Justice for International Crimes in Sri Lanka

Justice for International Crimes in Sri Lanka T HE C ONGRESSIONAL C AUCUS FOR E THNIC AND R ELIGIOUS F REEDOM IN S RI L ANKA PROFESSOR DERMOT GROOME Briefing on Recent Developments: 1. Report of the Office of the UN High Commissioner for Human Rights A/HRC/30/61 ( OISL Report ). 2. Human Rights Council Resolution A/HRC/RES/30/1 Founded in 1834, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the country. In 2000, it became part of Penn State University. Its graduates include Tom Ridge, the first Secretary of Homeland Security. It is located in Carlisle, Pennsylvania home to the US Army War College. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 1

O VERVIEW OF P RESENTATION The OISL Report, September 16 2015 Part I (A/HRC/30/61) http://www.ohchr.org/en/hrbodies/hrc/pages/oisl.aspx Part II (A/HRC/30/CPR.2) http://www.ohchr.org/en/hrbodies/hrc/pages/oisl.aspx Human Rights Council Resolution A/HRC/RES/30/1. http://www.ohchr.org/en/hrbodies/hrc/regularsessions/session30/pages/resdecstat.aspx What are the prospects for justice before the courts of Sri Lanka? Are there other potential avenues for justice? Evaluating Sri Lanka s Implementation of A/HRC/RES/30/1. Final Comments. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 2

Major Positions: C URRICULUM V ITAE 6 years Prosecutor Manhattan District Attorney s Office 5 years Jamaica West Indies Humanitarian Assistance and Children s Rights work 2 years Cambodia Human Rights work, training judges and prosecutors, monitoring courts 11 ½ years Prosecutor UN International Criminal Tribunal for the former Yugoslavia (Cases: Milosevic; Mladic; Lukić; Vasiljević; Stanisic; Simatovic; Perisić (investigation & indictment); Haradinaj (pre trial); Dragan Nikolic (pre trial); 2 confidential contempt investigations Major Writings: a complete catalogue of articles can be found at: http://papers.ssrn.com/sol3/cf_dev/absbyauth.cfm?per_id=685217 THE HANDBOOK OF HUMAN RIGHTS INVESTIGATION, with a foreword by Justice Richard Goldstone (2001, 2011). The Right to Truth, in COMMENTARY ON THE UN PRINCIPLES TO COMBAT IMPUNITY (Oxford University Press 2015). Paola Gaeta, Frank Haldemann and Thomas Unger, eds. (Forthcoming). Criminological Aspects of Investigating Mass Criminality in CRIMINOLOGICAL APPROACHES TO INTERNATIONAL CRIMINAL LAW, Ilias Bantekas and Emmanuela Mylonaki, eds. (Cambridge University Press 2014). Author of five sections in: THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE Antonio Cassese, ed. (Oxford University Press 2009). Dermot Groome, et al., EXPERT INITIATIVE ON PROMOTING EFFECTIVENESS AT THE INTERNATIONAL CRIMINAL COURT, (May 2014) (252 pages). No Witness, No Case: The Conduct and Quality of ICC Investigations, 3 Penn St. J. L. & Int l Aff. 1 (2014). The Right to Truth in the Fight Against Impunity, 29 Berkeley J. Int l L. 175 (2011). The Church Abuse Scandal: Were Crimes Against Humanity Committed? 11 Chicago J. Int l L. 439 (2011). Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility? 31 Fordham Int l L. J. 911 (2008). Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 3

