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Internationalized Criminal Justice?
Following the ICG report, there have been repeated calls for war crimes trials for Sri Lanka, including the creation of an ad hoc international criminal tribunal. Sri Lanka is not a state party to the International Criminal Court (ICC) Statute and thus would not be subject to the jurisdiction of that court in the absence of a referral by the United Nations Security Council. The UN High Commissioner for Human Rights, Navanethem Pillay, called for war crimes trials in May 2011, and was condemned by the Sri Lankan government, while at the UN Human Rights Council, Pakistan, China, Russia and others sought to halt debate about war crimes.77 Given the resistance of two permanent, veto-wielding members of the UN Security Council to even discussing government abuses at the Human Rights Council, it is extremely unlikely that either would permit a referral to the ICC.78 This would not of course bar the possibility of a specialized international tribunal, such as those created for Rwanda and the former Yugoslavia, or even a hybrid body, such as that created for Sierra Leone, Cambodia, and other countries, although again political will could prove problematic.79 The prospects for international criminal
Times (Sri Lanka) (23 January 2011), at http://sundaytimes.lk (accessed 28 February 2011).
justice appear limited given the resistance of the government and the protection of it by powerful states such as Russia and China and the relatively limited pressure applied by the United States, the European Union, or Japan.
Criminal accountability is not the only option to address abuses in Sri Lanka. Another option is civil accountability under the Alien Tort Claims Act in the United States. Such accountability has been imposed since 1980 for violations of the law of nations committed by foreigners outside the United States around the world. In September 2011, a civil case was filed in a federal district court in New York under the Alien Tort Claims Act and Torture Victims Protection Act, claiming that General Shavendra Silva, the acting permanent representative of Sri Lanka to the United Nations, was responsible for torture and other crimes as a commander of the fifty-eighth division of the army in the final stages of the conflict.
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