By giving Sri Lanka the two years that the government asked for, the international community has recognized that it is only the Sri Lankan government that can deliver on all of these, and not the international community which can at best play a supportive role. The United States has said it is pleased that Sri Lanka had agreed once again to co-sponsor the resolution, and invited like-minded UN members to demonstrate support for reconciliation and peace in Sri Lanka by adding their names to the list of cosponsors. In a statement, the US applauded the government for its continuing efforts to promote reconciliation.
Although the UN High Commissioner for Human Rights in his report to the UNHRC has called for the establishment of hybrid courts, this is not necessarily the view of the UNHRC which passed the resolution of October 2015 and is proposing to give Sri Lanka two more years to fulfil its commitments made in terms of that resolution which Sri Lanka also co-sponsored. This gives the opportunity for a process of give and take. The international community could give due consideration to the government’s concerns about the hybrid court. Indeed, some of them have said that it is up to the government to interpret what participation means.
It would be unfortunate if the UNHRC resolution of October 2015 is not amended to take into consideration the realities on the ground. The international community could require that the Sri Lankan government should agree to a time bound process of implementation with deadlines for specific commitments. The continued suffering of those who were victims of the war who have not yet been benefited by the proper implementation of the UNHRC resolution is not acceptable. The victims of the war continue to live in difficult circumstances and often out of the mainstream of life, struggling to survive without viable livelihood opportunities while being burdened by uncertainty about the fate of their missing family members. The importance of having a time frame for the delivery of transitional justice targets to which the government has committed itself comes from this reality.
However, the problem for the government with delivering on its commitments in a timely manner is the strong internal opposition it is facing. One source of internal opposition is from the defence establishment which fears that any accountability mechanism will target them. This concern is even more so with regard to a hybrid mechanism which will have foreigners in it. The other source of internal opposition is from the political opposition. They are using the call of the UN and other international actors for hybrid courts to generate nationalistic concerns amongst the general population. They are strident in alleging that the hybrid courts will be biased against the military and those who won the war, and that it will debilitate the sovereignty of the country. The government needs to counter these negative messages by having more positive messages of its own, but has yet to visibly improve its communications strategy.
The basic challenge for Sri Lanka today in regard to dealing with issues of the past is for the government to break free of the shackles being imposed on it by those who oppose the reconciliation process. In a post war setting, such as Sri Lanka’s, those who have fought and won the war and continue to be in positions of authority will very likely be held in high esteem by much of the population. Ensuring accountability for war crimes that might also have been committed will be a major political problem. In Sri Lanka, it is a problem with the potential to even unseat the government if not properly handled. But it is also a problem that needs to be fixed in order to break the cycle of impunity.
The major weapon the opponents of reconciliation have is to bring up the issue of foreign judges and hybrid courts and generate opposition to them amongst the defence establishment and sections of the political elites. They see the transitional justice mechanisms such as the Office of Missing Persons and Truth seeking Commission as laying the foundations for their indictment before hybrid courts. It is a travesty that the Office of Missing Persons (OMP) which was passed into law by Parliament in August of last year still continues to be only on paper. It has not yet been gazetted and so the OMP has not been put into action even though tens of thousands of people continue to be with their lives on hold, waiting for any news about their missing family members.
The draft resolution as currently constituted, which has been presented by the UN Human Rights Council at its ongoing sessions, consists of a rollover, which extends the life of the previous resolution of October 2015 by a further two years. It has been reported that the government sought to also obtain a change in the resolution to reflect its position regarding the issue of international participation in the judicial accountability mechanism. Both President Sirisena and latterly Prime Minister Wickemesinghe have publicly stated that there will be no role for foreign judges as decision makers in hybrid special courts which have foreign and local judges sitting in judgment together. The resolution of October 2015 affirmed “the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers, and authorized prosecutors and investigators.”
On the other hand, the report of the UN High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, states that Sri Lanka should “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.” This is at variance with the resolution of the UNHRC. A reading of the wording of the resolution shows that it neither insisted on foreign participation nor called for a hybrid court. It further states that the judicial mechanism should be a Sri Lankan judicial mechanism.
Foreign Minister Mangala Samaraweera has said that the government cannot bring in foreign judicial officers under the existing constitution but they were also looking at all their options where the recommendation of the UNHRC was concerned. “As a sovereign nation we are entitled to look at all options. We cannot bring in foreign judicial officers under the existing constitution, but we are exploring all our options,” the minister said. He also said that the resolution that is once more to be co-sponsored by Sri Lanka at the UNHRC is the same that was presented previously in 2015. He stated the government had requested for an extension of two years to implement it. He added that "But nowhere is there an insistence for foreign judges to be part of a war crimes tribunal."
Instead of dragging the issue any further, and creating uncertainty within Sri Lanka which the political opposition and opponents of reconciliation can exploit even more, it is best that the government should take the bull by the horns. The government could use the forum of the UN Human Rights Council to make known to the international community that its interpretation of foreign participation does not include the concept of hybrid courts as also stated by President Sirisena and Prime Minister Wickremesinghe. At the same time, it could affirm the value of international participation in the judicial accountability mechanism as a means of increasing the awareness of Sri Lankan judges and lawyers about international law pertaining to war crimes. Instead of being tied up with the problem of hybrid courts, the government can get on with the setting up and implementation of the Office of Missing Persons, Truth seeking Commission and Office of Reparations and other commitments of the Geneva resolution.