Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
practices that favour the accused at the expense <strong>of</strong> the victim. This is manifestly<br />
unsatisfactory.<br />
Similarly, although Sri Lanka is a party to the UN Convention against Torture and<br />
Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), its<br />
implementation <strong>of</strong> the CAT through domestic law, required under Sri Lanka’s dualist<br />
system in order to give effect to international treaties, through the enacting law falls<br />
short <strong>of</strong> international standards. It narrows the international definition <strong>of</strong> torture to<br />
acts causing severe pain, eliminating the word “suffering” as well as the separate<br />
crime <strong>of</strong> “cruel, inhumane or degrading treatment”. It also arbitrarily limits the<br />
purposes for which violations may be found to occur, fails to recognize the principle<br />
<strong>of</strong> non-refoulement, and also does not provide for reparations to victims. A further<br />
critical shortcoming was analyzed in the UN Human Rights Committee’s decision in<br />
the Singarasa case, regarding the incompatibility <strong>of</strong> Sri Lanka’s emergency and<br />
counter-terrorism laws with it obligations under the CAT. 514<br />
6.1. Command Responsibility<br />
As developed through international criminal law, including the <strong>International</strong> Tribunals<br />
for Yugoslavia 515 and Rwanda, and customary international humanitarian law, the<br />
doctrine <strong>of</strong> command responsibility encompasses both military and civilian personnel<br />
holding positions <strong>of</strong> de facto or de jure authority, and who on this basis may be held<br />
to varying degrees <strong>of</strong> responsibility for failing to prevent or punish crimes committed<br />
by subordinates. The determination <strong>of</strong> the degree <strong>of</strong> responsibility should be based on<br />
several factors, including the extent <strong>of</strong> effective control and whether the superior<br />
knew or had reason to know that the crimes would be or were committed.<br />
The principal <strong>of</strong> command responsibility is well-established in general international<br />
law. Recently adopted treaties reflect that principle. The UN Convention for the<br />
Protection <strong>of</strong> All Persons from Enforced Disappearance provides under Article 6:<br />
1. Each State Party shall take the necessary measures to hold criminally<br />
responsible at least:<br />
(a) Any person who commits, orders, solicits or induces the<br />
commission <strong>of</strong>, attempts to commit, is an accomplice to or participates<br />
in an enforced disappearance;<br />
(b) A superior who:<br />
(i) Knew, or consciously disregarded information which clearly<br />
indicated, that subordinates under his or her effective authority<br />
and control were committing or about to commit a crime <strong>of</strong><br />
514 Nallaratnam Singarasa v. Sri Lanka, Communication No. 1033/2001, UN Doc.<br />
CCPR/C/81/D/1033/2001; See also: Redress, Comments To Sri Lanka’s Second Periodic Report To<br />
The Committee Against Torture Submitted 31 October 2005, pp.4-5.<br />
515 “The fact that any <strong>of</strong> the acts referred to in articles 2 to 5 <strong>of</strong> the present Statute was committed by a<br />
subordinate does not relieve his superior <strong>of</strong> criminal responsibility if he knew or had reason to know<br />
that the subordinate was about to commit such acts or had done so and the superior failed to take the<br />
necessary and reasonable measures to prevent such acts or to punish the perpetrators there<strong>of</strong>.” Article<br />
7(3), ICTY Statute, S.C. Res. 827, U.N. SCOR, 48th Ses., 3217th mtg., Annex, U.N. Doc. S/RES/807<br />
(1994), reprinted in 32 I.L.M. 1163 (1994).<br />
144