Untitled - International Commission of Jurists

6.4. Affording alleged perpetrators a right of reply
Where the commission has within its mandate the identification of perpetrators,
applicable international standards stipulate two procedures: corroboration of
information before naming individuals publicly in a report and, second, providing the
implicated individuals with an opportunity to provide a statement either at a hearing
or through a documented right of reply included in the commission file. 427
The 1994 Disappearances Commissions, as their reports reveal, did not afford alleged
perpetrators an opportunity to reply publicly to the evidence. Rather, the
Commissions sent the names of alleged perpetrators under separate cover to the
President recommending further investigations wherever the commission had been of
the view that there was credible (prima facie) evidence against persons. 428
Limitations on available time for carrying out the mandate of commissions negatively
impact on the adequacy of procedure, a problem especially clear in the case of the
1994/1998 Disappearances Commissions. For example, inquiries into the alleged
enforced disappearances were not prompt, although the requirement that the
investigations be thorough was satisfied in the main. To their credit, these
Commissions - appointed to examine large-scale enforced disappearances - did not
wait for a formal complaint to initiate investigations. Victims were afforded the
opportunity to present their views in a substantive manner though psychological
assistance was not made available to them.
With some 28,000 cases in front of the 1994 Commissions, large numbers of
complaints were left unattended. 429 Although these complaints were examined by the
1998 All-Island Disappearances Commission, this Commission too did not proceed
beyond the ex parte stage, deciding to again refer for prosecution a list of those
persons identified as perpetrators based on ‘credible evidence indicative of their
responsibility for disappearances of certain persons. 430 It was observed that until
further investigations by the “investigative authorities are held, confidentiality must
prevail, both in respect of the nature of the material available and in respect of the
identity of the persons implicated by such material”. 431
There may be some justification for the procedure so adopted by these commissions
in as much as the public ‘naming and shaming’ of alleged perpetrators may have
undermined their rights, given that they themselves were not afforded an opportunity
to meet those charges. However it is undisputed that an opportunity should be
afforded to the alleged perpetrators to state their case publicly, before reporting and
recommending to the President in regard to what measures should be taken in regard
to them. This opportunity is a question of fairness.
427 Principle 9, UN Updated Principles to Combat Impunity, supra note 7.
428 For example, see Final Report of the 1994 Northern and Eastern Disappearances Commission,
Sessional Paper No VII, 1997, at p. 62.
429 De Almeida Guneratne, Jayantha, op. cit.
430 See Final report of the 1998 All Island Disappearances Commission (March 2001) Sessional Paper
No. 1, 2001 at p. 9.
431 ibid.
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