Investigating human rights:
'Hybrid' mechanism will ensure int'l support
The Report of the Office of the United Nations High Commissioner for
Human Rights (OHCHR) on Promoting Reconciliation, Accountability and
Human Rights in Sri Lanka and, the report of the OHCHR investigation on
serious human rights abuses, allegations of war crimes and crimes
against humanity in Sri Lanka between February 2002 and May 2009 (known
as OISL) is finally out after being deferred from its original date of
release of March 2015 on the request of the Government of Sri Lanka.
Long awaited and the focus of high expectations, deep concern and,
even fear in some quarters, the OISL report now takes centre stage as
far as the debate and discussion on transitional justice and its four
pillars of justice and accountability, truth, reparations and guarantees
of non-recurrence are concerned.
The GOSL request for deferral notwithstanding, the current government
unlike its predecessor acknowledges the need for accountability and a
transitional justice process. In this connection it has pledged to
establish a "credible domestic mechanism".
At the ongoing UNHRC sessions in Geneva, this was reiterated by the
Foreign Minister along with the announcement that there will be a
platform for truth seeking and a permanent Office to deal with the issue
The accountability mechanism, the minister subsequently announced,
will be set up within a period of 18 months and its establishment
preceded by public consultations, which will commence in October of this
year until January 2016. The GOSL has also maintained that it will seek
international technical assistance.
There will also be a consensus resolution in the Council at the end
of the current session. It will moved jointly by the GOSL and the US.
The precise language of the resolution is yet to be agreed upon.
The OISL is the first report of an investigation into allegations of
war crimes and crimes against humanity in the war in Sri Lanka mandated
by a resolution of a UN body and done under its aegis. Additionally
significant is that the current GOSL has not rejected it out of hand. In
its response to OISL, the GOSL:
"Takes note also of the Report of the OHCHR Investigation on Sri
Lanka (OISL), recognises fully that this Report represents a human
rights investigation and not a criminal investigation, and will ensure
that its content as well as recommendations receive due attention of the
relevant authorities including the new mechanisms that are envisaged to
be set up."
The key finding of the OISL, given its gravity is worth quoting in
"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.
While it is has not always been possible to establish the identity of
those responsible for these serious alleged violations, these findings
demonstrate that there are reasonable grounds to believe that gross
violations of international human rights law, serious violations of
international humanitarian law and international crimes were committed
by all parties during the period under investigation.
Indeed, if established before a court of law, many of these
allegations may amount, depending on the circumstances to war crimes if
a nexus is established with the armed conflict and /or crimes against
humanity, if committed as part of a widespread or systematic attack
against a civilian population. In some of these cases, the alleged acts
were apparently committed on discriminatory grounds."
Since the release of the report and in the months preceding it,
debate and discussion such as there has been, has focused on the issue
of the nature and composition of the accountability mechanism in
particular - as to whether it should be exclusively international,
domestic or a hybrid combining both elements.
The GOSL has taken the position that it will be domestic. Sections of
civil society and Tamil political representatives have long insisted
that it should be exclusively international, citing the failure of past
domestic mechanisms and illustrating the considerable lack of faith and
trust in domestic institutions and processes on this score.
Other sections of civil society have recognized that whilst there are
serious trust and confidence issues around an exclusively domestic
mechanism, emphasis on an international one and referral to the
International Criminal Court (ICC) is highly impractical and
Sri Lanka is not a member of the ICC and it would need a UN Security
Council resolution to take the issue to the ICC - a resolution, which
would almost certainly attract the veto of at least one permanent member
of the Security Council, especially since the US Government has
announced its support for a domestic mechanism.
In any event, the disposition of the international community would be
to see all domestic remedies exhausted.
The OISL calls for a hybrid mechanism and this is where the debate
will now centre. OISL recommends that the GOSL:
'Adopt a specific legislation establishing an ad hoc hybrid special
court, integrating international judges, prosecutors, lawyers and
investigators, mandated to try war crimes and crimes against humanity,
with its own independent investigative and prosecuting organ, defence
office and witness and victim protection programme, and resource it so
that it can promptly and effectively try those responsible;'
The arguments against any international component in an
accountability mechanism will spring from a narrow notion of sovereignty
dating back to the Treaty of Westphalia enshrining it as the highest
principle of collective political organization and of international
relations, to violations of a constitution interpreted just as narrowly
to be based upon it to those of a 'I told you so "nature that such a
mechanism is implicitly if not explicitly designed to "turn war heroes
into war criminals". To put it mildly, the perspective and requirements
of transitional justice are lacking here.
No mechanism that is exclusively domestic is likely to be seen as
credible as far as the families of victims are concerned and
transitional justice if it is to mean anything must be victim-centred.
Independence, expertise and experience are also issues here. What is at
stake are universally recognized crimes and our dealing with them,
seriously, fairly and squarely is at the heart of our commitment to a
country that will reconcile and go forward in unity; a society that is
decent with the governance it desires and deserves.The degree of
hybridity in an accountability mechanism is pivotal to this.
This is the twenty first century and the government in this country
has woefully failed some of its peoples. We are members of the
international community where sovereignty is tempered with
interdependence and the seeking of international assistance is not a
mark of subservience or incompetence but one of maturity and strength to
admit we need help.
We need help. To help ourselves.