In the wake of a hybrid judicial mechanism being rejected outright by Sri Lanka, this article digs in, regardless of its unconscionable behavior, to examining what Sri Lanka must do NOW, the obligations the country promised to deliver and its blatant duplicity, the Council’s missed opportunity in Geneva and what should have been the outcome of the 34th session as a result of Sri Lanka’s wilful non-compliance and to exploring the avenues for justice available for Tamils..
What Sri Lanka Must Do NOW
On the 23rd of March 2017 Sri Lanka co-sponsored Resolution hrc34/L1 (hrc34/L1) on Accountability, Reconciliation and Human Rights in Sri Lanka, incorporating hrc30/1 (hrc30/1) it previously co-sponsored on 1st October 2015 but failed to comply, giving new impetus to hrc30/1 in the form of hrc34/L1 – which was adopted by the UN Human Rights Council (Council) again without a vote. It is now incumbent upon Sri Lanka, as per its undertaking, to BEGIN the task of delivering the commitments it agreed under both resolutions – immediately. That would mean getting down to the important business of enacting legislation,appointing a special counsel, opening a special counsel’s office, establishing a hybrid court and filing war crimes charges, beginning – NOW.
The Obligations Sri Lanka Promised to Deliver and HC’s Call for Hybrid Court Same
The place to look, to have a better insight into what Sri Lanka’s obligations entail, is to read both, Operative Paragraphs 6 and 7 found in hrc30/1 and Operative Paragraph 4 found in hrc34/L1in CONJUNTION with the High Commissioner for Human Rights, Prince Zeid bin Ra’ad al-Hussein’s ‘Conclusions and Recommendations’ under Paragraph 67 (a-j) captioned ‘Legislation and Justice’ in his February 2017 Report – the one he submitted to the Council on Sri Lanka – the obligations in question cover the core provisions relating to both, for one, the creation of legislation to, “criminalize war crimes, crimes against humanity, genocide and enforced disappearances,” and the other, the investigation, prosecution, trial and punishment of those responsible for such ‘Mass Atrocity Crimes’.
Not only has the Council under hrc34/L1 – Operative Paragraph 4 requested the High Commissioner to assess the progress of Sri Lanka’s implementation of his recommendations, it must be noted, the recommendations itself got the full endorsement of Member States – those that gave Sri Lanka a two year extension of the timeline for fulfillment of commitments under the resolutions, given with the expectation that the recommendations would be acted upon – with Member State after Member State, in their statements, during discussions at the Council, urging Sri Lanka to heed the High Commissioner’s recommendations.
This being the case, quite apart from the fact that the High Commissioner’s comprehensive 2017 report, based on proper assessment of all factors, gives form and meaning to hrc30/L1.
It’s worth mentioning at this point, notwithstanding hrc34/L1 – Operative paragraph 4 and the call by Member States for Sri Lanka to heed the High Commissioner’s recommendations, Deputy Foreign Affairs Minister of Sri Lanka, Harsha de Silva, backing away from a hybrid mechanism and finding somehow some ambiguity in the words in hrc30/1, when none exists – is now insisting, undoubtedly in error, that Sri Lanka did not sign up to a hybrid court. Reading the requisite sections, there is no denying the High Commissioner’s recommendations are the right interpretation of Operative Paragraph 6 (and 7).
Looking at hrc30/1 – Operative Paragraph 6, it becomes clear, the drafters undeniably were providing for a hybrid court: The Council, “notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel… affirms that a credible justice process should include independent judicial and prosecutorial institutions.. and also affirms in this regard the IMPORTANCEof PARTICIPATION in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”
And then reading that Operative Paragraph 6 in CONJUNCTION with the High Commissioner’s core recommendations, paragraph 67 (a-j) given in full here below, it becomes even more abundantly clear that the Council and the High Commissioner were on the same page with the High Commissioner’s Recommendations calling for Sri Lanka to:
Implement the recommendations of the Special Rapporteur on the independence of judges and lawyers following the country visit in April-May 2016;
Review the Victim and Witness Protection Act with a view to incorporating strong safeguards for the independence and effectiveness of the victim and witness protection programme, in accordance with international standards;
Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court;
Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility;
Consider, as part of the constitutional reform process, the inclusion of a transitional clause to facilitate the establishment of transitional justice mechanisms and offer guarantees of redress to all those whose rights have been violated;
Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law, and provide it with the resources necessary to enable it to try those responsible promptly and effectively;
Strengthen the forensic capacity of the police and judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;
Replace the Prevention of Terrorism Act by legislation that adheres to the best international practices;
Review all cases of detainees held under the Prevention of Terrorism Act with the aim of either releasing them or bringing them immediately to trial; establish a moratorium for the use of the Act for new arrests until it is replaced by legislation that adheres to international best practices; and review the cases of those convicted under the Act and are serving long sentences, particularly where convictions were based solely on confessions;
Promptly investigate and prosecute all allegations of torture and other gross human rights violations, and give the highest priority to long-standing emblematic cases so as to regain public confidence in the justice system; and implement fully the recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and of the Committee against Torture.
It must be borne in mind, a, c and e of paragraph 67 above, are additional recommendations, among other, the High Commissioner made in his February 2017 report under the caption, Legislation and justice.
High Commissioner Recommends Sri Lanka Accede to Rome Statute, TGTE’s Call