Untitled - International Commission of Jurists

large part why successive commissions of inquiry described above have lacked
sufficient independent leverage to go beyond documenting past violations to wielding
sufficient influence in order to address impunity both in terms of prosecutions and its
legislative and administrative underpinnings. These systemic elements of impunity are
examined in detail in the next chapter. While it is beyond the scope of this report,
others have already examined in detail this apt observation by the Special Rapporteur
in relation to Sri Lanka’s 2006 Commission of Inquiry. 405
There are notable exceptions. As mentioned above, the 1994 Southern, Western and
Sabaragamuwa Disappearances Commission provided useful recommendations
regarding the habeas corpus remedy (analyzed in detail in the next chapter). At the
time this Commission was sitting, this remedy was frequently used in cases of
enforced disappearances. 406 The Commission identified various deficiencies in the
way remedy was treated by the Court of Appeal and recommended important reforms.
Even in those very rare cases where the findings of the 1994 Disappearances
Commissions were used in later judicial proceedings, this use was at times to the
disadvantage of the victim. For example, the 1994 Commissions duly recorded the
evidence of the family members of victims to the effect that state officers were not
responsible for the enforced disappearances of their loved ones. They had made these
statements due to their desire to obtain compensation that, according to the circular
applicable at that time, was payable only if the death was caused by non state forces.
This was, of course, a transparent and deliberate intent of the government to compel
family members of victims to transfer responsibility from government forces to non
state actors. At the time, devastated families acquiesced to this Kafkaesque
bureaucratic requirement as part of their own survival tactics. This harsh reality was
routinely ignored by the courts, however, when the same family members testified to
the identity of state perpetrators before the Commissions. Their testimony was
disbelieved on the basis of compelled, but nonetheless contradictory, statements in
their earlier compensation claims.
An important part of the advisory role of commissions is determined finally by the
ultimate fate of the final commission report, which, in principle, ought to be made
public in full and widely disseminated in keeping with its role in publicly establishing
the truth, recommending reparations, including measures to avoid a repetition of
harms, and promoting judicial and other remedies. 407
Unfortunately, in some cases, as noted above, commission proceedings were held in
secret or reports went unpublished. In such circumstances, the right of victims and
family members to truth, and the legitimate demand of citizens for measures to
prevent recurrence of violations, was left unfulfilled.
There is a clear need for law and policy reforms that, at the very least, confer some
measure of authority on the findings and recommendations of commissions of inquiry
that are duly constituted with independence and guarantees of impartiality and
405 See Amnesty International, ‘Twenty Years of Make-Believe, Sri Lanka’s Commissions of Inquiry,
June 2009.
406 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission,
Sessional Paper No V, 1997, at pp. 98-110.
407 Principle 13, UN Updated Principles to Combat , supra note 7.
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