A war crimes tribunal for Sri Lanka? Examining the options under international law.

• Author: Jayasinghe, Nihal

In light of the growing international demands for accountability in relation to alleged war crimes committed in Sri Lanka during its twenty-six-year armed conflict, this article aims to evaluate the options available to both Sri Lanka and the international community under the applicable rules of international law. First, the background to the armed conflict in Sri Lanka will be investigated, with a particular focus on the escalation thereof in 2009. This article will then examine the options available under public international law to address the increasing calls for accountability. Throughout the analysis, comparisons will be drawn between the situation in Sri Lanka and those in which criminal tribunals have been established to prosecute those responsible for perpetrating alleged international crimes. By contrasting the options available in relation to the situation in Sri Lanka with analogous situations, conclusions will be drawn as to the most viable options through which the intensifying demands for accountability might be met under international law.

Contents I. INTRODUCTION II. SOME ATTEMPTS MADE THUS FAR TO MEET THE DEMANDS FOR ACCOUNTABILITY III. OPTIONS UNDER INTERNATIONAL LAW A. Action by the International Criminal Court B. Action by the U.N.: An Ad Hoc Tribunal for Sri Lanka? C. The Exercise of Universal Jurisdiction over International Crimes IV. CONCLUDING REMARKS I. INTRODUCTION

At the Commonwealth Heads of Government Meeting (CHOGM) held in Sri Lanka from November 10 through 17, 2013, leaders aimed to discuss global and Commonwealth issues and to decide on collective policies and initiatives thereto. (1) However, the undeniable focus of Western media and human rights groups was set on the war crimes allegedly committed in Sri Lanka during the final phase of the armed conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka (GoSL), which resulted in a conclusive victory for the latter in May 2009. (2) Even though--at the time of this writing--over five years have passed since the end of the Sri Lankan conflict, the demand for an investigation of alleged war crimes does not seem to have abated. This article therefore offers an assessment of the options available to both Sri Lanka and the wider international community under international law in order to address the growing demands that those responsible for the perpetration of alleged war crimes be held to account. (3) First, a brief background to the armed conflict in Sri Lanka will be provided, followed by an examination of the attempts already made by the GoSL, the U.N., and non-governmental organizations to meet these intensifying demands.

The Democratic Socialist Republic of Sri Lanka is a sovereign island state situated in the Indian Ocean, having gained its independence from the United Kingdom in 1948. Sri Lanka is an ethnically, linguistically, and religiously diverse nation with a population of 20.3 million people. (4) Of this population, almost 75 percent are ethnically Sinhalese, speak Sinhala, and 70 percent practice Buddhism. (5) There is, moreover, a substantial Tamil minority, and the Tamil language is consequently spoken widely throughout Sri Lanka. Sri Lanka is an independent nation, with an elected legislature and executive. (6) Indeed, the 2011 Report by the U.N. Secretary-General's Panel of Experts on Accountability in Sri Lanka ("Accountability Report") notes that: "Strong indicators of democracy, including universal franchise, a multi-party system and a vibrant electoral process, combined with important human development achievements, such as high literacy rates both for men and women and low infant mortality, contrast sharply with Sri Lanka's long history of war." (7) It is generally agreed that the conflict in Sri Lanka grew out of increasingly violent ethnic tensions, and that 1983 was the starting point of the armed conflict when the GoSL responded with armed force in response to LTTE attacks in the northern district of Jaffna. (8)

After 1983, the LTTE became increasingly militarized and--in addition to silencing other Tamil groups through violence, thereby becoming the self-styled sole representative of the Tamil people-- carried out large-scale suicide attacks against political, economic, military, civilian, and religious targets. (9) The tactics adopted by the LTTE led to its inclusion on the lists of proscribed terrorist organizations in the U.S., the United Kingdom, India, Canada, and the European Union. (10) The LTTE, moreover, exercised control over parts of northern and eastern Sri Lanka--sustained by the funding, advocacy, and support from its large, uncritical diaspora. (11) After the collapse of the Ceasefire Agreement signed by both the GoSL and the LTTE in 2002, (12) and supported by sectors of the international community as part of the "global war on terror," the GoSL resumed full-scale hostilities in 2006, leading to its victory over the LTTE in the Eastern Province and in some parts of the Northern Province. (13) In September 2008, the GoSL launched its final military offensive against the remaining LTTE forces in the Northern Province, which resulted in a decisive victory for the GoSL over the LTTE in May 2009.

2. SOME ATTEMPTS MADE THUS FAR TO MEET THE DEMANDS FOR ACCOUNTABILITY

   On June 22, 2010, the U.N. Secretary-General appointed the Panel of Experts on Accountability in Sri Lanka ("Panel of Experts") in order "to advise [it] on the issue of accountability with regard to alleged violations of international humanitarian and human rights law during final stages of armed conflict in Sri Lanka." (14) The Executive Summary of the Accountability Report further provides, in relevant part, as follows:

   On 22 June 2010, the Secretary-General announced the appointment of a Panel of Experts to advise him on the implementation of the joint commitment included in the statement issued by the President of Sri Lanka and the Secretary-General at the conclusion of the Secretary-General's visit to Sri Lanka on 23 March 2009. In the Joint Statement, the Secretary-General "underlined the importance of an accountability process", and the [GoSL] agreed that it "will take measures to address those grievances". The Panel's mandate is to advise the Secretary-General regarding the modalities, applicable international standards and comparative experience relevant to an accountability process, having regard to the nature and scope of alleged violations of international humanitarian and human rights law during the final stages of the armed conflict in Sri Lanka. (15) In light of the allegations found credible thereby, the Panel of Experts recommended, inter alia, that the GoSL, "in compliance with its international obligations and with a view to initiating an effective domestic accountability process, should immediately commence genuine investigations into... [the] alleged violations of international humanitarian and human rights law committed by both sides involved in the armed conflict." (16) The Panel of Experts further recommended that:

   The Secretary-General should immediately proceed to establish an independent international mechanism, whose mandate should include the following concurrent functions: (i) Monitor and assess the extent to which the [GoSL] is carrying out an effective domestic accountability process, including genuine investigations of the alleged violations, and periodically advise the Secretary-General on its findings; [and] (ii) Conduct investigations independently into the alleged violations, having regard to genuine and effective domestic investigations... (17) Prior to the Accountability Report, the GoSL appointed a Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC), which was mandated "to look back at the conflict Sri Lanka suffered as well as to look ahead for an era of healing and peace building in the country." (18) The LLRC was more specifically instructed as follows:

   [T]o inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely;

   (i) the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;

   (ii) whether any person, group or institution directly or indirectly bear responsibility in this regard;

   (iii) the lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;

   (iv) the methodology whereby restitution to pay persons affected by those events or their dependants [sic] or their heirs, can be effected;

   (v) the institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities and; to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the Warrant. (19)

   Following its inquiries, the LLRC made a number of recommendations in order to promote reconciliation including the establishment of an independent institution to address the grievances of Sri Lankan citizens affected by state action, the devolution of power by the GoSL, better implementation of the state-led language policy, the pressing need to standardize access to education, the promotion of interfaith activities, linguistic and cultural affinities, and people-to-people contact, better engagement with the diaspora, and the need to establish political consensus among the major political parties and between Sinhala and Tamil communities. (20)

   On March 22, 2012, the U.N. Human Rights Council adopted a resolution--the draft of which was first proposed by the U.S. (21)--regarding the promotion of reconciliation and accountability in Sri Lanka. (22) The text of this resolution provides, in...