Featured image courtesy Al Jazeera

In a paper published recently, Eleanor Vermunt and I argued that international crimes must be incorporated into Sri Lankan law with retroactive effect in order to enable meaningful prosecutions of atrocity crimes allegedly committed in Sri Lanka.

Since the end of the armed conflict, allegations of violations of international humanitarian law and international human rights law have been reported by various official and unofficial sources. According to several UN reports, these allegations—if proven—would amount to crimes against humanity and war crimes.

The term ‘international crimes’ is generally used to refer to offences that have been included under the jurisdiction of the international and hybrid tribunals, and the International Criminal Court. They comprise genocide, crimes against humanity and war crimes. These crimes are labeled as the ‘most serious crimes of concern to the international community’ and as those that ‘deeply shock the conscience of humanity’. They constitute acts which damage vital international interests, impair the peace and security of the international community, and violate universal moral values and humanitarian principles.

Sri Lankan domestic law does not specifically criminalise genocide, crimes against humanity and war crimes committed in the context of a non-international armed conflict. This is problematic for a number of reasons. First, domestic crimes are fundamentally ill-suited to deal with wartime abuses and violations that occurred as a result of the conduct of hostilities. In fact, if ordinary crimes were to be applied, some conduct may be deemed criminal under Sri Lankan law even if it was in compliance with international humanitarian law. For instance, as explained in our paper, the targeting and killing of persons directly participating in hostilities could constitute murder under Sri Lankan law while being lawful under International Humanitarian Law (IHL). On the other hand, some egregious violations of IHL that evidenced an absolute disregard for civilian lives—such as the use of human shields or the denial of humanitarian relief—cannot be prosecuted as such because there are no corresponding offences under Sri Lankan law. Further, as pointed out by several domestic and international courts, the prosecution of international crimes as ordinary crimes is deeply inadequate as it does not reflect the gravity of the criminal conduct, and risks trivialising atrocity crimes. Therefore, even if such conduct were to be prosecuted as domestic offences, such prosecutions would not serve a deterrent purpose or establish a narrative about the gravity of the crimes that were perpetrated.

International law recognizes that those most responsible must be held accountable for atrocity crimes. The paper claims that unless international crimes and modes of liability are incorporated into Sri Lankan law, individuals most responsible for atrocity crimes cannot be effectively prosecuted. This is because Sri Lankan law does not specifically provide for modes of responsibility such as command and superior responsibility, joint criminal enterprise or even ordering. These modes of responsibility are essential to enable the prosecution of those who had the means to design, carry out or facilitate the commission of international crimes and therefore are, according to international law, those most responsible for atrocity crimes. Because Sri Lankan law does not provide for international modes of responsibility, any prosecutions—if conducted under existing Sri Lankan law—would likely focus on those lower down the chain of command and on ‘trigger pullers’ who carried out orders received from their superiors. Prosecuting these individuals rather than those in positions of leadership will fail to meet victims’ demands for justice, undermine public support for trials and breed resentment among the fighting cadre of the armed forces.

It is therefore critical that international crimes and modes of responsibility are incorporated into Sri Lankan law with retroactive effect. Such a retroactive incorporation of international crimes into Sri Lankan law would ensure that the new crimes and modes of liability cover conduct that took place prior to legislative change. It must be noted however that ‘retroactive’ is a misnomer in this context. In fact, although international crimes are not per se specifically criminal under Sri Lankan law, they have long constituted crimes under international law. Therefore, there is no doubt that the conduct in question was reprehensible and that the criminal nature of the conduct was foreseeable at the time of the commission. This explains why such a ‘retroactive’ incorporation of international crimes into domestic law would be permitted by article 13(6) of the Sri Lankan constitution. Interestingly, Sri Lanka’s Court of Appeal in the Sepala Ekanayake case has relied on this article to justify the passing of retroactive sections of the Offences Against Aircraft Act of 1942.

Article 13(6) mirrors the provision of the International Covenant on Civil and Political Rights regarding the prosecution of acts that were criminal according to the general principles of law recognized by the community of nations at the time of their commission. This provision of the ICCPR was introduced as an exception to the non- retroactive application of criminal law precisely to cover crimes that shock the conscience of humanity and are accordingly criminal under international law. It is on this basis that, after the Second World War, a number of countries have introduced legislation criminalizing crimes such as war crimes and crimes against humanity in order to prosecute crimes committed in the past.

The Sri Lankan government explicitly committed to this course in October last year when it co-sponsored a resolution at the UN Human Rights Council (HRC) titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. Paragraph 7 of the resolution reads that the HRC:

Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments […] 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 […] including during the period covered by the Lessons Learnt and Reconciliation Commission.

While an earlier version of the resolution referred to ‘international crimes including those committed in the past’, the final version of resolution 30/1 directly imports its language from article 13(6) of the Sri Lankan constitution to urge a reform of domestic law that would enable the prosecution of atrocity crimes that took place from 2002 to 2011, which was the period covered by the LLRC.

It is therefore essential that the Sri Lankan government fulfils its own commitment in a manner that would enable justice for victims, fair treatment of those accused, and the rule of law for all.