Untitled - International Commission of Jurists

GW Liyanage, TD Gunewardene, PC 5920 and Cyril Fernando of Wattegama, 352 all
of Sinhalese ethnicity.
In other instances, Sansoni had observed that he was unable to come to a conclusion
regarding the culpability of specific individuals due to their being unknown or being
members of a mob. 353
4.2. The Kokkadicholai Commission Report
No prosecutions resulted from the findings of this Report. The Commission had
recommended, in any event, that further action should be taken only under the
provisions of military law. These recommendations as well as the payment of
compensation were accepted by the Cabinet of Ministers in mid-1992. Also adopted
was the Commission’s recommendation that military authorities give clear
instructions to soldiers not to indulge in or execute extra-military or non-military acts.
The offenders were subsequently brought before a Military Court, which acquitted the
17 Sinhalese army men implicated in the killings of the Tamil civilians, but found the
officer in charge, Captain Kudaligama, guilty on two counts - failure to control his
subordinates and the improper disposal of dead bodies. The army announced in
December 1992 that the officer had been dismissed. 354
This case illustrates the dangers in replacing the normal judicial process with military
trials, resulting in cover-ups with one or two accused being cast as “scapegoats”, as
evidenced in this instance. The reference of the matter to a Military Court by this
Commission effectively amounted to a subversion of the jurisdiction of civilian
courts. Further, though the Commission declined to refer the case to the ordinary
criminal civilian court on the grounds that criminal liability could not be sustained as
the individual perpetrators could not be identified, the Military Court’s finding of
culpability of the officer-in-charge illustrates that indictment may yet have been
possible for the offence of illegal omission under Sections 30 and 31 of the Penal
Code.
Such an indictment was in fact pursued successfully in the High Court against
relevant officers-in-charge by the Attorney General in the Bindunuwewa Case,
discussed later, even though the conviction was overturned by the Supreme Court
pursuant to legal reasoning that has been stringently critiqued. The point needs to be
reiterated however that whatever lacunae that may exist in the ordinary law cannot
serve as a justification for referring cases of grave human rights violations to military
courts. This issue is taken up later in the final chapter.
In addition to ensuring that military tribunals do not have jurisdiction over human
rights violations, law reform is required to incorporate into Sri Lanka’s penal statute a
form of command responsibility that allows superiors to be held responsible both for
dereliction of duty and, where warranted, for the crimes of their subordinates. A
352 Hoole, Rajan, op. cit, at p. 37.
353 Sessional Paper No. VII, July 1980, at p. 259.
354 Abeysekera, Charles, ‘Human Rights 1992 - A Dismal Record,’ Pravada, Social Scientist's
Association, Colombo, 1993.
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