Time Line OISL R EPORT: B ACKGROUND Date Event Comment May 2009 Jun. 2010 Mar. 2011 UNSG visits Sri Lanka After a year of inaction UNSG appoints panel of experts. Report of the Secretary General s Panel of Experts on Accountability in Sri Lanka [F]ound credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed by both the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. Nov. 2012 Report of the Secretary General s Internal Review Panel on United Nations Action in Sri Lanka While primarily focused on UN actions during the last stages of the conflict it makes important findings of fact and revelations of information relevant to any ultimate adjudication of whether crimes were committed. Mar. 2014 Jul. 2014 HRC Resolution 25/1 Promoting Reconciliation, Accountability and Human Rights in Sri Lanka OISL begins its work Expressing serious concern at the continuing reports of violations of human rights in Sri Lanka, including sexual and gender based violence, enforced disappearances, extrajudicial killings, torture threats to judicial independence and the rule of law, as well as intimidation of and reprisals against human rights defenders, lawyers and journalists, Mar. 2015 OISL report delayed for 6 months Delay to give the Sirisena government an opportunity to cooperation with OISL. Sept. 2015 Report of the OHCHR Investigation on Sri Lanka (OISL) A/HRC/30/CRP.2 Detailed findings based on abundant evidenceofthecommissionofmanyof the most serious crimes possible. Findings with respect to Sri Lanka s inability to deliver justice for victims. Recommendation for a hybrid tribunal Sept. 2015 HRC Resolution A/HRC/30/1 Promoting Rejects recommendation for a hybrid tribunal Reconciliation, Accountability and February Human 3, Rights in Sri LankaCongressional Caucus on Ethnic and Religious Freedom in Sri Lanka 4 2016

The people behind the report OISL R EPORT: B ACKGROUND Martti Ahtisaari Former President of Finland After presidency Ahtisaari was instrumental in peace processes in Northern Ireland, Kosovo, South Sudan and other places 2008 recipient of Nobel Peace Prize Zeid Ra ad Al Hussein High Commissioner of Human Rights Al Hussein is a respected Jordanian diplomat. He took office in September 2014. Has degrees from Johns Hopkins and Cambridge University Silvia Cartwright Former Judge High Court of New Zealand Was also former Governor General and headed several human rights commissions. Asma Jahangir Former Head of Pakistan Human Rights Commission Has been a Special Rapporteur to the United Nations. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 5

OISL R EPORT The OISL Report: Major Findings and Conclusions This was a human rights investigation and not a criminal investigation There were reasonable grounds to believe that international crimes had been committed by the Sri Lankan army including: Unlawful killings & enforced disappearances Shelling of civilian areas Shelling of hospitals Sexual torture Denial of humanitarian aid There were reasonable grounds to believe that international crimes had been committed by the LTTE including: Unlawful recruitment of children, Unlawful killings Forced recruitment Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 6

OISL R EPORT The OISL Report: Major Findings and Conclusions Individual criminal liability for direct perpetrators is established by showing their direct involvement in crimes. Individual criminal liability for remote perpetrators is established by demonstrating that their de jure (legal) relationship or their de facto (in fact) relationship to the direct perpetrators and how they used that relationship to contribute to the direct perpetrator s crimes. That de jure or de facto relationship may also impose a duty on the senior official to prevent or punish crimes committed by subordinates as well as a duty to investigate allegations of crimes failure to do so makes that person criminally liable for the unpunished crimes. Direct Perpetrators Although the OISL report does not identify the names of individual direct perpetrators it does in some cases indicate the military unit they belonged to and refers to video evidence depicting direct perpetrators summarily executing prisoners. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 7

OISL R EPORT The OISL Report: Major Findings and Conclusions Individual criminal liability for direct perpetrators is established by showing their direct involvement in crimes. Individual criminal liability for remote perpetrators is established by demonstrating that their de jure (legal) relationship or their de facto (in fact) relationship to the direct perpetrators and how they used that relationship to contribute to the direct perpetrator s crimes. That de jure or de facto relationship may also impose a duty on the senior official to prevent or punish crimes committed by subordinates as well as a duty to investigate allegations of crimes failure to do so makes that person criminally liable for the unpunished crimes. Remote Perpetrators Although the OISL report does not make findings of individual criminal responsibility with respect to remote perpetrators it establishes many of the de jure relationships that could be the basis for individual criminal liability for superiors. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 8

OISL R EPORT The OISL Report: Major Findings and Conclusions There are ongoing crimes against the Tamil minority. The Sri Lankan government did not cooperate with the investigation and was its greatest obstacle. Despite the new government OISL investigators or experts were still not permitted to work in Sri Lanka. There continues to be widespread intimidation of witnesses. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 9

OISL R EPORT The OISL Report: Major Findings and Conclusions OISL recognises the measures to improve human rights have been taken by the Government which took office in January and that the new Government that took office in August 2015 has committed to bringing about change OISL Report para. 1280 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 10

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; "The failure to hold perpetrators accountable for gross human rights violations, serious violations of international humanitarian law and international crimes in Sri Lanka dates well before the mandate period of OISL investigation and has been highlighted repeatedly over the years OISL Report, para. 1175 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; 8. the absence of effective witness protection mechanisms. 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 12

