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Hybrid court in US draft resolution
The United States which earlier backed a “credible domestic inquiry” to probe alleged war crimes now appears to be in favour of “international investigators, prosecutors and judges in Sri Lanka’s justice process.”
Its new position is spelt out in a five-page draft resolution circulated among members of the UN Human Rights Council in Geneva. This draft could be subject to changes as US diplomats there consult colleagues in the 47-member council. In addition, a public consultation on the sidelines of the Human Rights Council sessions has been fixed for Wednesday. US Ambassador Atul Keshap is also in Geneva over these matters.
Though not explicitly spelt out, provisions in the new draft, diplomatic sources say, mean the US, the mover of a string of resolutions on Sri Lanka at the Human Rights Council, now favoured “hybrid special courts” to probe war crimes both by Government troops and Tiger guerrillas. Foreign Minister Mangala Samaraweera told the Sunday Times in an interview the “hybrid special courts” are “also one of the possibilities we have to explore. He added “we have not closed our doors on any of these ideas.”
The relevant paragraph in the draft five-page resolution reads: “Welcomes the Government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system; takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and calls upon the Government of Sri Lanka, to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes.”
The UN Human Rights High Commissioner Zeid Ra’ad Al Hussein released the inquiry report on Sri Lanka, tagged OISL, on Wednesday. He said the report strongly indicated that war crimes and crimes against humanity were most likely committed by both sides to the conflict. The report recommended the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, as an essential step towards justice.
The draft US resolution, which Washington expects will be backed by most other member countries, also makes a number of other significant observations. Among them:
Encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process that include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units; and increasing training and incentives focused on the promotion and protection of human rights of all Sri Lankans.
Welcomes the Government of Sri Lanka’s recent passage of an updated Witness and Victim Protection Law, and urges the Government of Sri Lanka to strengthen these essential protections by making specific accommodations to effectively protect witnesses and victims participating in transitional justice processes who may be under threat due to information they have that allegedly implicates any public official, including members of the security forces or those with effective control over those forces.
Underscores the importance of the Government taking additional steps on return of land previously taken by defence forces to its rightful civilian owners, encouraging the acceleration of such transfers of land back to the rightful owners, and encouraging the Government to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stressing the importance of the full participation of local population, including representatives of civil society and minorities, in these efforts.
One of the matters the preamble in the draft resolution has taken note of is “the establishment of a Commission to Investigate allegations of bribery or corruption and its initial investigations into major cases of corruption, fraud, and abuses of power, and stressing the importance of such investigations and the prosecution of those responsible, in ending impunity and promoting good governance.”