Initially this clause in the UNHRC resolution was interpreted in the light of the report of the expert panel commissioned by the UN Human Rights Commissioner. This report recommended a hybrid court, which would have both Sri Lankan and international judges. The international community, and Tamil leaders in particular interpreted the UNHRC resolution to mean that international judges would be participating as sitting judges who would deliver judgments as to whether war crimes took place or not.
At an early meeting not long after the co-sponsoring of the UNHRC resolution by the government, Prime Minister Ranil Wickremesinghe addressed civil society activists and explained to them that Sri Lankan judges sat on international tribunals and there was nothing new in international judges taking part in Sri Lankan investigations. This has occurred when Prime Minister SWRD Bandaranaike was assassinated in 1958 and also again in 2007 when President Mahinda Rajapaksa invited an eminent group of international experts to advise a presidential commission into serious human rights violations.
However, the joint opposition’s success in mobilizing large numbers of people to its rallies, and its use of the UNHRC resolution to whip up doubts about jeopardising of the country’s sovereignty under the current government catalysed a rethinking of government strategy with regard to the accountability issue. President Maithripala Sirisena began to publicly state that no foreign judges would sit in judgment on war related human rights violations, and this was followed by Prime Minister Ranil Wickremesinghe assuring the military on similar lines. Now the international community that pushed for the UNHRC resolutions appears to be taking the same stance. In quick succession representatives of the United States and the European Union have made public pronouncements on the issue.
Speaking to journalists while in Sri Lanka last week visiting US assistant secretary Tom Malinowski said that the Sri Lankan government will determine the structure of the domestic mechanism and the international community will respect decisions taken by the current government. He has been quoted as saying "These are complicated issues and there needs to be a process of consultation with all in order to ensure these things are done in a way that earns confidence of the people." He said the U.N. resolution respected Sri Lanka's sovereignty. "Under the resolution, the government of Sri Lanka will determine the structure and the composition of the court," he said, noting that Sri Lanka had made a commitment to include some international participation in the investigation.
Acting EU Head of mission in Colombo Paul Godfrey was similarly reported as saying that the European Union did not insist on foreign judges on the judicial mechanism to probe alleged war crimes to assure an element of credibility, instead they would wait and see what the government comes up on its own. He added that the EU will push for international judges to the proposed special court in Sri Lanka's transitional justice mechanism only if the indigenous system lacks credibility and independence.
In 2009 when the United States first sponsored a draft resolution to compel SrI Lanka to subscribe to international standards of accountability for war crimes, the situation in both Sri Lanka and the world was different to what it is today. At that time the government of President Mahinda Rajapaksa was dismissive of human rights violations and rejected them even going to the extent of declaring that there were zero civilian casualties. It is unfortunate that due to this cavalier attitude Sri Lanka became a test case of whether the international community could or could not rein in its member states on issues of respect for human rights.
In addition the Rajapaksa government also sought to export the Sri Lankan model of ending ethnic conflicts through a military solution. The first visit of President Rajapaksa to a foreign country was to Myanmar where met with the Chairman of the State Peace and Development Council of the Union of Myanmar, Senior General Than Shwe and with Prime Minister General Thein Sein. Myanmar has been involved in combating ethnic insurgencies for decades in virtually all of its states, with 17 ethnic armed organisations in operation at this time.
However, the adverse international fallout that came to Sri Lanka due to the successive UNHRC resolutions against it would have served as a warning to other countries not to emulate Sri Lanka on account of the high political and human costs. Instead of President Rajapaksa’s offer to provide Myanmar with Sri Lanka’s experience in combating ethnic insurgency, Myanmar has been following a different policy of ensuring democratization by means of ceasefires with the ethnic armed organizations and has also a nationwide ceasefire agreement which includes a framework for political dialogue that includes a pledge of federalism as a political solution.
Today Sri Lanka has different and more positive messages to offer countries such as Myanmar which are grappling with problems that Sri Lanka has dealt with and overcome in some cases. Foreign Minister Mangala Samaraweera has stated that the government is coming up is a unique Sri Lankan model and expressed his confidence that it would be a blueprint for transitional justice mechanisms of the future in other parts of the world. An example is the ongoing peace process in Myanmar. Myanmar will need to have transitional justice processes in place even as it reaches accommodation with the ethnic armed organizations due to the serious violations of human rights that have taken place due to the long years of insurgency and military rule.
Sri Lanka is seen as a fraternal Buddhist majority country, with which Myanmar has longstanding Buddhist ties dating from the time of King Vijayabahu 1 in the 11th century to the restoration of Buddhism in Sri Lanka in the 18th century with the help of Buddhist monks from Amarapura and Ramanna. How Sri Lanka handles its transitional justice process and deals with the past, and with the issue of accountability, can influence the direction that Myanmar takes.
The change of government that took place in Sri Lanka in 2015 and the cooperative attitude of the new government in regard to meeting international standards whether in war time accountability or fishing practices have reduced the need for international pressure. It has also oriented the international community to restore to Sri Lanka some of the privileges it enjoyed in the past including access to their markets and to tariff concessions.
From the perspective of the international community, Sri Lanka has taken concrete steps forward in its reform, democratization, and reconciliation agenda, including through the bill to establish an Office of Missing Persons, ratifying the convention on disappearances, additional land releases by the military and through the President’s directive on arrests under the Prevention of Terrorism Act and progress in work on the constitution. In the present context the international community is giving priority to help stabilize the government rather than to provide its political opponents with the opportunity to derail it and thereby negate the positive steps it is taking towards constitutional reform and to long term solutions.