Sri Lanka has recently announced that it will create a new court to examine abuses which allegedly transpired during the country’s civil war. The government has noted that this is going to be a domestic mechanism, but hasn’t ruled out the possibility of some international involvement. The abrupt announcement of this special court came as a surprise to many. Former president Chandrika Kumaratunga has stated that the court will commence its work either later this month or in January.
At this point, a few matters are worth considering. For starters, what does the creation of this special court mean in terms of the consultative processes surrounding transitional justice which remain in their incipient stages? A credible, thorough consultative process likely would have taken a number of months and yet the government has already come out and announced the creation of this special court.
In addition, Sri Lanka still doesn’t have certain laws, including war crimes and crimes against humanity, on its books. Presumably, those laws would need to be incorporated into domestic law imminently. What are the government’s expectations in terms of the timing and sequencing of this? Is it something that has already been discussed in detail? Since we’ve been told that the court could be set up in just a few weeks, would the government prioritize this issue over other elements of the reform agenda?
The announcement of this new court means that Sri Lanka will finally begin adding a degree of specificity towards its transitional justice approach. Since the latest U.N. Human Rights Council resolution on Sri Lanka was passed on October 1, a major unanswered question has been the extent that international actors will participate in the process. This is a delicate political issue and the administration of Maithripala Sirisena would never accept overwhelming international participation. Having said that, the forthcoming creation of this new court will compel the government to begin adding specifics about how it sees transitional justice working in practice. Colombo will need to clarify how foreign judges, prosecutors, investigators and lawyers will be involved. More specifically, how will these individuals be selected? How many will there be? Does the government already have certain people in mind? And will they have any real power?
Lastly, since it appears that Kumaratunga is overseeing this initiative, it’s worth noting that she was president of Sri Lanka from 1994 to 2005. Will the court’s temporal mandate include time when she was in power? Is so, what might that mean for truth and justice?
Indeed, there are many questions that will need to be answered — and soon.