A debate that is prevalent among the actors involved in the Sri Lankan post-conflict setting is the issue of which tribunals should be used in the transitional justice process. Whether it be the use of an international tribunal, which those among the Tamil diaspora and international community are mainly in favour of, or the use of a purely domestic mechanism, which is a strong opinion among the Sinhala majority, and leadership in Sri Lanka, or as the UN Human Rights Council recommended in September 2015 – the use of a hybrid court to try perpetrators of war crimes. So, I decided to write this blog in the hopes that an academic exploration of the different tribunals will help us understand the crux of this debate.

International (External) Tribunals

Two of the key characteristics of an international tribunal is independence and impartiality, which is extremely necessary in times of transition, especially from a brutally violent conflict – and when it comes to ethnic conflicts, which pits community against community and even neighbour against neighbour(1). This may not only convey the clear message that the international community will not tolerate such violations against humanity, but also, hopefully, prevent the conflict from reoccurring in the country in question and even worldwide (2). Added to this, having an international tribunal will give easier access to transnational prosecutions, as most senior planners or perpetrators of war crimes may have fled the country of origin and may be inaccessible for prosecution by national authorities (3). “An international tribunal stands a greater chance than local courts of obtaining their physical custody and extradition” (4).

An example of an international tribunal is that of the International Criminal Tribunal for Former Yugoslavia (ICTY), which was meant to contribute to reconciliation by removing some of the worst offenders from power (5). The International Criminal Tribunal of Rwanda (ICTR) is another example of an externally and internationally run tribunal. In both of these contexts the tribunals were set up outside the country not only because of safety and security reasons, but also because having an external court, staffed by outsiders could guarantee impartiality, credibility and expertise that could be compromised in a national legal system that would have already been decimated during the conflict (6). Impartiality and credibility are the reasons the UN and the international community continue to push Sri Lanka for an international mechanism or a hybrid mechanism (this will be discussed below). However, the Government of Sri Lanka (GoSL) stands firmly against any international involvement in the process, a threat to sovereignty being their biggest argument.

Domestic/ National Courts

Domestic courts may be beneficial to the post-conflict government to establish their legitimacy and credibility by showing their determination to hold perpetrators accountable for their crimes. Generally, governments that survive a civil conflict may have a fragile or broken down judicial and criminal justice system, therefore this would give them the push needed to rebuild these systems (7). Furthermore, considering the debate about cultural relevance, who better than the domestic system to consider the nuances of local culture when making decisions about punishments and compensations? (8)

            “(Domestic courts) could be of greater and more immediate symbolic force because                    verdicts would be rendered by courts familiar to the local community” (9)

However, as mentioned before governments coming out of a civil conflict are in a fragile state, so would they be able to bare the pressure and the work required to run a domestic tribunal? Also, in a case like Sri Lanka where those in authority also committed human rights abuses, local mechanisms may be severely compromised and eroded. As Kritz aptly questions:

            “If the national institutions of justice were actually functioning properly to uphold                       basic rights and the rule of law, the atrocities in question would not likely be                          occurring” (10).

Therefore, in order for a tribunal to be impartial and credible, having the international community involved may be the best way forward. As Daniela Gayshon, a lawyer for Public Interest Advocacy Centre (PIAC), emphasises, people engage in transitional justice mechanisms if they believe that it is independent and impartial “both in practice and perception”, and if they feel that it is safe to do so(11). In Sri Lanka many victims are unwilling to testify in a process controlled by the government mainly because they do not feel safe doing so. However, there is another approach that may combine the best of both worlds: hybrid courts.
Hybrid Courts

After pushing the GoSL to have an international mechanism with no avail, in September 2015, the UN Human Rights Council recommended that Sri Lanka have a hybrid mechanism to prosecute perpetrators of human rights violations and war crimes. Under this resolution, the international community will only participate as advisors and experts, and not as decision makers in the internal process. Although the GoSL accepted the resolution, the president of Sri Lanka continues to deny even a reduced international involvement in the process (12). This issue has been controversial in Sri Lanka as the opposition has been using it to mobilise the nationalist sentiment of the ethnic majority against the government (13).

