Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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pattern <strong>of</strong> harms, to recommend measures to prevent their repetition as well as<br />
reparations, and to provide a basis for prosecutions where crimes are disclosed. 384<br />
The following analysis assesses whether these legitimate purposes have been served<br />
in the case <strong>of</strong> commissions established in Sri Lanka between 1977 and 2001.<br />
2. Establishment<br />
The establishment <strong>of</strong> a commission <strong>of</strong> inquiry is <strong>of</strong>ten a reluctant move by a<br />
government whose immediate political objectives may not be served by an<br />
independent inquiry, but which is prompted at least to appear to take action, as a<br />
consequence <strong>of</strong> domestic and international pressure. 385 This is a common feature <strong>of</strong><br />
the commissions described in the previous chapter, as is the reverse problem, in which<br />
a commission is established for partisan rather than public interest. In neither case are<br />
the interests <strong>of</strong> truth, justice and reparations appropriately served.<br />
This reality highlights both the importance and challenge faced by the state in taking a<br />
principled approach to establishing commissions <strong>of</strong> inquiry. Principle 6 <strong>of</strong> the UN<br />
Principles on Impunity requires the inclusion “broad public consultations” as the basis<br />
for determining the terms <strong>of</strong> reference and composition <strong>of</strong> commissions <strong>of</strong> inquiry.<br />
The consultations should seek especially “the views <strong>of</strong> victims and survivors”, and in<br />
its subsequent investigations, seek to secure “recognition <strong>of</strong> such parts <strong>of</strong> the truth as<br />
were formerly denied”. 386<br />
While <strong>of</strong>ten the result <strong>of</strong> widespread public pressure, including that <strong>of</strong> victims and<br />
their families, the commissions in Sri Lanka have generally not been established<br />
through public consultation, nor does the COI Act <strong>of</strong> 1948 contemplate anything other<br />
than executive fiat in establishing commissions.<br />
The lack <strong>of</strong> sound, non-partisan criteria for establishing commissions <strong>of</strong> inquiry in Sri<br />
Lanka is apparent when one notes similar incidents that did not lead to these<br />
extraordinary measures. For example, although a commission <strong>of</strong> inquiry was<br />
appointed to look into the Kokkadicholai massacre, other massacres such as at<br />
384 See Philip Alston, Report <strong>of</strong> the Special Rapporteur on extrajudicial, summary or arbitrary<br />
executions, A/HRC/8/3, 2 May 2008, para. 12-58, in which he summarizes key purposes and concerns<br />
in relation to commissions <strong>of</strong> inquiry, and lists the main sources <strong>of</strong> international norms as follows;<br />
Principles on the Effective Prevention and Investigation <strong>of</strong> Extra-Legal, Arbitrary and Summary<br />
Executions, E/1989/89 (1989), especially Principle 11; Principles on the Effective Investigation and<br />
Documentation <strong>of</strong> Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General<br />
Assembly resolution 55/89, Annex, especially Principle 5; Updated Set <strong>of</strong> principles for the protection<br />
and promotion <strong>of</strong> human rights through action to combat impunity, Report <strong>of</strong> the independent expert to<br />
update the set <strong>of</strong> principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1 (8<br />
February 2005), especially Principles 6-13; United Nations Manual on the Effective Prevention and<br />
Investigation <strong>of</strong> Extra-Legal, Arbitrary and Summary Executions, Model Protocol for a Legal<br />
Investigation <strong>of</strong> Extra-Legal Arbitrary and Summary Executions (“Minnesota Protocol”),<br />
E/ST/CSDHA/12 (1991); Report <strong>of</strong> the Secretary-General, E/CN.4/2006/89 (15 February 2006), para.<br />
2. Philip Alson, Report <strong>of</strong> the Special Rapporteur on extrajudicial, summary or arbitrary executions,<br />
A/HRC/8/3, 2 May 2008, para. 19.<br />
385 Alston, supra note 384, at para. 19.<br />
386 Updated Set <strong>of</strong> principles for the protection and promotion <strong>of</strong> human rights through action to<br />
combat impunity, Report <strong>of</strong> the independent expert to update the set <strong>of</strong> principles to combat impunity,<br />
Diane Orentlicher, E/CN.4/2005/102/Add.1 (8 February 2005), especially Principles 6-13<br />
109