The recent Human Rights Council resolution on Sri Lanka is a remarkable document. Crafted in the immediate aftermath of the devastating OISL Report on Sri Lanka whose central recommendation was that a ‘special hybrid court’ be established in Sri Lanka, and despite some hiccups during negotiations, a resolution eventually acceptable to a wide range of parties found uncontested passage through the Council. The government’s eventual co-sponsorship of the resolution signaled their full acceptance of its language. In exchange for its support, the Sri Lankan government was rewarded with text that congratulated it, and approvingly recognized many of its voluntary commitments. Moreover, the resolution offered the government the interpretive space to claim to its domestic audience that it had overcome a challenging trial in Geneva. On the Tamil side of the equation, the moderates of the Tamil National Alliance who roundly defeated their extremist opponents in recent elections also welcomed the resolution on account of the strength of its content.
A measure of Sinhala-Tamil consensus on accountability – a precondition for genuine reconciliation in Sri Lanka – appeared possible for the first time since 2009. The resolution referenced many of the key demands of human rights defenders and Tamil political leaders from Sri Lanka. The operative paragraphs of the resolution echoed UN High Commissioner Zeid’s call for a special hybrid court by affirming the importance of ‘Commonwealth and other foreign’ judges, lawyers, prosecutors and investigators participating in a Sri Lankan judicial mechanism; indicated the need for the incorporation of international crimes into Sri Lankan law with retroactive effect till at least 2002; highlighted the importance of security sector reform including vetting and lustration; and recognized a number of sweeping commitments by the government including promises to effect a political settlement through constitutional measures, establish a Truth Commission and a discrete mechanism to trace the disappeared, establish an office for reparations, repeal the draconian Prevention of Terrorism Act, strengthen witness protection laws and policies, and allow Transitional Justice mechanisms the freedom to call on international assistance.
In short, the resolution set out an ambitious Transitional Justice agenda for Sri Lanka: one that, if implemented properly, would certainly mark Sri Lanka out as a rare Asian success for Transitional Justice.
That such a resolution could indeed be agreed on – between the international community and Sri Lanka on the one hand, and between politically victorious Sinhala and Tamil leaders on the other – is a tremendous sign of improvement. And yet, Sri Lanka’s complex politics appears to already be putting at risk the encouraging gains from earlier this month.
Jude Fernando’s perceptive recent article titled “Domesticated Hybrid Court: Will Buddha Prevail Over Hegel & Marx?” perfectly captures the government’s failings with respect to this resolution. Having agreed in Geneva to establish what international lawyers would unhesitatingly term a blueprint for some form of hybrid court, the government’s posturing at home has been inconsistent and woefully shortsighted. Its continuous assertions that the international component in the resolution only involves technical advice and assistance and not participation in trials fly in the face of the clear text of the resolution. The government is entitled to call the proposed court whatever it wants and may choose not to term the court ‘hybrid’ – even the agreement to establish a UN administered hybrid court in Cambodia described the envisaged court as one that would be ‘within the existing court structure of Cambodia’ – but it must not seek to mislead its own constituency on the nature of the international participation in trials to which it has assented.
There are promising signs of the government seeking broad civil society support to create space in the broader Sinhala speaking public within which the resolution could become acceptable, but even these efforts are plagued by a fudging of the international participation question. Instead of patiently doing the work of explaining the importance of a substantial international component in trials relating to serious crimes, the government has chosen instead to play word games, proudly claiming that it has averted the dreaded hybrid court. The current trajectory is a dangerous one. If the government is eventually forced to deliver on its unequivocal promises, it risks allegations of betrayal from within its constituency. If however it reneges on its commitments, it risks international censure from without and will inflame Tamil opinion from within. The cynical point of view – shared by a surprisingly large number of reasonable people – is that the government lacks the basic political will to carry out its commitment, and is deliberately establishing the contours of acceptable international involvement, which would then establish fait accompli of sorts. In other words, domestic opinion is being shaped, and once shaped, will be used to seek leave from its own commitments. These fears will only grow with time. If the government is to prevent them, it must change the terms of interactions with its own people. Simply put, it cannot say one thing in Colombo and another in Geneva, or one thing in Colombo to Geneva and another in Colombo to Colombo.
