Untitled - International Commission of Jurists

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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. 147
extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes” The rationale, as explained in paragraph 27 of the Principles, is that: “ Contrary to the functional concept of the jurisdiction of military tribunals, there is today a growing tendency to consider that persons accused of serious human rights violations cannot be tried by military tribunals insofar as such acts would, by their very nature, not fall within the scope of the duties performed by such persons. Moreover, the military authorities might be tempted to cover up such cases by questioning the appropriateness of prosecutions, tending to file cases with no action taken or manipulating “guilty pleas” to victims’ detriment. Civilian courts must therefore be able, from the outset, to conduct inquiries and prosecute and try those charged with such violations. The initiation by a civilian judge of a preliminary inquiry is a decisive step towards avoiding all forms of impunity. The authority of the civilian judge should also enable the rights of the victims to be taken fully into account at all stages of the proceedings. UN experts who have affirmed the principle of civilian jurisdiction over human rights violations include the Special Rapporteur on extrajudicial, summary and arbitrary executions, 522 the Special Rapporteur on torture, 523 the Special Rapporteur on the independence of judges and lawyers, 524 the Special Representative on the question of human rights defenders, 525 the Special Rapporteur on the situation of human rights in Guatemala, 526 the Special Rapporteur on the situation of human rights in Equatorial Guinea, 527 the Working Group on Enforced or Involuntary Disappearances, 528 and the Working Group on Arbitrary Detention. 529 The Special Rapporteur on the question of impunity of the former UN Sub-Commission on the Promotion and Protection of Human Rights 530 and the Sub-Commission’s Rapporteur on the Administration of Justice through military tribunals 531 have also recommended that gross human rights violations should not be tried in military courts and the Sub-Commission has urged states to investigate, prosecute and punish crimes against human rights defenders in ordinary courts. 532 522 E/CN.4/1983/16, paras 75-78; E/CN.4/1984/29, paras 75- 86 and 130-131; E/CN.4/1985/17, paras 41 to 45; E/CN.4/1987/20, paras 186 and 246; E/CN.4/1989/25, para 220; E/CN.4/1990/22, para 463; E/CN.4/1991/36, para 591; E/CN.4/1993/46, para 686; E/CN.4/1994/7, para 697; E/ CN.4/1994/7/Add.2, para 48; E/CN.4/1995/61, paras 93, 125,183, 402 and 403; E/CN.4/1998/68, para 97; E/CN.4/1999/39/Add.1, paras 62, 66, 72, 172 and 216; E/CN.4/2000/3/Add.3, para 44; E/ CN.4/2000/3, para 89; and E/CN.4/2001/9 paras 56 and 62. 523 E/CN.4/2002/76, 27.12.2001, Annex 1, Recommendation (j); E/CN.4/2003/68, 17.12.2002, para 26 (k). 524 E/CN.4/1998/39/Add.2, 30.03.1998, para 7. 525 A/57/61, 10.09.2001, para 47; E/CN.4/2002/106/Add.2, 24.04.2002, paras 183, 184. 526 E/CN.4/1996/15, 05.12.1995, para 129; E/CN.4/1997/90, 22.01.1997, para 23. 527 E/CN.4/2000/40, 27.01.2000, para 71. 528 E/CN.4/1994/26, 22.12.1993, para 45 (i). 529 E/CN.4/2002/77/Add.2, 05.03.2002, para 77; E/CN.4/1999/63, 18.12.1998, paras 49, 80 (b). 530 Principle 29 of the UN Updated Principles on Impunity, supra note 7. 531 Working paper by Special Rapporteur Decaux containing an updated version of the draft principles governing the administration of justice through military tribunals, E/CN.4/Sub.2/2005/9, Principle 8. 532 Resolutions on the question of the violation of human rights and fundamental freedoms in all countries, E/CN.4/Sub.2/RES/1998/3 20 August 1998, para 3; E/CN.4/Sub.2/RES/1999/3, 20.08.1999, para 4. 148
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In exploring what constitutes a ver
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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
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Interdiction from service of allege
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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
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
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
Page 138 and 139: prosecutor’s office would be to i
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 146 and 147: enforced disappearance; (ii) Exerci
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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Untitled - International Commission of Jurists

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