Untitled - International Commission of Jurists

Chapter Four - Evaluating Sri Lanka’s Commissions of Inquiry
This chapter provides a comparative analysis of Sri Lanka’s commissions of inquiry
between 1977 and 2001 in terms of a standard set of categories including mandate,
composition, proceedings and procedures, powers and resources. As emphasized
below, many of the weaknesses identified also shed light on elements of the regular
criminal justice system that contribute to impunity, analyzed in detail in the next
chapter.
1. Normative Framework
Among the most fundamental principles of international law is the State obligation to
ensure that an independent inquiry occurs where human rights violations are alleged.
Commissions of inquiry are extraordinary means to fulfil this obligation when the
regular justice system is inadequate due to the nature and scope of the alleged
violation or the lack of capacity or will of those responsible of the administration of
justice. However, a commission of inquiry must be understood in relation to the
broader duty of the state to guarantee a remedy and reparations where human rights
violations and crimes are disclosed by such independent inquiries. In other words,
from the perspective of victims, a commission of inquiry can only partially fulfil their
right to truth, justice and reparations. 376
Every state has the obligation – binding on the executive, legislative and judicial
branches – to guarantee an effective and enforceable remedy for violations of human
rights. 377 In the case of violations of rights amounting to gross violations, international
law requires that the state remedy be judicial in nature. In certain other cases,
administrative measures carried out by the executive might be sufficient. 378
International law and jurisprudence has established a set of state obligations that
correspond to the victim’s right to truth, justice, and reparations. As noted, at the most
general level, the state has an overarching obligation to ensure an effective remedy.
This includes the cessation of any ongoing violation, a duty that is relevant in the case
of disappearances, which are an ongoing violation until the fate of the victim is
disclosed. 379 Overlapping with this general obligation are two further duties: first, to
provide an adequate legislative and administrative framework and apparatus for
preventing and responding to violations; and, second, to ensure an independent and
376 For a full analysis of these dimensions of victims’ rights under international law, see International
Commission of Jurists,
377 Article 2, International Covenant on Civil and Political Rights (Adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966,
entry into force 23 March 1976, in accordance with Article 49). For commentary on this obligations,
see Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States
Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).
378 See International Commission of Jurists,
379 “Cessation of an ongoing violation is an essential element of the right to an effective remedy.”
Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States
Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).
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