THE GENEVA RESOLUTION AND

POLITICS: A NOTE OF CAUTION

by Niran Anketell

on 10/10/2015

The recent Human Rights Council resolution on Sri Lanka is a remarkable

document. Crafted in the immediate aftermath of the devastating OISL
Report on Sri Lanka whose central recommendation was that a special
hybrid court be established in Sri Lanka, and despite some hiccups during
negotiations, a resolution eventually acceptable to a wide range of parties
found uncontested passage through the Council. The governments
eventual co-sponsorship of the resolution signaled their full acceptance of
its language. In exchange for its support, the Sri Lankan government was
rewarded with text that congratulated it, and approvingly recognized many
of its voluntary commitments. Moreover, the resolution offered the
government the interpretive space to claim to its domestic audience that it
had overcome a challenging trial in Geneva. On the Tamil side of the
equation, the moderates of the Tamil National Alliance who roundly

defeated their extremist opponents in recent elections also welcomed the

resolution on account of the strength of its content.
A measure of Sinhala-Tamil consensus on accountability a precondition for
genuine reconciliation in Sri Lanka appeared possible for the first time
since 2009. The resolution referenced many of the key demands of human
rights defenders and Tamil political leaders from Sri Lanka. The operative
paragraphs of the resolution echoed UN High Commissioner Zeids call for a
special hybrid court by affirming the importance of Commonwealth and
other foreign judges, lawyers, prosecutors and investigators participating
in a Sri Lankan judicial mechanism; indicated the need for the incorporation
of international crimes into Sri Lankan law with retroactive effect till at least
2002; highlighted the importance of security sector reform including vetting
and lustration; and recognized a number of sweeping commitments by the
government including promises to effect a political settlement through
constitutional measures, establish a Truth Commission and a discrete
mechanism to trace the disappeared, establish an office for reparations,
repeal the draconian Prevention of Terrorism Act, strengthen witness
protection laws and policies, and allow Transitional Justice mechanisms the
freedom to call on international assistance.
In short, the resolution set out an ambitious Transitional Justice agenda for
Sri Lanka: one that, if implemented properly, would certainly mark Sri Lanka
out as a rare Asian success for Transitional Justice. That such a resolution
could indeed be agreed on between the international community and Sri
Lanka on the one hand, and between politically victorious Sinhala and Tamil
leaders on the other is a tremendous sign of improvement. And yet, Sri
Lankas complex politics appears to already be putting at risk the
encouraging gains from earlier this month.

Jude Fernandos perceptive recent article titled Domesticated Hybrid

Court: Will Buddha Prevail Over Hegel & Marx? perfectly captures the
governments failings with respect to this resolution. Having agreed in
Geneva to establish what international lawyers would unhesitatingly term a
blueprint for some form of hybrid court, the governments posturing at
home has been inconsistent and woefully shortsighted. Its continuous
assertions that the international component in the resolution only involves
technical advice and assistance and not participation in trials fly in the face
of the clear text of the resolution. The government is entitled to call the
proposed court whatever it wants and may choose not to term the court
hybrid even the agreement to establish a UN administered hybrid court
in Cambodia described the envisaged court as one that would be within the
existing court structure of Cambodia but it must not seek to mislead its
own constituency on the nature of the international participation in trials to
which it has assented. There are promising signs of the government seeking
broad civil society support to create space in the broader Sinhala speaking
public within which the resolution could become acceptable, but even these
efforts are plagued by a fudging of the international participation question.
Instead of patiently doing the work of explaining the importance of a
substantial international component in trials relating to serious crimes, the
government has chosen instead to play word games, proudly claiming that
it has averted the dreaded hybrid court. The current trajectory is a
dangerous one. If the government is eventually forced to deliver on its
unequivocal promises, it risks allegations of betrayal from within its
constituency. If however it reneges on its commitments, it risks
international censure from without and will inflame Tamil opinion from
within. The cynical point of view shared by a surprisingly large number of
reasonable people is that the government lacks the basic political will to
carry out its commitment, and is deliberately establishing the contours of
acceptable international involvement, which would then establish fait