On the Tamil side of the equation, there are serious political challenges as well. Instead of recognizing the potency of the community’s struggle for justice demonstrated by its Geneva success – a struggle that has made unprecedented strides under the most challenging of circumstances in a relatively short period of time – there is a tendency to assume defeat if only because the government claims victory. In this view, the Sri Lankan state and the Tamil people are locked in a zero sum game, and where the government wins, the Tamils lose. The Tamil press which diligently watches the behaviour of Sinhala politicians has largely concluded that because the government characterizes the resolution as one in support of a ‘domestic mechanism’, a purely domestic mechanism is what has been agreed in Geneva. Meanwhile a few foreign campaigners who worked tirelessly but in the international spotlight during the days of the Rajapaksa regime to keep the accountability agenda alive, perhaps conscious of their declining relevance, are keen to advance the spurious claim that while the OISL Report called for a hybrid court, the resolution did not, and that the final text is some kind of sell-out. Hardline Tamil political parties and their supporters also follow suit.
Much of this confusion within the Tamil discourse on the resolution stems from a fundamental misconception over what a hybrid court means. As scholars have previously pointed out, and as my colleague Rhadeena de Alwis and I explain in our paper on a hybrid court for Sri Lanka, there is no model version of an ideal hybrid court. Instead, they come in different shapes and sizes, and each model must be designed to fit the legal and political context in which it is established. In almost all functioning countries in which such courts exist, they are established within the constitutional structure of the country concerned, often through domestic legislation. While there is no definition of what a hybrid court is, the ‘hybridity’ at play is usually found in the composition of the personnel and lawyers involved in the trials, and the substantive law applied in the court.
The pointless debate over whether the court envisaged by the resolution is a hybrid court or a domestic court with international participation is not merely misplaced as a matter of international legal practice and linguistic common sense, but diverts attention from a series of more fundamental questions.
These questions relate to how such a court would ensure independence of judges, prosecutors and lawyers –
- whether local or foreign? How would the capacities necessary for the trial of system crimes be sourced?
- What would be the role of the UN High Commissioner for Human Rights in supporting this court?
- Who would be responsible for appointments to the office of the prosecutor?
- On what basis would the procedural law relating to the court be adopted, and what would be its content?
- What standing would victims have in the trials, and how would they be protected?
- Would victims be entitled to court ordered reparations?
There are a gamut of similar questions that require rigorous work, application and negotiation. In the final analysis, it is the way in which these questions and similar questions are answered – and not the nomenclature adopted to describe the court – that would determine the success and failure of a special judicial mechanism. These are the questions to which victims and their representatives should focus their attention, for this is where the battle for justice really lies. The task of influencing policy in Sri Lanka is difficult, but it is no longer impossible.
International pressure is indubitably essential if not the most important tool towards that end, but it is not the only one. A strategy of waiting and watching till the government unfolds its mechanisms is doomed to fail. Instead, civil society and victims’ representatives must force open the debate, win the battle of ideas, mobilize pressure and influence decision makers.
On the Tamil front, while remedying intentionally manufactured misconceptions is difficult, it is the responsibility of moderate politicians and responsible Tamil civil society actors to explain properly the workings of the Geneva process and the content and promise of the resolution to their communities. The Tamil National Alliance has a responsibility to mobilize its mammoth ground game – a key contributor to its electoral fortunes – to now create awareness within the communities its represents. Failure to do so would be too costly: disillusionment eventually leads to apathy and disengagement for some, and may encourage others to radicalize. If a motivated, mobilized and sophisticated struggle for justice is to emerge from within victim communities, preventing bitterness, cynicism and defeatism is key.
Right thinking Sri Lankans now have a historic opportunity to pursue redress for victims and roll back decades of impunity and establish the rule of law. To do this however, the political background must provide a conducive platform for implementation. That platform has yet to be created within both the Sinhala and Tamil communities. Unless we fix this problem, we risk failure, and we simply cannot afford failure.