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Hybrid courts, ‘integrating international judges, prosecutors,  lawyers and investigators’ is ‘to try war crimes and crimes against  humanity’

The long awaited Report by the United Nations Human Rights Council on Sri Lanka has now been released.  Its contents have grave implications for the destiny of our country, and it is therefore of the utmost importance that the public of Sri Lanka should be fully aware, at an early stage, of the nature and effect of the findings contained in this crucial document.

Since informed public discussion transcending partisan political approaches is an urgent necessity, my purpose is to draw attention to some of the salient features of the Report.


Domestic or International Investigation?
The crux of the series of recommendations by the High Commissioner is his emphatic insistence on the establishment of “hybrid special courts, integrating international judges, prosecutors, lawyers and investigators”.  The mandate of these courts, it is specifically declared, is “to try war crimes and crimes against humanity”.

This demand by the High Commissioner is predicated on his conviction, explicitly articulated, that “For accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism”.  He added: “Victims of past alleged crimes will not find any solace in a purely domestic mechanism”.
It is, therefore, beyond question that what is sought to be established is, by no means, a domestic mechanism but, in every sense of the phrase, an international judicial body.  It would be less than candid to pretend otherwise.

On several occasions in Parliament, in recent months, I pointed out the danger inherent in repeated statements in influential foreign capitals that nothing short of an international tribunal would be acceptable.  The Government, in reply, insisted that these were not authoritative pronouncements, that the Government of Sri Lanka would under no circumstances agree to an international mechanism, that it was under no duty to do so because Sri Lanka was not a signatory to the Rome Statute, and that the firm policy of the Government was to set up a domestic inquiry which would carry out its work within the framework of our national legal system.

What has happened, however, is the very opposite of this.  Not only is the establishment of an international court proposed as the core recommendation by the Council, but there is the further ominous comment that the international investigation “should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts”.

Is Sri Lanka, then, to be put on a par with situations involving, for instance, the international war crimes tribunal in West Africa called the Special Court for Sierra Leone and similar tribunals which were established in respect of  the former Yugoslavia, Liberia and Cambodia?  Is this equation to be made, notwithstanding the clearly demonstrable and fundamental differences between these contexts and the Sri Lankan situation?  If we are prepared to do this, are we fully mindful of the dire consequences attendant on this course of action for the Armed Forces of Sri Lanka?

The Government of Sri Lanka responded immediately to the Report, inter alia, in the following terms:  “The Government recognizes fully that this Report represents a human rights investigation and not a criminal investigation”.  Unfortunately, this is not entirely correct.  The High Commissioner has been far from reticent about the gravity of the crimes allegedly committed by the Armed Forces and the stark issue of criminal responsibility.  He stated at the Press Conference in Geneva:  “The severity of the crimes was most astonishing.”  He also remarked: “Crimes of a sexual nature made harrowing reading”.

On the subject of genocide – indisputably the most heinous crime known to international law – the High Commissioner, while stating that this is not something they perceived to have occurred in Sri Lanka at this stage, went on to declare: “That is not, however, to say that at a subsequent stage, it is implausible.”  The Report specifically says that, if established before the hybrid court that is proposed, “many of these allegations may amount, depending on the circumstances, to war crimes.”

 
The Gravest of Findings Against Military Personnel
The High Commissioner proclaimed, at a media briefing in Geneva, that the findings are “of a most serious nature”, involving as they do a pattern of systemic and flagrant violations.  The Report sets out, in unmistakable terms, the finding that there are reasonable grounds to believe that the gravest offences were committed by Sri Lanka’s Armed Forces.

The following assertions, quoted verbatim from the Report, are amply illustrative of the threshold of criminal liability envisaged and the resulting depth of peril.  “There are reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in unlawful killings carried out in a widespread manner against civilians.”  “OISL documented long-standing patterns of arbitrary arrest and detention by Government security forces, which often reportedly led to enforced disappearances and extrajudicial killings.”  “OISL documented brutal use of torture by the Sri Lankan security forces”.  “The information gathered by OISL provides reasonable grounds to believe that rape and other forms of sexual violence by security forces personnel was widespread”.  “The security forces, police and intelligence services have enjoyed near total impunity”.  

These sweeping statements speak for themselves and leave no room for doubt as to the intended consequences.  The extreme seriousness of these prima facie findings, and the consequent potential exposure of military and police personnel to the highest degrees of criminal liability and punishment, is quite apparent.  


On What Kind of Evidence?
It is, then, quite legitimate to ask on what basis these far-reaching and gravely prejudicial conclusions have been arrived at.
The purported evidence, on which these critical findings are based, is shrouded in secrecy.  The identity of the persons who are said to have testified, is protected from disclosure for extended periods.  Lurking in the shadows and assured of anonymity, they are free to make allegations for political or other purposes, with no inhibition whatever.  There is, consequently, a breach of the requirements of fairness and transparency even at the basic level.

