Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
government agencies may be unable or reluctant to pursue, or with regard to which<br />
the public may not trust the regular criminal justice system to act: first, they determine<br />
as best as possible – usually below the standard <strong>of</strong> ‘beyond a reasonable doubt’ – the<br />
truth about the circumstances in which alleged harms were committed, including the<br />
level <strong>of</strong> state involvement and the disclosure <strong>of</strong> crimes that merit individual<br />
determinations <strong>of</strong> guilt (beyond a reasonable doubt) and delivery <strong>of</strong> justice by<br />
criminal courts; second, they make their findings public, satisfying the public demand<br />
for acknowledgement and clarification <strong>of</strong> the harms and the level <strong>of</strong> state<br />
responsibility; and, third, they can recommend policy and institutional reform<br />
measures to prevent recurrence. 2<br />
The first two chapters describe the political and historical context, the response <strong>of</strong> Sri<br />
Lanka’s Supreme Court and Court <strong>of</strong> Appeal to grave human rights abuses and a<br />
series <strong>of</strong> illustrative cases that has shaped the criminal justice system and impacted on<br />
the independence <strong>of</strong> the judiciary. This overview goes beyond 2001 and traces<br />
important changes in the role <strong>of</strong> the judiciary and its relationship to the executive<br />
branch up to the present day. No such significant change has occurred in the way the<br />
criminal justice system functions as a whole since 2001, and the analysis <strong>of</strong> this<br />
system is limited to illustrative cases prior to 2001. This historical record is one <strong>of</strong> a<br />
failure <strong>of</strong> all three branches <strong>of</strong> the state – the executive, legislature, and judiciary – in<br />
guaranteeing remedies and reparations for victims <strong>of</strong> human rights violations. The<br />
data is sufficient to establish that the failure <strong>of</strong> the justice system as well as the<br />
patterns <strong>of</strong> impunity disclosed therein, are systemic. The nature <strong>of</strong> this failure explains<br />
why, without systemic reform, we cannot expect a different response by the legal<br />
system to existing patterns <strong>of</strong> violations.<br />
Chapters three and four describe and assess successive commissions <strong>of</strong> inquiry in Sri<br />
Lanka established between 1977 and 2001 to respond to allegations <strong>of</strong> gross human<br />
rights violations in the form <strong>of</strong> enforced disappearances and extra-judicial, arbitrary or<br />
summary executions. The concept <strong>of</strong> ‘gross’ human rights violations as used here<br />
refers to violations <strong>of</strong> non-derogable human rights causing irreparable harm that are<br />
frequently codified as crimes under international law. In addition to those crimes that<br />
are the noted focus <strong>of</strong> this report, other related categories <strong>of</strong> gross violations include<br />
genocide 3 , crimes against humanity, 4 and war crimes. 5<br />
2 Reparations principles include guarantees <strong>of</strong> non-repetition, which are particularly important where<br />
gross violations have occurred and led to demands by citizens for a public accounting and steps to<br />
prevent recurrence. See Art. 23, United Nations Basic Principles and Guidelines on the Right to a<br />
Remedy and Reparation for Victims <strong>of</strong> Gross Violations <strong>of</strong> <strong>International</strong> Human Rights Law and<br />
Serious Violations <strong>of</strong> <strong>International</strong> Humanitarian Law, A/RES/60/147, 21 March 2006.<br />
3 Genocide means any <strong>of</strong> the following acts committed with intent to destroy, in whole or in part, a<br />
national, ethnical, racial or religious group, as such: (a) Killing members <strong>of</strong> the group; (b) Causing<br />
serious bodily or mental harm to members <strong>of</strong> the group; (c) Deliberately inflicting on the group<br />
conditions <strong>of</strong> life calculated to bring about its physical destruction in whole or in part;(d) Imposing<br />
measures intended to prevent births within the group; (e) Forcibly transferring children <strong>of</strong> the group to<br />
another group – see Article 2 <strong>of</strong> the Convention on the Prevention and Punishment <strong>of</strong> the Crime <strong>of</strong><br />
Genocide - Adopted by Resolution 260 (III) A <strong>of</strong> the United Nations General Assembly on 9 December<br />
1948.<br />
4 Article 7 <strong>of</strong> the Rome Statute <strong>of</strong> the <strong>International</strong> Criminal Court defines crimes against humanity as<br />
“any <strong>of</strong> the following acts [including enforced disappearances and torture], when committed as part <strong>of</strong><br />
a widespread or systematic attack directed against any civilian population, with knowledge <strong>of</strong> the<br />
attack […]” (Document A/CONF.183/9 <strong>of</strong> 17 July 1998, corrected by procès-verbaux <strong>of</strong> 10 November<br />
1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The<br />
9