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; In June the Sri Lankan Parliament adopted the 19 th Amendment to the Constitution. It places some new checks on the authority of the executive and attempts to make the police, courts and investigatory commissions more independent. 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; 8. the absence of effective witness protection mechanisms. 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 13

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; 8. the absence of effective witness protection mechanisms. "The majority of the many commissions of inquiry appear to have been designed to deflect criticism in high profile cases rather than as effective mechanisms to enable accountability, the exceptions being the commissions of inquiry into disappearances set up in 1994 and 1998. Despite their flaws, they did nevertheless document many cases, including alleged perpetrators. However, the majority of the alleged perpetrators were never prosecuted and some have since been promoted within the security forces. OISL Report, para. 1276 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 14

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; 8. the absence of effective witness protection mechanisms. 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. "In the course of its investigations, OISL received numerous and consistent reports from witnesses about harassment and sometimes physical abuse that they had endured from military and/or police and of their fears to report violations and testify in investigations. OHCHR continued to receive such allegations beyond the change of government in January 2015. OISL Report, para. 1184. "Most importantly, many of the structures responsible for the violationsandcrimesremaininplace, ready to be reactivated when necessary as well as to prevent any progress in terms of addressing accountability. OISL Report, para. 1270 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 15

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; Creating an environment conducive to open testimony and dialogue requires putting in place an independent, effective witness protection system. While the Witness Protection Act of 2015 marks a start, it requires amendment to bring it into line with international standards and best practices. OISL Report, para. 1275 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; 8. the absence of effective witness protection mechanisms. 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 16

O BSTACLES IN S RI L ANKA Obstacles to Accountability (OISL Report para. 1182) 1. the lack of political will; 2. lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies; 3. interference of the Executive in judicial matters; 4. undue delay in cases languishing in the courts for many years without progress ; 5. appointment of commissions of inquiry which have often lacked independence, the majority of whose reports have never been made public; 6. the failure to implement recommendations made by national and United Nations bodies regarding accountability; 7. threats and reprisals against those who make complaints against security forces and Government officials, as well as lawyers and judicial officials; OVERALL CONCLUSION OISL believes, however, that Sri Lanka s criminal justice system is not yet ready or fully equipped to promptly conduct the independent and credible investigation into the allegations contained in this report, or to hold accountable those responsible for such violations. OISL Report, para. 1278 8. the absence of effective witness protection mechanisms. 9. Another obstacle is the lack of relevant legislation criminalizing international crimes and instituting modes of liability including command or superior responsibility. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 17

The OISL Report: Major Recommendations OISL R EPORT General Develop comprehensive transitional justice policy (#1) Establish full fledged OHCHR presence (#3) Ensure full cooperation with Special Rapporteurs (#5) Institutional Improve the independence and competency of Sri Lankan courts (#6) Give clear, unequivocal instructions to security forces to cease criminal activity (#9) Remove all security personnel suspected of crimes and human rights violations (#12) Return land stolen from Tamils (#14) Justice Adopt international human rights conventions and enact international crimes (# 17 19) Create a hybrid court (#20) Reparations for victims (#30) Right to Truth Develop concrete mechanisms for the right to truth and the right to know (#25 29) Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 18

The OISL Report: Major Recommendations OISL R EPORT Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 19

The OISL Report: Major Recommendations Comments of Assistant Secretary of State Nisha Biswal on August 26, 2015 H UMAN R IGHTS C OUNCIL 30 TH S ESSION The United States will sponsor a resolution on Sri Lanka next month at the United Nations Human Rights Council backing Colombo s plans for reconciliation and to conduct an investigation into possible war crimes during the final stages of the island s civil war, a top American diplomat said Wednesday. The announcement signals a reversal of Washington s longstanding insistence on an international inquiry. New York Times, August 26, 2015 "Today the United States, Sri Lanka, and our partners tabled a resolution at the UN Human Rights Council in Geneva that represents a landmark shared recognition of the critical importance of truth, justice, reparations, and guarantees of non recurrence in promoting reconciliation and ensuring an enduring peace and prosperity for all Sri Lankans. This resolution marks an important step toward a credible transitional justice process, owned by Sri Lankans and with the support and involvement of the international community. Secretary of State John Kerry September 28, 2015 http://www.state.gov/secretary/remarks/2015/09/247268.htm Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 20