Inevitably, this brings into question very sharply the reliability and probative value of this purported evidence.  I am constrained to point out, with deep sadness, the wholly fictitious nature of some conclusions which may well presage the most devastating results.  The Report finds that hospitals and other civilian facilities were not used by the LTTE for military purposes.  This is palpably false.  The Report, moreover, accuses the Government and the Armed Forces of “depriving the civilian population in the Vanni of basic foodstuffs and medical supplies essential to survival”.  If true, this would constitute a war crime, with all the penalties which that entails.  

These are findings rooted at best in opaque testimony proffered by interested parties.  By contrast, no less a personage than the Head of the United Nations System in Sri   Lanka at that time, Mr. Neil Buhne, has publicly acknowledged the substantial success of the Sri Lankan Government’s efforts in the most challenging circumstances. His observations are on record.  Examples are provided by his address at the Sixty-Fifth U.N. Day Celebrations (at which I was Chief Guest) in October 2010, the Press Release by the U.N. Colombo Office on 26 August 2010 and the letter titled “U.N. Support for North Re-Settlement”, addressed by Mr. N. Buhne to the Secretary to the Presidential Task Force for Resettlement, Development and Security in the Northern Province, Mr. S.B. Divaratne, on 8 April 2010.

There is, as well, another remarkable omission.  The Report fails to take into account in any way the significant fact that arrangements for the despatch of food and medical supplies to the Northern Province were overseen at the time by a Committee which included, in its composition, the Ambassador of the United States of America, the Head of Delegation of the European Commission, the Ambassador of Germany, the High Commissioner of the United Kingdom, the Ambassador of Japan and no fewer than eleven Specialized Agencies of the United Nations.


The Snares and Pitfalls of “Special” Courts
My concern, at bottom, is about the intrinsic infirmity of the evidence, by recourse to which the most serious aspersions are sought to be made against Sri Lanka’s political and military authorities.  

This is all the more reason to resist, with the utmost vigour, “special” courts to try these persons for the gravest criminal offences.  Certainly, the rule of law must be upheld and enforced without discrimination.  One may, however, be forgiven for resenting the patronizing reflection made in the Report:  “The unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready or equipped to conduct an independent and credible investigation”.  

This country is painfully familiar with the total havoc and injustice wrought by “special” courts.  The egregious example, perhaps, is the Criminal Justice Commission which deprived the late Prime Minister Sirimavo Bandaranaike of her civic rights.  It is a matter of serious doubt whether this is the way the public of Sri Lanka would like to go with regard to dubious allegations regarding genocide and war crimes.  


A Quantum Leap?  Proposal to Subject Sri Lanka to the International Criminal Court
There is manifest danger in some of the recommendations made in the Report.  For instance, Sri   Lanka is required to accede to the Rome Statute of the International Criminal Court.  This means that a foreign court, for the first time since the abolition of appeals to the Judicial Committee of the Privy Council more than half a century ago, will have the power to exercise criminal jurisdiction over our political and military personnel.

The Supreme Court of Sri Lanka has already held, in no uncertain terms, that this is a brazen infringement of our nation’s Basic Law.  Contrary to the Government’s recurring assertions, the international dimension of the proposed investigation – and the envisioned trajectory for the future – are plainly visible.  The Conclusions and Recommendations of the Report clearly state that investigation and prosecution should be “notably under universal jurisdiction”.  Are we now asked to believe that this is a domestic exercise?

In the meantime, in a recommendation that is extraordinary for its oppressive and altogether unjust impact, the Report recommends to the U.N. System and to Member States that they should “apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes”.

On the most tainted evidence imaginable, then, Sri Lanka’s police and military personnel, simply because they are Sri Lankan, are to be deprived of the opportunity to earn, to gather knowledge and to uplift themselves in life.


Vindication or Capitulation?  
What emerges is the spectacle of a potential national calamity arising from a policy, the pivot of which has been the consistent desire to placate, accommodate and acquiesce.  The prize aimed at was persuasion of the sponsors of three consecutive Resolutions against Sri Lanka, to settle for a domestic inquiry.  Obviously, this has failed.

The tragedy, from a national standpoint, is that, once a policy of admission, repentance and commitment to “non-recurrence” is embarked upon, it cannot realistically be reversed mid-stream.  The march of events could well take place with the inevitability of a Greek tragedy.  The need to be forewarned is, therefore, vital, bearing particularly in mind that the Report calls on Council Members “to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level”.  The Sword of Damocles is menacing.  

What gives rise to profound regret is the realization that none of this was unavoidable.  Rather than expose our Armed Forces to the dangers looming before them, we had every opportunity to use well-established principles of international humanitarian law and international human rights law, applied with reasonable uniformity in precedents across the globe, to make out a cogent, perhaps even unassailable, case for the protection of our military personnel.  A great deal of productive work had already been done on this, with the focus on the excruciatingly difficult hostage situation which had developed as a result of deliberate action by the LTTE in the closing stages of the war.  Sadly, we seem to be treading instead a different path fraught with the greatest danger.