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enforced disappearance; (ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and (iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution; (c) Subparagraph (b) above is without prejudice to the higher standards of responsibility applicable under relevant international law to a military commander or to a person effectively acting as a military commander. The International Criminal Court Statute, Part 3, was accepted by States at the International Conference in Rome as reflecting General Principles of Criminal Law. Article 28 provides, in respect of genocide, war crimes and crimes against humanity, including when consisting in the practice of enforced disappearances: 1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 2. With respect to superior and subordinate relationships not described in paragraph 1, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to 145
submit the matter to the competent authorities for investigation and prosecution. The UN Committee against Torture, in its General Comment 2 on obligations of the Convention against Torture, to which Sri Lanka is a party, has affirmed that “those exercising superior authority-including public officials- cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have know that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures. The Committee considers it essential that the responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial authorities.” 516 The omission of the doctrine of command responsibility in Sri Lanka’s penal law is a highly significant factor in this context. As discussed earlier, the Embilipitiya Case is an excellent illustration. In evidence before the High Court, it had been established that the 3 rd accused, then Lt. Col. R.P. (Parry) Liyanage district coordinating secretary for the area, under whose command the Sevana camp was run, had responsibility over the running of the camp. The “disappeared” children had been kept at the camp which was under his supervision. Parents of the victim testified that they had brought their appeals to him to find out what had happened to their children and he had done nothing. 517 However, this officer was acquitted by the High Court on the basis that no direct evidence could be found regarding his responsibility for the enforced disappearance of the children at the army camp. As seen in the Bindunuwewa Case above, the existing criminal law provision of culpable inaction 518 is not sufficient to impose responsibility in extraordinary situations of grave human rights violations given that what is in issue in this context is the primary negative actions of the accused in question. On the contrary, penal responsibility needs to be imposed in terms of the Sri Lankan law on the failure by superior officers to take positive steps to control the actions of their misfeasant subordinates. As reflected upon earlier, the Supreme Court’s development of the doctrine of vicarious liability of superior officers may be taken as a useful illustration 516 UN Committee against Torture, General Comment No. 2 on Implementation of article 2 by States parties, UN Doc. CAT/C/GC/2, 24 January 2008, para. 26. 517 For example, at p. 24 (where there is reference to the fact that he had prevaricated when questioned by one parent as to whether her son was being kept at the camp). At p. 475 (where it is observed by the trial judge that the father of Prasanna Handuwela testified that his son had been brought by him to the Sevana army camp on the express direction of Lt. Col. Liyanage, that he had been kept in the camp for about a week, that thereafter he had observed his son to be very weak and that upon his pleas, he had been allowed to take his son for medical treatment and that upon doing so, had been informed by the doctors that his son had passed keys, sponges and pieces of glass along with his feces, that he had been directed to bring his son back to the camp for further interrogation and that after doing so, his son had been ‘disappeared’ just outside the army camp and that he had made a specific appeal to Lt Col Liyanage to return his son, which had been disregarded. 518 The offence of culpable inaction is contained in Sections 30 and 31 of the Penal Code No. 2 of 1883 (as amended). 146
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In exploring what constitutes a ver
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3
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
Page 100 and 101: 3.3.3. The Bindunuwewa Commission D
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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Page 114 and 115: against any particular soldier or s
Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
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Page 140 and 141: y the byzantine and unfair burdens
Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 148 and 149: as to why specific reform of the cr
Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
Page 154 and 155: any direct or indirect physical or
Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
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