Whilst this might be a suitable compromise for a context such as Sri Lanka, this approach relies on a complex relationship amongst the local, national and international fields (14). Whilst the first truth commissions were completely national such as South Africa and Chile, or completely international such as El Salvador, one of the first commissions to pioneer the hybrid system was the Guatemalan Historical Clarification Commission and the Haitian Truth and Reconciliation Commission (15). Other examples of hybrid commissions are East Timor, Sierra Leone, Kosovo, the UN–Cambodian tribunal, and the Extraordinary Chambers of the Courts of Cambodia (ECCC), established in 2004.

This type of system may be beneficial because the international expertise can help build up a viable national system, and eventually the international role can be reduced when the national system is strong enough to stand on its own. Having international involvement can also add credibility to the national system – and have successful participation from victims. It will also ensure that the mechanism follows proper standards and thus be more effective in prosecuting perpetrators and getting justice for victims. And more importantly, to run such a mechanism financial and technical assistance is crucial, thus the international involvement may be able to facilitate this, where a domestic mechanism on its own may not have the resources to do so(16). As Rohit-Arriza states it best:

            “These hybrid institutions can combine the independence, impartiality and resources of an international institution with the grounding in national law, realities and culture, the reduced costs, and the continuity and sustainability of a national effort” (17).

However, this may also disadvantage national processes by “overwhelming” it or “deforming” it. Taking Afghanistan and Iraq as an example, the transitional period is due to violent external occupation, therefore this may raise questions about political legitimacy and the intentions and priorities of the occupying power (18). Furthermore, in a context like Sri Lanka where a majority of political leadership, and nationalist factions of the population are against international involvement, it may cause further tension and uprising in an already unstable environment.

So how do we strike a balance?  How do we find a ‘both/and’ (rather than either/or) approach that is best for Sri Lanka, which allows the meeting of national and the international aspiration? How do we get all parties involved to agree? Why is this debate still surrounding the political realm of Sri Lanka?

Notes:

(1) Roht-Arriaza, N. (2006). The New Landscape of Transitional Justice. In Roht-Arriaza, N. and Mariezcurrena, J. (eds.) Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice. Cambridge: Cambridge University Press. pp. 1-16.

(2)  Kritz, N.J. (1997). War Crimes Tribunals and Truth Commissions: Some Thoughts on Accountability Mechanisms for Mass Violations of Human Rights. USAID Conference: Promoting Democracy, Human Rights, and Reintegration in Post-conflict Societies, October 30-31, 1997

(3)  see notes 1 and 2

(4) see note 2

(5) see note 1

(6) see note 1

(7) see note 2

(8) see note 2

(9) Security Council Resolution 935, 1994

(10) see note 2

(11) Robinson, N. (2016). Victims of Sri Lanka’s Brutal Civil War Unwilling to Provide Crucial Testimony to War Crimes Court. ABC News [online], 26 August 2016. Retrieved at <http://www.abc.net.au/news/2016-08-25/war-crime-victims-fear-facing-sri-lanka-court/7786462> [26 August 2016]

(12) Perera, J. (2016). Government’s Decisiveness Wins All Round Support. The Island [online], 15 August 2016. Retrieved at <http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=150377> [18 August 2016]

Ferdinando, S. (2016). How Govt Co-Sponsored Geneva Resolution Inimical to Sri Lanka. Sri Lanka Guardian [online], 10 August 2016. Retrieved at <http://www.slguardian.org/2016/08/how-govt-co-sponsored-geneva-resolution-inimical-to-sri-lanka/> [20 August 2016].

(13) Perera (same as note 13)

(14) see note 1

(15) see note 1 and 2

(16) see note 2

(17) see note 1

(18) see note 1