Untitled - International Commission of Jurists

y the byzantine and unfair burdens imposed by the criminal justice system. For
example, following the widespread and systematic enforced disappearances in the
1980s and the early 1990s, devastated and often destitute family members of victims
were informed that much-needed compensation was available only if the enforced
disappearance was caused by anti-government elements. The result was predictable.
Many victimised persons who were rendered economically vulnerable by the killings
of their husbands and sons (often the breadwinners in the family) stated that the
enforced disappearances were caused by subversive elements. These statements were
then used by defence counsel against them years later in subsequent criminal
prosecutions.
Similarly obvious and yet frequently ignored are the reasons for delays in lodging
complaints: extreme trauma combined with the routinely hostile and sometimes
threatening – and retraumatizing – reception by the police. These delays were often
used against the victims during prosecutions in order to discredit their case. Rather
than upholding the rights of victims to truth, justice, and reparations – the universal
norms to which Sri Lanka is bound – the legal process was often an additional and
tragic harm visited upon victims.
The protracted delays imposed by the legal system itself, not caused by complainants,
have resulted in many witnesses facing death threats by perpetrators who continued to
occupy high positions in the army and the police. In the special report of the 1994
Western, Southern and Sabaragamuwa Disappearances Commission, 495 the parents
and family members of the “disappeared” children had complained that ‘officials of
the security forces who were responsible for the abduction of their loved ones were
still working in those same places.” In fact, the Commissioners categorised a
particular group of family members of the “disappeared” as “inhibited complainants”
due to this reason and came to the view that legal proceedings should be suspended
until such time that their security could be assured. 496
Where the massacre cases from the North and East are concerned, witness
intimidation is a common feature in all the cases analysed for this report. Thus, in
regard to the Kumarapuram massacre for example, Commissioners considered
[…] how willing witnesses will be to testify when they are still living with a
military presence - the Magistrate’s Court itself is surrounded by military
when the witnesses testify. Furthermore, the drawn out process of the case has
reportedly left many witnesses almost indifferent to the case and cynical about
any justice being done. 497
As pointed out by Amnesty International in a further example regarding a prosecution
during the period 1987-1990, witness intimidation can rise to the level of the
‘witnesses themselves being abducted and disappeared.’ 498
495 Special report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission,
submitted to the President on 31.05.1997, at pp. 8 and 43.
496 ibid, at pp. 8 and 9.
497 INFORM, Sri Lanka Information Monitor, Colombo, November 1997, at p. 7.
498 Amnesty International, ‘Sri Lanka: Extrajudicial Executions, ‘Disappearances’ and Torture,’ 1987-
1990, AI Index, ASA/37/21/90, September 1990, at pp. 27-28.
139