H UMAN R IGHTS C OUNCIL 30 TH S ESSION Resolution A/HRC/30/1 Promoting reconciliation, accountability and human rights in Sri Lanka Recognized The passage of the 19 th amendment to the Constitution of Sri Lanka (creating more independent organs of government) steps taken by the Government of Sri Lanka since January 2015 to advance respect for human rights steps taken to strengthen civilian administration in the former conflict affected provinces of the North and East improved environment for members of civil society Welcoming the Declaration of Peace of the Government of 4 February 2015 Welcomes the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating a full range of judicial and non judicial measures Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 21

H UMAN R IGHTS C OUNCIL 3 0 TH S ESSION Resolution A/HRC/30/1 Promoting reconciliation, accountability and human rights in Sri Lanka Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 22

J USTICE IN THE S RI L ANKAN C OURTS Initial response to Human Rights Council Resolution A/HRC/RES/30/1 The special court should start work by the end of this month or by early January. No reconciliation is possible without accepting the mistakes of the past. They will not be chasing behind every soldier, but the main line of command will be looked at. Ms Kumartunga stressed that though there will be foreign technical assistance, foreign judges would not be allowed in the process. Kumartunga said she personally believed that involving independent foreign judges was preferable. Chandrika Kumaratunga (president 1994 95), Channel News Asia, December 1, 2015 http://www.channelnewsasia.com/news/asiapacific/sri lanka to launch/2310294.html Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 23

J USTICE IN THE S RI L ANKAN C OURTS Initial response to Human Rights Council Resolution A/HRC/RES/30/1 The adoption of this resolution is a turning point for human rights in Sri Lanka, and crucially recognizes terrible crimes committed by both parties during the armed conflict. The resolution calls for international judges, defence lawyers, prosecutors and investigators to ensure the credibility of the justice process this is crucial. Any accountability process must have an international component for it to have any credibility, as well as to provide the necessary skills and expertise. David Griffiths, Amnesty International, October 1, 2015 https://www.amnesty.org/en/latest/news/2015/10/sri lanka un war crimes resolution marks a turning point for victims/ At the Human Rights Council in October 2015, member states including Sri Lanka endorsed a consensus resolution calling on the Sri Lankan government to implement the report s many recommendations, including to establish a special counsel to investigate and prosecute alleged wartime abuses, and to include foreign judges and prosecutors in a Sri Lankan tribunal. Human Rights Watch, World Report 2016, January 27, 2016 https://www.hrw.org/news/2016/01/27/sri lanka new government makes significant progress 0 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 24

J USTICE IN THE S RI L ANKAN C OURTS Is a credible justice process possible before the Sri Lankan Courts? Recent Visit of the Working Group on Enforced or Involuntary Disappearance. The working group also visited cells in a navy camp in the eastern part of the island that experts said showed signs of being used even after conflict in the country ended in 2009. The group urged the government to investigate whether there were other undisclosed detention centers. The group also said it was concerned by allegations that relatives and organizations working on cases of enforced disappearance had been harassed and intimidated by intelligence officers, police and army personnel. The Sri Lankan government has said it would investigate such claims. The victims of enforced disappearances have overall no faith in the justice system, prosecution services, the police or armed forces. The chronic pattern of impunity still exists and sufficient efforts now need to determine the whereabouts of these people, punish those responsible and guarantee the right to truth and reparation, Bernard Duhaime, vice chair of the group, said. Uditha Jayasinghe, Wall Street Journal, November 19, 2016 http://blogs.wsj.com/indiarealtime/2015/11/19/u n group asks sri lanka to speed up disappearances investigations/ Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 25

