Untitled - International Commission of Jurists

Kumarapuram (11 February 1996), at Mylanthanai (9 August, 1992) and at
Thambalagamam (1, February 1998), received no such special treatment. The context
in which the violations occurred in these situations were, however, similar, given that
they all involved alleged massacres by army personnel following attacks by the LTTE
designed to provoke a reaction. It appeared that the Kokkadicholai Commission of
Inquiry was established wholly as a result of the wide publicity that the massacre
generated nationally and internationally. Needless to say, while public attention and
demand is often an ingredient in the decision to establish a commission of inquiry, it
is not a sufficient basis, and lends itself to action primarily on the basis of political
expediency.
In other instances of gross human rights violations, ministerial committees or
committees headed by judges and police officers have been appointed to inquire and
report. 387 Such inconsistency in the appointment of these bodies highlights the
arbitrariness of the process.
Successive governments at least indirectly have acknowledged the weakness of the
ordinary criminal investigative mechanism as the basis for establishing these
Commissions. However, actual reform of the investigative mechanisms has been
consistently disregarded. The pattern has instead been to appoint a commission of
inquiry on a reactive basis in response to public pressure and, ultimately, as a means
of glossing over chronic failures in law enforcement and ordinary investigative
mechanisms.
3. Mandate
No commission of inquiry will achieve a useful purpose unless it is able to conduct an
inquiry independently. This is an important area in respect of which lessons may be
learned from the experience of commissions described in the previous chapter. It is
critical, in this regard, to look at whether the commissions of inquiry were structurally
designed to ensure independence and then to examine whether in fact they actually
functioned independently to achieve their mandate.
A second important aspect of the commission mandate is its relationship to the regular
criminal justice system. Commissions of inquiry may disclose crimes that merit
criminal investigations and prosecutions; however, it is important that their terms of
reference clearly distinguish the role of the commission of inquiry from civil,
administrative, or criminal courts. With regard to criminal courts, no other body –
including a commission of inquiry – has jurisdiction to pass judgement on individual
criminal responsibility and punish accordingly. 388 This remains an area of ambiguity
internationally, since commissions of inquiry often will identify perpetrators and
recommend prosecutions that may or may not take place; meanwhile, the rights of
perpetrators to a public defence and fair trial may be jeopardized (this issue is taken
up further below). The key point is that, where a commission appears to take on the
role of a criminal court in assigning individual responsibility, it must be clearly
387 For example, the Ministry of Defence Board of Investigation into Disappearances in the Jaffna
Peninsula (report issued in 1998). In other instances, the Human Rights Commission of Sri Lanka has
made some useful interventions such as the Committee of Disappearances in the Jaffna Region (report
issued in 2002).
388 Principle 8, UN Updated Principles to Combat , supra note 7.
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