The Hybrid Court

By Nihal Jayawickrama –September 26, 2015

Dr. Nihal Jayawickrama

The hybrid court, which the UN High Commissioner for Human Rights has recommended for Sri Lanka, is a unique element in the human rights based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for serious crimes arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. Countries emerging from conflict have often failed to incorporate such crimes into their penal systems. They have weak or debilitated law enforcement mechanisms, compromised judicial systems, and a legacy of serious human rights violations without adequate means to address them.

Commencing at the turn of this century, hybrid courts were established, or are functioning, in several countries, notably Kosovo, Timor Leste, Bosnia and Herzegovina, Sierra Leone, Cambodia, Burundi and Lebanon. It is not suggested that Sri Lanka is comparable to any of these countries. Yet, in many significant respects, the Sri Lankan legal and judicial system has, in the past few decades, failed its multi-ethnic and multi-religious population, and has demonstrated that it lacks the will and the capacity to address such serious crimes.

War Crimes and Crimes against Humanity

War Crimes and Crimes against Humanity, as well as Enforced Disappearances, have not been criminalized in Sri Lanka. Neither the International Covenant on Civil and Political Rights (which the Jayewardene Government acceded to) and its Optional Protocol (which the Kumaratunga Government ratified), nor the International Covenant on Economic, Social and Cultural Rights, have yet been incorporated in our law. No effective mechanism has yet been established for the protection of witnesses and victims of crime. In 2006, Chief Justice Sarath Silva suspended the application to Sri Lanka of international human rights treaties, holding that their ratification was an infringement of the Constitution. His judgment has been described by a world renowned jurist as “an example of judicial waywardness”, requiring a new judicial value to be added to the Bangalore Principles of Judicial Conduct to address “judicial eccentricity”. Another referred to it as “Alice in Wonderland reasoning”. Therefore, we lack the legal framework within which accountability can be established for such crimes. The process of remedying that deficiency may benefit from expertise, whether international or otherwise.

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