On the one hand, there are technical and credibility-centred reasons for having international participation in an accountability process that concerns the war. The first is that crimes associated with war are not part of Sri Lanka’s present legal framework. War crimes are a well developed part of international law but not of Sri Lankan law. Therefore the Sri Lankan legal community has little or no experience of dealing with the laws relevant to war, such as principle of proportionality and command responsibility in military action. This gives rise to a need for international legal expertise to be brought in, at least for an initial period of time. On the other hand, the credibility centred reason for international participation stems from the lack of confidence of the Tamil polity in the Sri Lankan judiciary at the present time.
The main problem with a national accountability mechanism, from the Tamil perspective, is the apprehension that its findings and conclusions would be subservient to the interests of the Sri Lankan state. Sri Lanka has yet to find the solution where the ethnic minorities have confidence that the Sri Lankan state will be fair and impartial to them on controversial matters. To its credit the new government is taking the country in this direction, as borne out by its willingness to have the national anthem sung in Tamil at the Independence Day celebration. But this is still only a token of goodwill. There is a need for more substantial actions to take place. Although the Chief Justice of the Supreme Court is Tamil the other 10 judges are Sinhala. There is no Muslim Supreme Court judge at this time. It is in these circumstances that there is disquiet amongst the Tamil polity about placing its faith on a Sinhala-dominated court and legal system on a matter as controversial as war crimes, on which there is a clear divide between the ethnic communities.
Sri Lanka is not alone in having to face the issue of international participation in judicial mechanisms aimed at ensuring justice after internal conflicts that have polarised the people living within those countries. Cambodia, Bosnia and East Timor are examples of countries that have set up judicial mechanisms, or special courts, which have included foreign judges and other legal personnel in them. Some of these judicial processes have proven to be very expensive. They have also been very slow moving due to factors such as internal resistance to them and the difficulty in finding financing for them. The Cambodian special courts cost over USD 200 million over a ten year period, but yielded only five indictments and two convictions. In Bosnia the war crimes trials by international tribunals have not brought healing and the hatreds have not gone away merely because the war criminals have been convicted and imprisoned by those international tribunals.
There are several arguments that can be made against having fully fledged international participation in the judicial processes of a country. Foreigners will not understand the local context nor will they live with the consequences of their decisions. Their analysis will be technical and they will not see the political implications of what they are doing, and whether it will serve the interests of both justice and political stability in the longer term. If foreign judges and legal personnel such as foreign prosecutors and investigators are to be on the court, they will need to be provided with the translations of the material that is placed before them. In the case of Sri Lanka, the force of this latter argument gets reduced because the same problem of translations will arise where the judges are Sinhala-speaking and the complainants are Tamil-speaking. Most of the Sri Lankan judges are not Tamil-speaking and so, in the case of Tamil complainants, will need to be provided with translators and translation facilities.
In the case of foreign judges and lawyers there is also the question of fees. The previous government obtained the services of foreign experts to serve as a panel of advisors to the Missing Persons Commission, who were paid very large fees. The question is who will bear the financial burden if the legal process gets protracted as it did in the case of Cambodia. There were times in the Cambodian process when the special courts stopped functioning because the government had no money to pay for the salaries of staff involved in the process. It should be noted that the legal process can stretch for a considerable period of time and so assured sources of funding need to be obtained for the long haul. In the case of Cambodia questions were raised whether the money spent on the special courts was worth the benefit of obtaining two convictions, and whether the money could have been spent better on the victims of the Khmer Rouge atrocities.
The third argument against foreign judges would be based on the need to strengthen rather than undermine the capacity of the Sri Lankan judiciary. The nationalist opposition would argue that foreigners should not sit in judgment over Sri Lankans especially on issues that concerned national security and decisions relating to it. The power of nationalist sentiment within the Sri Lankan polity cannot be underestimated. There is also another argument that bringing in foreign judges and legal personnel would undermine the morale of Sri Lanka’s own judges and legal personnel. After the passage of the 19th Amendment to the Constitution, the judiciary’s independence has been strengthened. The present Chief Justice Sripavan has maintained his distance from the political decisionmakers and the new government leaders do not interfere with the decisions of the Supreme Court.
The most useful area of involvement for the international community would be in building up the capacity of the Sri Lankan judicial and legal system to cope with the issue of international humanitarian law and war crimes. This could come in the form of training programmes, held both internationally and within Sri Lanka, that would transfer knowledge to Sri Lankans, to judges, lawyers, academics and journalists, so that that they may understand international standards and be able to apply them in their professional lives. This should also be part of an integrated strategy that includes truth seeking through a truth commission, reparations and constitutional reforms.
It must be remembered when former Chief Justice Shirani Bandaranayake was unjustly sacked by the previous government, both the Appeal and Supreme Courts ruled against the government. There was integrity within the judicial system, as there is in all public systems which people join because they wish to serve other people. The problem in the past was that the previous government used its executive and legislative powers to steamroll over the judiciary as it did other public institutions. The present government is not so and is honouring the 19th Amendment that secures institutional independence. Given the financial and political costs of having foreign judges and legal personnel getting fully involved in controversial processes that might last many years, a more appropriate solution to the problem of a trustworthy process can be obtained by the government, opposition and Tamil and Muslim parties sitting together and finding a nationally-driven solution to a national problem.