'More than a Domestic Mechanism': Options for Hybrid Justice in Sri Lanka

Abstract

After years of resistance, the new government of Sri Lanka has now committed to launching a genuine transitional justice program to address, and redress, the grave international crimes committed by all sides in the almost 30-year conflict with the Liberation Tigers of Tamil Eelam (LTTE). In addition to comprehensive political reforms focused on good governance, the devolution of power, security sector reform, and the rule of law, the future transitional justice process will reportedly involve four main pillars: a truth and reconciliation commission; a reparations process; an office to investigate and resolve disappearances; and an accountability mechanism. These building blocks find expression in a landmark consensus resolution by the Human Rights Council issued in September 2015 with Sri Lanka as a co-sponsor. Although this will be a Sri Lankan process, the resolution calls upon government actors to take advantage of “expert advice from those with relevant international and domestic experience” and to draw upon “international expertise, assistance and best practices.” In joining the resolution, Sri Lanka has affirmed the importance of including foreign personnel — including judges, defense counsel, prosecutors, and investigators, potentially drawn from among the Commonwealth states — in any judicial mechanism. The resolution thus embodies one of the key recommendations emerging from the Human Rights Council’s engagement in Sri Lanka: the imperative of establishing a hybrid tribunal of some sort to ensure an independent, impartial, and credible criminal process free of intimidation and political interference. Notwithstanding this pledge, government representatives, journalists, and others have expressed reticence about inviting international interference in, or ceding too much control over, the administration of justice for the crimes of the civil war. The term “hybrid tribunal” has emerged as a particular flashpoint in this discourse, with commentators rejecting the concept out of hand as somehow inherently violative of Sri Lanka’s sovereignty. This chapter hopes to demonstrate that there are multiple ways that domestic judicial processes can be “internationalized” in order to bolster the perceived domestic and international legitimacy of a judicial process, take advantage of expertise developed in other societies facing similar transitional justice dilemmas, and benefit from material assistance from the international community whose members are committed to investing in the new Sri Lanka — all without sacrificing judicial sovereignty over the penal process.