Untitled - International Commission of Jurists

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