Untitled - International Commission of Jurists

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).
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