The fine balance of hybrid courts

Law courts (2)The report of the Office of the High Commissioner of Human Rights (OHCHR) Investigation on Sri Lanka (OISL) provides substantial confirmation that grave and horrific crimes were perpetrated in the course of the protracted civil war which ended in 2009.

However, its authors take the precaution of calling it a ‘human rights investigation’ rather than a ‘criminal investigation’, setting a boundary for its legal consequences: it requires a regular judicial process to fix criminal liability and the findings broadly indicate that the Sri Lankan security forces, along with the paramilitary groups aligned to them, and the Liberation Tigers of Tamil Eelam (LTTE) violated the norms of war, showed scant regard for civilian lives and resorted to unlawful killings. It lays bare instances of torture and sexual violence. It speaks of continuing harassment by the military even after the change of government, a change that it acknowledges as positive.

The report, released by the UN High Commissioner for Human Rights, is due to be discussed at the fag-end of the ongoing 30th Session of the UN Human Rights Council in Geneva, and may be the subject of a ‘consensus resolution’.

It is tempting to dismiss the report as containing nothing new, as it merely confirms earlier reports that the war came to an Armageddon-type end in May 2009, with an estimated 40,000 people dying in the last days. It admittedly used only ‘reasonable grounds to believe’ as the standard of proof, and did not record oral testimony from anyone inside Sri Lanka to avoid the risk of reprisal against witnesses and their families.

However, it has reviewed many documents, interviewed many witnesses abroad, and considered complaints in writing, including some against named perpetrators of specific offences. It had access to documents of the Sri Lanka Monitoring Mission, which was present on the ground between 2002 and 2007 to oversee the working of the February 2002 ceasefire agreement.

The report’s merit is that it identifies a clear pattern in the crimes and collates considerable material and places it in context. “The sheer number of allegations, their gravity, recurrence and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicate, all point towards system crimes.”

Open to interpretations

In its implications for Sri Lanka, the report is open to different interpretations. It can be seen as soft in that it does not name perpetrators, refrains from giving ballpark casualty figures and using the term ‘genocide’. It stops short of calling for an international investigation, preferring instead to advocate a ‘hybrid court’ — a mechanism utilised in aid of transitional justice after conflicts ended in Kosovo, East Timor and Bosnia and Herzegovina.

In Tamil Nadu, there is already a body of opinion that the recommendation is aimed at bailing out the island nation and avoiding an international probe. The United States and India are seen to be close to the present national unity government, jointly run by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, and the predictable suspicion is that the two will come together to stall an ‘independent, international inquiry’. On the other hand, the hybrid court proposal is bound to be seen by sections in Sri Lanka as an infringement on Sri Lanka’s sovereignty, and an attack on the integrity of its judicial system.

In substance, the report says the Sri Lankan judicial system is incapable of handling a comprehensive criminal inquiry into pervasive human rights violations and that it requires international expertise, commitment and resources to accomplish the task. Rather than fault this conclusion, it will be useful to recall why such a situation came about.

It is apparent that the Mahinda Rajapaksa regime’s sustained hostility towards the international community has impacted adversely on overseas perception about the country. In normal circumstances, a nation state may have a legitimate grievance against the international community and multilateral institutions, but in the Sri Lankan context, it was ill-suited to the country’s interests, as it had benefited greatly from global goodwill while pursuing its objective of wiping out what it believed was terrorism.

No country in history has been showered with as much international goodwill, besides moral, material and diplomatic support, as Sri Lanka enjoyed in the course of its often brutal war. Both its peace process and war were underwritten by a cast-iron guarantee by the global powers of its territorial unity. The breadth of the international support for its peace process with the LTTE from 2002 onwards was such that the militant group suspected a global gang-up against its separatist goal.

The current situation, in which many countries believe that Sri Lanka failed to deliver either a political settlement to the ethnic question or render justice to the victims of war, is a direct consequence of the hostility with which Sinhala nationalists responded to the call from the international community for peace and justice and ignored genuine external concern over the post-war situation.

The undermining of democratic institutions under the Rajapaksa regime, the removal of the Chief Justice, and impunity granted to killers of political leaders and journalists also contributed to the outcome. The current leadership recognises this and hence its apparent cooperation with the multi-lateral accountability process.

Idea of a hybrid court

Therefore, some international presence in a human rights probe against senior political and military leaders responsible for possible war crimes is inevitable in the Sri Lankan context. However, one also needs to examine the desirability of such hybrid courts in a wider context: not all countries recovering from conflict suffer from the total absence of rule of law and complete collapse of institutions.

A 2008 UN document on rule-of-law tools for post-conflict societies defines hybrid courts as “courts of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.”

Given that Sri Lanka’s judiciary and its processes were only undermined, and not completely dismantled by war, the idea of a hybrid court there requires careful handling. Nothing in the proposed mechanism should seek to discredit the entire institution. Rather, its processes and resources should be co-opted in such a way that the international presence is no more than a guarantee for the court’s independent functioning.

It should focus on creating an atmosphere conducive to the rule of law — something that Sri Lankan institutions failed to uphold in recent years. The idea of transitional justice is crucial to the political process to find a solution to the ethnic question. The demonstrator effect that the hybrid courts may have on domestic judicial processes is as important as the justice they dispense with to the long-suffering victims.

As for India, it should support the initiative to bring justice and reparations to the victims instead of looking askance at the process from the standpoint of national sovereignty. The stand of political parties in Tamil Nadu strongly in favour of an independent, international investigation is in line with the expectation of humanists and activists across the world. However, they should recognise that having a credible probe that is feasible in a given context is more important than the specific mechanism used.

As of now, a purely international court may not be possible, while a purely domestic mechanism is undesirable. In the Sri Lankan context, it will be a big step forward if the hybrid courts come into being.(The Hindu)

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