Untitled - International Commission of Jurists

as to why specific reform of the criminal law is needed to bring in the concept of
chain-of-command liability.
6.2. Military Jurisdiction
As noted earlier, with reference to the findings and recommendations of the
Kokkadicholai Commission Report, 519 the recommendation to address criminal
responsibility through a military tribunal raises serious concerns. The military tribunal
in that case eventually found a lower-level officer responsible for lesser offences. The
Commission’s argument that individual perpetrators could not be identified flew in
the face of the Military Court’s own finding. As difficult as a criminal prosecution
may have been, an indictment may yet have been possible for the offence of illegal
omission under Sections 30 and 31 of the Penal Code.
In Sri Lanka, as in many jurisdictions, military tribunals fall under executive authority
and lack the independence and impartiality guaranteed by the separation of powers
that is intended constitutionally to protect the judiciary from the same reproach.
Where the alleged offence is defined as such under ordinary legislation or relates to
serious human rights violations, as opposed to being defined only as a military
offence, there is no justification to shield the accused from the jurisdiction of ordinary
criminal courts.
This standard, at the heart of which is the very principle of legality and equality
before the law, is particularly important with respect to combating impunity in
relation gross violations of human rights. For this reason, the 1992 Declaration on the
Protection of All Persons from Enforced Disappearance stipulates in Article 16 (2)
that those responsible for enforced disappearance, either as principal or accessory,
“[…] shall be tried only by the competent ordinary courts in each State, and not by
any other special tribunal, in particular military courts.” 520 The use of the phrase, ‘in
particular’, is noteworthy.
In 2005, covering international human rights violations more broadly, article 29 of the
Updated Set of principles for the protection and promotion of human rights through
action to combat impunity captured the movement of international law towards
addressing the causes of impunity in stating that:
The jurisdiction of military tribunals must be restricted solely to specifically
military offences committed by military personnel, to the exclusion of human
rights violations, which shall come under the jurisdiction of the ordinary
domestic courts or, where appropriate, in the case of serious crimes under
international law, of an international or internationalized criminal court. 521
Principle 8 of the UN Principles Governing the Administration of Justice through
Military Tribunals (Decaux Principles) provides: “In all circumstances, the
jurisdiction of military courts should be set aside in favour of the jurisdiction of the
ordinary courts to conduct inquiries into serious human rights violations such as
519 See Ch 3, s 2.3.
520 G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), Adopted by
General Assembly resolution 47/133 of 18 December 1992.
521 United Nations Commission on Human Rights, E/CN.4/2005/102/Add.1, 8 February 2005.
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