Recent comments of Sri Lankan Officials [A]ffirms in this regard the importance of participation in a Sri Lankan judicial mechanism of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators. Res 30/1 para. 6 J USTICE IN THE S RI L ANKAN C OURTS "I will never agree to international involvement in this matter." "This investigation should be internal and indigenous."the international community need not worry about matters of state interest." President Sirisena, BBC January 21, 2016 http://www.bbc.com/news/world asia 35376719 The president of Sri Lanka has said foreign judges and prosecutors should not be involved in an investigation into allegations of war crimes. In a BBC interview, President Maithripala Sirisena said the country did not need to "import" specialists.. The government previously backed a UN resolution calling for a war crimes court supported by foreign judges. But on Thursday the president said: "I will never agree to international involvement in this matter." "Wehavemorethanenoughspecialists,experts and knowledgeable people in our country to solve our internal issues," he said. Asked when the court might be set up, he said: "These things cannot be done instantly or in a hurried manner. President Sirisena said that while the UN report released in September 2015 had pointed to army involvement in war crimes, the report had failed to mention names. He said it was important to determine whether such crimes actually took place. He said: "If the Sri Lankan Army is alleged for such crimes, our concern should be to free them from those allegations.. BBC January 21, 2016 http://www.bbc.com/news/world asia 35376719 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 26

Recent comments of Sri Lankan Officials [A]ffirms in this regard the importance of participation in a Sri Lankan judicial mechanism of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators. Res 30/1 para. 6 J USTICE IN THE S RI L ANKAN C OURTS "I will never agree to international involvement in this matter." "This investigation should be internal and indigenous."the international community need not worry about matters of state interest." President Sirisena, BBC January 21, 2016 http://www.bbc.com/news/world asia 35376719 "I must say very clearly there is no allegations regarding 'war crimes'. They contained allegations of human rights violations only. In terms of people, we definitely do not need outsiders. President Sirisena, Al Jazeera January 29, 2016 http://www.aljazeera.com/programmes/talktojazeera/2016/01/sri lankan president allegations war crimes 160128150748006.html Sri Lankan President: No Allegations Of War Crimes In a Talk to Al Jazeera interview, the Sri Lankan president Maithripala Sirisena appears to contradict key findings from a UN investigation into the country's civil war, released in September last year.. Speaking to Al Jazeera's Hoda Abdel Hamid, Sirisena rejected the allegations. "Imustsayveryclearlythereisnoallegationsregarding'war crimes', there were war crimes allegations during the early stages. But at the United Nations Human Rights Council in Geneva, mainly in the proposals presented in September, there were no 'war crimes' allegations against us. They contained allegations of human rights violations only. Al Jazeera, January 29, 2016 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 27

Recent comments of Sri Lankan Officials [A]ffirms in this regard the importance of participation in a Sri Lankan judicial mechanism of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators. Res 30/1 para. 6 J USTICE IN THE S RI L ANKAN C OURTS "I will never agree to international involvement in this matter." "This investigation should be internal and indigenous."the international community need not worry about matters of state interest." President Sirisena, BBC January 21, 2016 http://www.bbc.com/news/world asia 35376719 "I must say very clearly there is no allegations regarding 'war crimes'. They contained allegations of human rights violations only. In terms of people, we definitely do not need outsiders. President Sirisena, Al Jazeera January 29, 2016 http://www.aljazeera.com/programmes/talktojazeera/2016/01/sri lankan president allegations war crimes 160128150748006.html We will have participation from foreign judges. This is nothing new. (reportedly said during the week of January 24, 2016) Prime Minister Wickremesinghe, The Sunday Times, January 30, 2016 http://www.sundaytimes.lk/160131/columns/domestic war crimes probe lack of clarity as government tries balancing act 181255.html Q: The President says no foreign intervention. A: That will not be allowed at any cost. Intervention is different to assistance. Q: The US ambassador says something different. A: That is their opinion. (reportedly said on January 28, 2016) Minister Rajitha Senaratne, The Sunday Times, January 30, 2016 http://www.sundaytimes.lk/160131/columns/domestic war crimes probe lack of clarity as government tries balancing act 181255.html Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 28

