An Ad Hoc Hybrid Special Court for Sri Lanka: What Does It Take?

The beginning of the conflict between the Sri Lankan government and the Tamil Tigers dates back to colonial times, when Sri Lanka was still called Ceylon and was under British rule. In the first half of the 20th century the two main ethnic groups, the Sinhalese and the Tamils, worked closely together in government. In 1919 the major political organizations of the two groups even formed the Ceylon National Congress together. Nevertheless, tensions existed between the two groups, first on the political level and subsequently in the streets of Sri Lanka. Eruption of violence started in 1977, when anti-Tamil riots broke out after the general elections, which left 300 Tamils dead. The civil war itself broke out in 1983, with the murder of thirteen Sinhalese soldiers by the Liberation Tigers of Tamil Eelam (LTTE) and anti-Tamil violence taking place in Colombo. During this civil war between 80,000 and 100,000 people were killed, half a million persons were internally displaced and the Working Group on Enforced or Involuntary Disappearances reported 12,536 cases of enforced disappearances. Both sides committed large scale war crimes. Both the LTTE and the Sri Lankan government engaged in the recruitment of child soldiers, enforced disappearances, extrajudicial killings and the use of human shields. The war finally ended in 2009, with the LTTE admitting defeat on the 17th of May.

National and International Responses

Even though war crimes were committed by both sides of the conflict, it cannot be said that there were no attempts at accountability from within Sri Lanka. Indeed, multiple mechanisms were created to investigate the allegations. A Presidential truth commission on ethnic violence was created in 2002, to investigate crimes committed between 1981 and 1984, and in 2006 a Presidential commission of inquiry was set up to investigate certain high-profile assassinations. Other examples include the International Independent Group of Eminent Persons, the national Human Rights Commission and several regional commissions of inquiry. Nevertheless, these commissions had little impact: they were created with a limited mandate, faced strong resistance or criticism, or their recommendations were never implemented. Furthermore, as some these commissions were established while the war was still on-going, their ability to conduct full investigations was limited. Finally, in 2010, President Rajapaksa set up the Lessons Learnt and Reconciliation Commission (LLRC), which was mandated to investigate events that took place between 2002 and 2009. Again, this commission received international criticism for its limited mandate and its perceived bias.

The international response has also been met with criticism. The war was not formally addressed by the United Nations Security Council – apart from a press release in May 2009, in which the Security Council expressed its grave concern over the worsening humanitarian crisis in Sri Lanka. Although Sri Lanka lost its seat in the UN Human Rights Council in 2008, the UN Human Rights Council adopted a resolution in 2009, proposed by Sri Lanka, which commended the Sri Lankan government for its efforts to protect civilians and its commitment to the promotion and protection of human rights. This resolution was strongly criticized by human rights organizations. However, in 2010, the UN Secretary-General created a Panel of Experts on Accountability in Sri Lanka (Panel of Experts) after international calls for accountability. This Panel of Experts would advise the Secretary-General on accountability in relation to the final years of the civil war, and would review the actions of the United Nations in this regard. The Panel found evidence of “a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.”

In March 2014, the Human Rights Council requested the UN High Commissioner for Human Rights (OHCHR) to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka […] and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated […]” between February 2002 and November 2011. The OHCHR subsequently created the OHCHR Investigation on Sri Lanka (OISL). On 16 September 2015, two reports were published: one report by the OISL, which provides a detailed overview of the investigations and the alleged crimes, and one report by the OHCHR, which provides a summary of the investigations. Both reports also provide an extensive list of recommendations, one of which stands out. The OHCHR OISL recommends that the Government of Sri Lanka:

 “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, defense office and witness and victims protection program, and resource it so that it can promptly and effectively try those responsible.”

An Ad Hoc Hybrid Special Court

The international community has created a plurality of ad hoc hybrid courts in recent times. A hybrid court can be described as a judicial institution with both domestic and international elements, created after a period of turmoil to ensure accountability for crimes committed during that period. Examples of such hybrid institutions include the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, the Serious Crimes Panels in the District Court of Dili in East Timor, the Regulation 64 Panels in the Courts of Kosovo, Section I for War Crimes in the Court of Bosnia and Herzegovina and most recently, the Extraordinary African Chambers in the Courts of Senegal. Every one of these tribunals is unique, as every institution has its personalized “mix” of international and domestic elements. The hybridity of such an institution can be discerned in multiple facets, ranging from the seat of the court, the composition of chambers and the applicable law, to its relationship with national courts, the composition of its budget and the nationality of its Prosecutor. The exact hybridity of an internationalized court is a very fine balance and depends on multiple factors.

What is needed before such a court can be created is an extensive period of negotiations. These negotiations must be as inclusive as possible and should involve representatives of the international community, the government of Sri Lanka, representatives of both parties and their victims – through NGOs and civil society. It is important that all these parties are involved in the negotiations on a hybrid tribunal, to ensure that any future court can receive their full support. After an agreement on the creation of a court is reached, a full examination and assessment of the Sri Lankan system must follow. This includes an assessment of its judicial capacity – are Sri Lankan laws in line with international requirements? Do these laws incorporate crimes under international law? Does Sri Lanka have trained judges who are experienced and unbiased? Are there courtrooms available? – as well as an examination of the security situation – can victims and witnesses be protected? Can judicial personnel be protected? Can trials be held without fear of government interference? Furthermore, the jurisdiction of the tribunal must be clearly established – over which period shall the court have jurisdiction? Which crimes will fall within the jurisdiction of the court? Over which persons shall the court have jurisdiction? Finally, the parties must agree, in advance, on the budget to be provided for the court. If the court does not have sufficient resources, it will not be able to function properly. Most importantly, agreement must be reached on the main purpose of the court: what do the parties want to court to have established at the end of its mandate? Accountability for high-level perpetrators? Reconciliation between the different ethnic groups? End impunity for international crimes? It is only after agreement is reached on these issues that negotiations can start on the exact hybridity of the tribunal.

A hybrid court will not be created in a fortnight. Even though hybrid tribunals are regarded by many as the go-to solution for any situation where accountability is needed, it is important that sufficient time is dedicated to its creation. Hybrid courts come with many pitfalls, as has been shown by the internationalized courts in existence. If the international community can learn from its mistakes and can keep expectations realistic, it may be able to ensure accountability for the crimes committed in Sri Lanka.