structural elements that are inherent in the definitions of international crimes.
As a consequence, the prosecution of atrocity crimes as regular domestic crimes would likely lead to a narrower pursuit of truth than that required by international crimes, and thus fail to explore the systemic aspects and scale 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 such as murder, causing grievous hurt, etc., would place lawyers and judges in uncharted legal territory.
Fourth, the gravity of a person’s conduct in the commission of international crimes may not be reflected in punishments for corresponding domestic offences.Finally, if the Government intends to ensure that the exercise of jurisdiction by international or foreign courts is precluded by prosecuting crimes domestically, its purpose will only be assured by prosecuting atrocity crimes as international crimes.
An example of this is the case of Bagaragaza, where the Appeals Chamber of the international tribunal for Rwanda (ICTR) refused the Prosecutor’s motion to transfer Bagaragaza to Norway because Norway did not have provisions criminalising genocide. The Appeals Chamber held that prosecuting Bagaragaza in Norway under domestic crimes risked trivialising the nature and gravity of the crimes in question.
Thus, for Sri Lanka to embark on a process of dealing with the past through trials, it must enact legislation recognising the three major international crimes: war crimes, crimes against humanity and genocide. While retrospective criminal legislation is generally impermissible under Sri Lankan law (nullum crimen sine lege), Article 13 (6) of the Sri Lanka Constitution carves out an exception in respect of “any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”
This proviso would therefore enable the retrospective application of international crimes legislation to prior events, since most war crimes and crimes against humanity have long crystallised into crimes under customary international law.
Sri Lanka’s institutional architecture for the administration of justice is also ill-suited to address international crimes. Prosecutions of these crimes require judges and lawyers trained in the practice of international criminal law, trained court staff, and case management systems capable of processing tens of thousands of documents.
Given these requirements, and in the context of chronic inefficiencies in the Sri Lankan legal system, only a special court dedicated to hearing these crimes – with at least a dedicated trial chamber and appeals chamber – could cope with the exacting demands of prosecuting complex crimes. These changes would have to be enacted through constitutional changes and suitable amendments to the Criminal Procedure Code.
Further, a special or independent prosecutor’s unit or office must be established, which may initially be staffed by lawyers from the Attorney General’s Department with previous experience in international criminal prosecutions, but eventually through open and transparent recruitment processes. While these reforms are costly, if implemented properly, they could attract the generous support of bilateral and multilateral donors. Likewise, a special investigative unit will also have to be established, either as a stand-alone department or as an auxiliary unit within the Department of Police.
Sri Lanka’s limited attempts at prosecuting atrocity crimes in the past have been unconvincing, in large part because prosecutions have focused onlower ranking ‘trigger pullers’ and not senior leaders bearing greatest responsibility for these crimes.
This reality reinforces impunity amongst higher ranking officials and must be addressed. It is essential therefore for the Government to craft a prosecution policy in consultation with the Attorney General, international experts, the United Nations Office of the High Commissioner for Human Rights, civil society groups and victims. Such a policy must recognise that prosecuting every international crime committed, even those committed within a limited temporal period, is impossible.
Starting from that assumption, the policy would have to address how limited investigative and prosecutorial resources should be deployed. Such a prosecution policy should include commitments to prosecute senior leaders most responsible for crimes; commitments to prosecute those on both sides of the armed conflict; and commitments to prosecute crimes representative of the gamut of criminal activity under scrutiny.
A consensus document outlining a prosecutorial strategy will help insulate the prosecutor from political pressure, and signal a commitment to avoiding ad hoc and politically motivated prosecutorial choices.
International support, assistance and capacity building
Foreign Minister Mangala Samaraweera has already signalled to the Indian media that while the Government does not support international trials, it would be open to accepting technical support and even the participation of foreign judges as part of its domestic process. In the event his comments reflect Government policy, it is hugely significant, because international involvementhas helped dramatically raise the quality, credibility and efficacy of recent domestic trials across the globe.
It is critical that this kind of international technical support has fundamental qualitative differences with the obscure role of international advisors in the Presidential Commission on Missing Persons. Courts with an international element have been set up recently in Cambodia, Sierra Leone, East Timor and Bosnia; and provide a range of different models from which Sri Lanka may choose.
These hybrid courts show thatthe involvement of international personnel could be structured at every level: investigative officers, prosecutors, judges, judges’ legal advisors and case management staff. The fundamental benefit of hybridity is that it combines the benefits of domestic trials – greater visibility, credibility and ownership within the country; accessibility to victims; and lower costs – with the relative depoliticisation and technical expertise provided by international personnel.
International technical support and capacity building for lawyers and judges will also be important. Finally, international observation – by states and NGOs – will serve as a check on the integrity of the process, but also act as a guarantor of the credibility of the trials in the inevitable event of stakeholder frustration with some aspects of the process.
Involvement of victims and civil society
The involvement of victims in investigative and trial processes is arguably the most important factor in ensuring closure and reconciliation. Sri Lanka’s existing legal system is sorely lacking in this regard. A good point to start in terms of reform is a Victims and Witnesses Bill.
However, to truly include victims as active stakeholders in the process, they must be provided with more than the mere guarantee of protection. Two options in particular must be considered: first, to permit victims’ lawyers to directly participate in trials by giving them the right to lead evidence, cross examine witnesses, and address court on matters of law and procedure; and second, to allow victims to advance civil claims through the criminal trial process against perpetrators. The Extraordinary Chambers in the Court of Cambodia (ECCC) and the International Criminal Court (ICC) have analogous provisions which Sri Lanka must consider in detail.
For a process of prosecutions to be credible, Sri Lankan civil society must play a keyrole around trials. Civil society groups and networks must collect and collate probative evidence; provide input on the design and implementation of laws and institutions; mobilise victims and witnesses to engage investigative and prosecutorial authorities; explain the vagaries of the legal system to victim communities; and monitor the progress of investigative processes and trials.
Civil society groups must also ensure that there is no compromise in fair trial rights and due process to defendants. In the event of victim representation in trials, civil society lawyers will also shape the course of trialsthrough their interventions.
Training and capacity building programs are necessary preconditions to prepare domestic civil society to play these multiple and challenging roles. This training must primarily be in the areas of international criminal law and transitional justice, and focus specifically on evidence collection, monitoring and trial advocacy skills.
The new Sri Lankan Government has articulated a vision for a domestic trial process that is a significant improvement on their rhetoric during the election campaign. For that reason, the Government must be given an opportunity to make good on its assurances. However, given the Sri Lankan State’s persistent unwillingness and inability to credibly address impunity, those who wish to see a meaningful process of righting wrongs in Sri Lanka must demand that the Government make tangible commitments and progress towards addressing victims’ demands for justice.
A mere commitment to conduct a credible process without the necessary legal, institutional and policy reforms must not be accepted at face value. This article outlines the key reforms necessary to ensure that the Government’s promise of a credible domestic process results in a break with the past.
An opportune moment for the Government to make these commitments formally may be at the sessions of the Human Rights Council where the report of the international inquiry on Sri Lanka will presented. If the Sri Lankan Government is to earn the right to keep international justice at bay, it must prove it has the will and ability to afford justice to victims at home.
1 The Conventions Act, No 4 of 2006 criminalises grave breaches of the four Geneva Conventions, but does not go further. As a result, 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.
(The writer is a lawyer practicing in Colombo, particularly in the areas of human rights and constitutional law. He worked at the International Co-Prosecutor’s Office of the ECCC [Khmer Rouge Tribunal] in Phnom Penh and as a Human Rights Fellow of the Center for Global Justice and Human Rights, New York.)