Response to comments of Sri Lankan Officials J USTICE IN THE S RI L ANKAN C OURTS Keith Harper (@USAmbHRC) tweeted at 0:09 pm on Mon, Jan 25, 2016: For #SriLanka credibility of any accountability mechanism requires involvement of foreign judges etc. That has and will not change. Keith Harper, US Representative to the UN Human Rights Council https://twitter.com/usambhrc/status/691593791724220416?s=03 "Ban s spokesman Stephane Dujarric on Friday said in New York that the Secretary General had reaffirmed the importance of a credible justice process and international participation in the judicial mechanism. Stephane Dujarric, UNSG spokesperson The Indian Express http://indianexpress.com/article/world/world news/un urges on global participation in sri lankan civil war probe/ "High Commissioner for Human Rights Zeid Raad Al Hussein will visit Sri Lanka this week amid an uncertainty over foreign judges involvement to probe the alleged atrocities committed during civil war with the LTTE. Deputy Foreign Minister Harsha de Silva today said the UN rights chief will be in Sri Lanka for four days from February 6. The visit assumes significance as an uncertainty prevails over the inclusion of foreign judges, after Lankan President Maithripala Sirisena in an interview to BBC Sinhala last week ruled out the participation of foreign judges in the inquiry Press Trust of India, February 2, 2016 http://www.india.com/news/world/un human rights chief zeid raad al hussein to visit sri lanka this week 911865/ Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 29

P OTENTIAL AVENUES OF J USTICE Are there other prospects of justice for the victims of international crimes? Sri Lankan Domestic Courts The High Commissioner s Report is clear and unequivocal justice not possible in Sri Lankan Domestic Courts. Sirisena s recent statements are of concern. Hybrid Court Recommended by High Commissioner. Rejected by Human Rights Council Could be considered again if Sri Lanka courts are seen to have failed. The International Criminal Court The International Court of Justice UNSC Ad hoc Tribunal Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 30

I NTERNATIONAL C RIMINAL C OURT The International Criminal Court o The International Criminal Court (ICC) was established in 1998 with its seat in The Hague. It is an intergovernmental organization with jurisdiction over serious international crimes including genocide, crimes against humanity and war crimes. o It has jurisdiction over crimes committed on the territory of states parties or by citizens of a state party. Its jurisdiction is complementary (only if national courts cannot or do not adjudicate case. o UNSC can refer cases under Chapter 7. Pros ICC has subject matter jurisdictions over all of the international crimes. Tamil and Sinhalese victims would have the right to participate in the proceedings through representatives. Court could enter final adjudications on genocide, crimes against humanity and war crimes. Cons Sri Lanka is not a member of the Rome Treaty and therefore there is no clear path for jurisdiction. The Court still suffers from delays and capacity problems. No guarantee that the court could meet the challenges of the case even if came before it. February 3, 2016 Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 31

I NTERNATIONAL C OURT OF J USTICE The International Court of Justice o The International Court of Justice (ICJ) was established in 1945 through the UN Charter. Its seat is in the Peace Palace in The Hague. o o o Its primary task is to settle disputes between UN member states. It can also issue advisory opinions submitted by qualified intergovernmental organizations. It has jurisdiction over the crime of genocide. Pros The ICJ has jurisdiction over alleged state violations of the Genocide Convention. Cons Only states can initiate cases before the ICJ. The ICJ would not have jurisdiction over crimes against humanity or war crimes Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 32

Ad hoc international criminal tribunals o Ad Hoc Tribunals are international criminal tribunals with jurisdiction over specific conflicts or events. They can be set up through a UNSC resolution pursuant to Chapter 7 of the UN Charter or by agreement with the affected state. o They can be fully independent tribunals (ICTY, ICTR) or hybrids in which a national court is internationalized by incorporating international prosecutors and judges (STL, SCSL, ECCC). A D H OC C RIMINAL T RIBUNAL Pros Tribunals focus on one conflict or event and therefore can investigate more comprehensively and prosecute more perpetrators. Ad hoc court could have jurisdiction over violations of Sri Lankan law, international humanitarian law and international criminal law. Cons All permanent members of the UNSC (with veto power) supported A/HRC/30/1. Unlikely at this time they would ever pass a resolution to create such a court. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 33

P OTENTIAL AVENUES OF J USTICE The Prospects for Justice Sri Lankan Domestic Courts Hybrid Court The International Criminal Court The International Court of Justice The High Commissioner s Report is clear and unequivocal justice not possible in Sri Lankan Domestic Courts. Sirisena s recent statements of concern. Recommended by High Commissioner. Rejected by Human Rights Council Could be considered again if Sri Lanka courts are seen to have failed. Sri Lanka is not a member of the ICC no clear path to jurisdiction. The ICJ only has jurisdiction over cases between states. Tamil minority cannot initiate case. UNSC Ad hoc Tribunal The UNSC could legally establish an ad hoc tribunal under Chapter 7. US, China and Russia, all permanent members oppose this. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 34

