Untitled - International Commission of Jurists

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government agencies may be unable or reluctant to pursue, or with regard to which the public may not trust the regular criminal justice system to act: first, they determine as best as possible – usually below the standard of ‘beyond a reasonable doubt’ – the truth about the circumstances in which alleged harms were committed, including the level of state involvement and the disclosure of crimes that merit individual determinations of guilt (beyond a reasonable doubt) and delivery of justice by criminal courts; second, they make their findings public, satisfying the public demand for acknowledgement and clarification of the harms and the level of state responsibility; and, third, they can recommend policy and institutional reform measures to prevent recurrence. 2 The first two chapters describe the political and historical context, the response of Sri Lanka’s Supreme Court and Court of Appeal to grave human rights abuses and a series of illustrative cases that has shaped the criminal justice system and impacted on the independence of the judiciary. This overview goes beyond 2001 and traces important changes in the role of the judiciary and its relationship to the executive branch up to the present day. No such significant change has occurred in the way the criminal justice system functions as a whole since 2001, and the analysis of this system is limited to illustrative cases prior to 2001. This historical record is one of a failure of all three branches of the state – the executive, legislature, and judiciary – in guaranteeing remedies and reparations for victims of human rights violations. The data is sufficient to establish that the failure of the justice system as well as the patterns of impunity disclosed therein, are systemic. The nature of this failure explains why, without systemic reform, we cannot expect a different response by the legal system to existing patterns of violations. Chapters three and four describe and assess successive commissions of inquiry in Sri Lanka established between 1977 and 2001 to respond to allegations of gross human rights violations in the form of enforced disappearances and extra-judicial, arbitrary or summary executions. The concept of ‘gross’ human rights violations as used here refers to violations of non-derogable human rights causing irreparable harm that are frequently codified as crimes under international law. In addition to those crimes that are the noted focus of this report, other related categories of gross violations include genocide 3 , crimes against humanity, 4 and war crimes. 5 2 Reparations principles include guarantees of non-repetition, which are particularly important where gross violations have occurred and led to demands by citizens for a public accounting and steps to prevent recurrence. See Art. 23, United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 3 Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group – see Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide - Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948. 4 Article 7 of the Rome Statute of the International Criminal Court defines crimes against humanity as “any of the following acts [including enforced disappearances and torture], when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack […]” (Document A/CONF.183/9 of 17 July 1998, corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The 9
Successive commissions of inquiry into gross human rights violations have been unable to overcome the systemic weaknesses of the criminal justice system analyzed in the first half of the report. The same analysis can be applied to the commission of inquiry established by the Government of Sri Lanka in 2006 to investigate fifteen (later increased to sixteen) selected incidents of grave human rights violations, all of which occurred due to the conflict in the North and East, was predestined to be a failure right from the start. This most recent commission of inquiry wound up its proceedings in June 2009 prior to completion of its tasks due to its mandate not being extended by the Presidential Secretariat. 6 Chapter five draws upon the historical record contained in the preceding chapters in analyzing as a whole the state’s response to violations of the right to life. This chapter proceeds through a series of categories, from the conduct of investigations and prosecutions to trends in judicial decision-making, and a number of other crucial matters including witness protection and respect for international human rights norms. 7 What follows is a summary of some of the key themes discussed in more detail in the report. 1. Commissions of Inquiry The following multiple focus is reflected in the analysis: 1) Examination of the establishment, functioning and findings of Commissions of Inquiry from 1977 to 2001, effectively covering the entire gamut of such bodies Statute entered into force on 1 July 2002). This definition has also been retaken by the UN Human Rights Committee in it s General Comment No 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para 18. 5 Article 8 of the Rome Statute defines war crimes as “grave breaches” of the aws of armed conflict as codified in the Geneva Conventions of 1949, including acts against protected persons such as wilful killings, torture, denial of fair trial, and attacks on civilian populations. Customary international law requires all states to prosecute or extradite persons alleged to have committed grave breaches of the Geneva Conventions. 6 The full report of this Commission has yet not been made public. For recent critiques of the Commission’s functioning, see Amnesty International’s ‘Twenty Years of Make-Believe, Sri Lanka’s Commissions of Inquiry,’ June 2009 and University Teachers for Human Rights (Jaffna); A Travestied Investigation, Erosion of the Rule of Law and Indicators for the Future of Minorities in Lanka, Special Report No 33, 2009. 7 Two sets of guidelines are standard references, and are included in full in annexes to this report: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, Resolution adopted by the General Assembly, 16.12.2005 (hereinafter: UN Principles on Reparation); UN Updated Set of principles for the protection and promotion of human rights through action to combat impunity, Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1, 08.02.2005 (hereinafter: UN Updated Principles on Impunity), also recommended by the Commission on Human Rights Resolution E/CN.4/RES/2005/81, 21.04.2005. The UN Commission has noted in its resolutions on impunity that these principles already have been applied at regional and national levels: E/CN.4/RES/2004/72, 21.04.2004, para 16; E/CN.4/RES/2003/72, 25.04.2003, para 14; E/CN.4/RES/2005/81, para 21 10
Page 2 and 3: In exploring what constitutes a ver
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Page 6 and 7: ABBREVIATIONS AC AG AHRC AI A-L ALR
Page 8 and 9: TAB TELO TUF TULF TYL UN UNHRC UNP
Page 12 and 13: appointed under the Commissions of
Page 14 and 15: communities. Krishanthi Kumaraswamy
Page 16 and 17: investigative function that could m
Page 18 and 19: measures recommended in regard to r
Page 20 and 21: and Bandaranaike became the prime m
Page 22 and 23: assembly and association of trade u
Page 24 and 25: majority pro-Sinhala political lead
Page 26 and 27: The violence reached a crescendo in
Page 28 and 29: enforced disappearances were report
Page 30 and 31: The Court of Appeal dismissed petit
Page 32 and 33: process and commissions of inquiry
Page 34 and 35: Declaration on Upholding Human Righ
Page 36 and 37: terms, 66 and clear guidelines laid
Page 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
Page 48 and 49: The ineffectiveness of the writ rem
Page 50 and 51: The Court of Appeal when sending th
Page 52 and 53: anything. We have received informat
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
Page 58 and 59: police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
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Interdiction from service of allege
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The Batalanda Commission recommende
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3.3.3. The Bindunuwewa Commission D
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ecommendation to this effect by the
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As of 31 December 2000, according t
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much affected by the awareness that
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Chapter Four - Evaluating Sri Lanka
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pattern of harms, to recommend meas
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justified and spelled out in the ma
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against any particular soldier or s
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analysis, these pillars of the judi
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competence. Their findings must be
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Regardless of the amendment however
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It was recorded by at least some of
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6.4. Affording alleged perpetrators
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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