UN report recommends “hybrid” court to try Sri Lankan war criminals

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An investigation by the UN Office of the High Commissioner for Human Rights (OHCHR)

has recommended a “hybrid special court” of international and local judges to bring to justice those guilty of war crimes and crimes against humanity in Sri Lanka.

Leaving the process to local jurisdiction is not an option given years of impunity for those who committed a “horrific level of violations and abuses” between 2002 and 2010 (the period covered by the investigation).

The UN investigation (one of whose expert advisers was former New Zealand governor-general Sylvia Cartwright) was the most thorough so far into the crimes committed during the last phase of the civil war by both sides (but predominantly by the government side).  These crimes included indiscriminate shelling, extrajudicial killings, torture, sexual violence, and the denial of humanitarian assistance.  The OHCHR team says it is likely tens of thousands of Tamils were killed as a result.

After the war ended the government continued with its crimes against humanity. Particularly sinister have been the “enforced disappearances” [read executions] often described as “white van” killings because the victims were often last seen being bundled into white vans.  The investigation team estimated that “enforced disappearances” have “affected tens of thousands of Sri Lankans over the decades.”

While the electoral defeat of the Rajapakse regime earlier this year has led to some improvement in the human rights climate, Tamils continue to be subject to systematic discrimination, persecution and the militarization of their northern homeland.  This is one reason why the UN report proposed a fully-fledged permanent OHCHR presence in Sri Lanka to monitor the human rights situation.

A draft resolution before the UN Human Rights Council

will action some of the proposals in the OHCHR report. Both the Sri Lankan government and the

Tamil National Alliance

have welcomed the resolution’s affirmation of “the importance of participation in the Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.”  There is, however, no specific reference to a permanent on-the-ground presence of OHCHR monitors.

Naturally there remains a lot of cynicism in the Tamil community as to how much progress can be made. They have suffered so much over the last half century, and the OHCHR team did not address the deep-rooted Tamil aspiration to determine their own future in the North and East of the country.

One final note on what New Zealand is entitled to do if not much progress is made in Sri Lanka. The OHCHR report recommended that other states (like New Zealand), “whenever possible, notably under universal jurisdiction, investigate and prosecute those [Sri Lankans] allegedly responsible for violations, such as torture, war crimes and crimes against humanity.”