How should Sri Lanka s actions be evaluated? The commitments Sri Lanka undertook in HRC resolution 30/1 serve as benchmarks. Many of the cases are straightforward from the perspective of investigation and prosecution. There are several efforts underway to monitor and assess the work of the Sri Lankan courts. E VALUATING S RI L ANKA S A CTIONS 18. Requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights, and to present an oral update to the Human Rights Council at its thirty second session [June 2016], and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty fourth session [March 2017]; Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 35

E VALUATING S RI L ANKA S A CTIONS In HRC Resolution A/HRC/30/1 the government of Sri Lanka made more than 12 specific commitments: Commitments expressed commitment of the Government of Sri Lanka to address issues, including those involving [ongoing] sexual and gender based violence and torture, abductions, as well as intimidation of and threats against human rights defenders and members of civil society (page 2) the expressed commitment of the Government to ensure dialogue and wide consultations with all stakeholders [with respect to the full range of judicial and non judicial accountability mechanisms] (page 2) Welcoming the commitments of the Government of Sri Lanka to the devolution of political authority (page 3) commitment of the Government of Sri Lanka to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations by engaging in broad national consultations with the inclusion of victims and civil society, which will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices. (para. 3) the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating the full range of judicial and non judicial measures further welcomes the willingness of the Government to give each mechanism the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner (para. 4) its commitment to review the law [updated witness & victim protection law], and encourages the Government to strengthen these essential protections by making specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges (para. 9) the commitment of the Government of Sri Lanka to review the Public Security Ordinance Act (para. 12) the commitment of the Government of Sri Lanka to repeal the Prevention of Terrorism Act. (para. 12) the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay (para. 13) the commitment of the Government of Sri Lanka to release publicly previous presidential commission reports (para. 14) the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, the devolution of political authority full enjoyment of human rights by all members of its population the Government to ensure that all Provincial Councils are able to operate effectively (para. 16) the commitment of the Government of Sri Lanka to issue instructions clearly to all branches of the security forces that violations of international February 3, human rights law and international humanitarian Congressional law Caucus are prohibited on Ethnic and and that Religious those responsible Freedom will in be Sri investigated Lanka and punished (para. 17) 36 2016

E VALUATING S RI L ANKA S A CTIONS In HRC Resolution A/HRC/30/1 the HRC made more than 11 specific requests: Requests Encourages the Government of Sri Lanka to continue to cooperate with special procedure mandate holders, including by responding formally to outstanding requests (para. 19) encourages the Government of Sri Lanka to implement the recommendations contained therein [OISL Report] (para. 1) encourages the continuation of that engagement in the promotion and protection of human rights and in exploring appropriate forms of international support for and participation in Sri Lankan processes for seeking truth and justice (para. 2) Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission (para. 7) Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively the recommendations of the report of the Office of the High Commissioner, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations (para. 7) encourages the Government of Sri Lanka to introduce effective security sector reforms 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 (para. 8) encourages the Government to strengthen these essential protections by making specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges (para. 9) encourages the Government of Sri Lanka to accelerate the return of land to its rightful civilian owners (para. 10) Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and to hold perpetrators to account and to take steps to prevent such attacks in the future (para. 11) Encourages the Government of Sri Lanka to develop a mechanism for preserving all existing records relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions (para. 15) Encourages the Government of Sri Lanka to continue to cooperate with special procedure mandate holders, including by responding formally to outstanding requests (para. 19) Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 37

How should Sri Lanka s actions be evaluated? The commitments Sri Lanka undertook in HRC resolution 30/1 serve as benchmarks. E VALUATING S RI L ANKA S A CTIONS Many of the cases are straightforward from the perspective of investigation and prosecution. Video recording of the summary execution of captured LTTE fighters by uniformed government troops. There are several efforts underway to monitor and assess the work of the Sri Lankan courts. Video recording of the summary execution of Muslim men and boys by uniformed members of the Scorpion Unit near Sarajevo, Bosnia and Herzegovina. Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 38

Final Comments: The gravity of the crimes for which the OISL found reasonable grounds for cannot be overstated. Time is of the essence. As time passes it becomes more difficult to investigate and prosecute perpetrators. E VALUATING S RI L ANKA S A CTIONS Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka 40