A War Crimes Tribunal for Sri Lanka? Examining the Options under International Law

By Jayasinghe, Nihal; Birkett, Daley J. | Case Western Reserve Journal of International Law, Spring 2014 | Go to article overview

A War Crimes Tribunal for Sri Lanka? Examining the Options under International Law


Jayasinghe, Nihal, Birkett, Daley J., Case Western Reserve Journal of International Law


In light of the growing international demands for accountability in relation to alleged war crimes committed in Sri Lanka during its twenty-six-year armed conflict, this article aims to evaluate the options available to both Sri Lanka and the international community under the applicable rules of international law. First, the background to the armed conflict in Sri Lanka will be investigated, with a particular focus on the escalation thereof in 2009. This article will then examine the options available under public international law to address the increasing calls for accountability. Throughout the analysis, comparisons will be drawn between the situation in Sri Lanka and those in which criminal tribunals have been established to prosecute those responsible for perpetrating alleged international crimes. By contrasting the options available in relation to the situation in Sri Lanka with analogous situations, conclusions will be drawn as to the most viable options through which the intensifying demands for accountability might be met under international law.

Contents

  I. INTRODUCTION
 II. SOME ATTEMPTS MADE THUS FAR TO MEET THE DEMANDS FOR ACCOUNTABILITY
III. OPTIONS UNDER INTERNATIONAL LAW
     A. Action by the International Criminal Court
     B. Action by the U.N.: An Ad Hoc Tribunal for Sri Lanka?
     C. The Exercise of Universal Jurisdiction over International
        Crimes
 IV. CONCLUDING REMARKS

I. INTRODUCTION

At the Commonwealth Heads of Government Meeting (CHOGM) held in Sri Lanka from November 10 through 17, 2013, leaders aimed to discuss global and Commonwealth issues and to decide on collective policies and initiatives thereto. (1) However, the undeniable focus of Western media and human rights groups was set on the war crimes allegedly committed in Sri Lanka during the final phase of the armed conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka (GoSL), which resulted in a conclusive victory for the latter in May 2009. (2) Even though--at the time of this writing--over five years have passed since the end of the Sri Lankan conflict, the demand for an investigation of alleged war crimes does not seem to have abated. This article therefore offers an assessment of the options available to both Sri Lanka and the wider international community under international law in order to address the growing demands that those responsible for the perpetration of alleged war crimes be held to account. (3) First, a brief background to the armed conflict in Sri Lanka will be provided, followed by an examination of the attempts already made by the GoSL, the U.N., and non-governmental organizations to meet these intensifying demands.

The Democratic Socialist Republic of Sri Lanka is a sovereign island state situated in the Indian Ocean, having gained its independence from the United Kingdom in 1948. Sri Lanka is an ethnically, linguistically, and religiously diverse nation with a population of 20.3 million people. (4) Of this population, almost 75 percent are ethnically Sinhalese, speak Sinhala, and 70 percent practice Buddhism. (5) There is, moreover, a substantial Tamil minority, and the Tamil language is consequently spoken widely throughout Sri Lanka. Sri Lanka is an independent nation, with an elected legislature and executive. (6) Indeed, the 2011 Report by the U.N. Secretary-General's Panel of Experts on Accountability in Sri Lanka ("Accountability Report") notes that: "Strong indicators of democracy, including universal franchise, a multi-party system and a vibrant electoral process, combined with important human development achievements, such as high literacy rates both for men and women and low infant mortality, contrast sharply with Sri Lanka's long history of war." (7) It is generally agreed that the conflict in Sri Lanka grew out of increasingly violent ethnic tensions, and that 1983 was the starting point of the armed conflict when the GoSL responded with armed force in response to LTTE attacks in the northern district of Jaffna. …

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