accompli of sorts. In other words, domestic opinion is being shaped, and

once shaped, will be used to seek leave from its own commitments. These
fears will only grow with time. If the government is to prevent them, it must
change the terms of interactions with its own people. Simply put, it cannot
say one thing in Colombo and another in Geneva, or one thing in Colombo
to Geneva and another in Colombo to Colombo.
On the Tamil side of the equation, there are serious political challenges as
well. Instead of recognizing the potency of the communitys struggle for
justice demonstrated by its Geneva success a struggle that has made
unprecedented strides under the most challenging of circumstances in a
relatively short period of time there is a tendency to assume defeat if only
because the government claims victory. In this view, the Sri Lankan state
and the Tamil people are locked in a zero sum game, and where the
government wins, the Tamils lose. The Tamil press which diligently watches
the behaviour of Sinhala politicians has largely concluded that because the
government characterizes the resolution as one in support of a domestic
mechanism, a purely domestic mechanism is what has been agreed in
Geneva. Meanwhile a few foreign campaigners who worked tirelessly but in
the international spotlight during the days of the Rajapaksa regime to keep
the accountability agenda alive, perhaps conscious of their declining
relevance, are keen to advance the spurious claim that while the OISL
Report called for a hybrid court, the resolution did not, and that the final
text is some kind of sell-out. Hardline Tamil political parties and their
supporters also follow suit.
Much of this confusion within the Tamil discourse on the resolution stems
from a fundamental misconception over what a hybrid court means. As
scholars have previously pointed out, and as my colleague Rhadeena de
Alwis and I explain in our paper on a hybrid court for Sri Lanka, there is no

model version of an ideal hybrid court. Instead, they come in different

shapes and sizes, and each model must be designed to fit the legal and
political context in which it is established. In almost all functioning countries
in which such courts exist, they are established within the constitutional
structure of the country concerned, often through domestic legislation.
While there is no definition of what a hybrid court is, the hybridity at play
is usually found in the composition of the personnel and lawyers involved in
the trials, and the substantive law applied in the court.
The pointless debate over whether the court envisaged by the resolution is
a hybrid court or a domestic court with international participation is not
merely misplaced as a matter of international legal practice and linguistic
common sense, but diverts attention from a series of more fundamental
questions. These questions relate to how such a court would ensure
independence of judges, prosecutors and lawyers whether local or
foreign? How would the capacities necessary for the trial of system crimes
be sourced? What would be the role of the UN High Commissioner for
Human Rights in supporting this court? Who would be responsible for
appointments to the office of the prosecutor? On what basis would the
procedural law relating to the court be adopted, and what would be its
content? What standing would victims have in the trials, and how would
they be protected? Would victims be entitled to court ordered reparations?
There are a gamut of similar questions that require rigorous work,
application and negotiation. In the final analysis, it is the way in which
these questions and similar questions are answered and not the
nomenclature adopted to describe the court that would determine the
success and failure of a special judicial mechanism. These are the questions
to which victims and their representatives should focus their attention, for
this is where the battle for justice really lies. The task of influencing policy
in Sri Lanka is difficult, but it is no longer impossible. International pressure

is indubitably essential if not the most important tool towards that end, but
it is not the only one. A strategy of waiting and watching till the
government unfolds its mechanisms is doomed to fail. Instead, civil society
and victims representatives must force open the debate, win the battle of
ideas, mobilize pressure and influence decision makers.
On the Tamil front, while remedying intentionally manufactured
misconceptions is difficult, it is the responsibility of moderate politicians
and responsible Tamil civil society actors to explain properly the workings of
the Geneva process and the content and promise of the resolution to their
communities. The Tamil National Alliance has a responsibility to mobilize its
mammoth ground game a key contributor to its electoral fortunes to
now create awareness within the communities its represents. Failure to do
so would be too costly: disillusionment eventually leads to apathy and
disengagement for some, and may encourage others to radicalize. If a
motivated, mobilized and sophisticated struggle for justice is to emerge
from within victim communities, preventing bitterness, cynicism and
defeatism is key.
Right thinking Sri Lankans now have a historic opportunity to pursue
redress for victims and roll back decades of impunity and establish the rule
of law. To do this however, the political background must provide a
conducive platform for implementation. That platform has yet to be created
within both the Sinhala and Tamil communities. Unless we fix this problem,
we risk failure, and we simply cannot afford failure.
Posted by Thavam