Untitled - International Commission of Jurists

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6.3. Absence of a Specific Crime of Enforced Disappearances The absence of a specific crime of enforced disappearances means that many of these prosecutions must be fitted into a difficult straitjacket of ordinary offences such as abduction. This means first, the fitting of the facts of these extraordinary cases into the ambit of a commonplace crime of abduction and/or murder which is no easy task as amply illustrated in the prosecutions relating to enforced disappearances as contained in the Reports of the 1994/1998 Disappearances Commissions. This question of non-identification of perpetrators and the question of satisfaction of the requisite criminal burden of proof beyond reasonable doubt is crucial in this regard. Secondly, the absence of a specific crime of enforced disappearances also means that the sentences imposed, even where criminal culpability is found, are grossly inadequate as discussed further below. It is one of the State’s principal obligations to establish legislative mechanisms upholding the State’s duty to guarantee human rights protections. In keeping with this fundamental principle, the UN Declaration on the Protection of All Persons from Enforced Disappearance states in Article 3 that: Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction. Article 4 specifies that “All acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness.” 533 Although Sri Lanka is not yet a party to the International Convention for the Protection of All Persons from Enforced Disappearance, that instrument, adopted by consensus of the UN GA in 2006, constitutes the internationally recognized normative standards surrounding the crime of enforced disappearance. For that reason, the Supreme Court of Nepal, in its landmark 2007 judgment Rajendra Dhakal and Others v. The Government of Nepal (writ. No. 3575, registration date Jan. 21, 1999, decision June 1, 2007), ordered the Government “to urgently enact a law which includes provisions that the act of disappearance is a criminal offence, defining the act of disappearance pursuant to the definition stated in the International Convention for the Protection of All Persons from Enforced Disappearance, 2006.” This decision was taken despite the fact that Nepal was not yet a party to the Convention on Enforced Disappearances. The definition of enforced disappearance contained in the Convention on Enforced Disappearances provides the following elements: 1. detention/deprivation of liberty in whatever form; 2. refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person; 3. placing the disappeared person outside the protection of the law; and 533 UN General Assembly, A/RES/47/133, 18 December 1992. 149
4. the conduct constituting the act of enforced disappearance is undertaken by a state agent or persons or group acting with the authorization, support or acquiescence of the State. 6.4. Non-Identification of Perpetrators In all of these cases, although the ordinary law requires that an identification parade be held after arrest, the extraordinary secretive nature of enforced disappearances has meant that the requirement is not followed, rendering identification extremely difficult after a lapse of years. In the Embilipitiya Case, no identification parade was held and the prosecution had to give an explanation as to why no identification was held. The police never visited the scene of crime and no investigation was undertaken. After the passage of five years, investigations were transferred to the Criminal Investigation Division (CID) of the police and the identification of the perpetrators became more difficult due to the intervening years. In acquittals by the High Court in prosecutions emanating from the findings of the 1994/1998 Disappearances Commissions, failure to establish identity of the abductors was a major factor for the acquittals. 534 The inability to prosecute and the discharging (in the military court) of the accused in the Kokkadicholai Case also indicates the overriding problem of identification in cases that are as complex as mass extrajudicial executions. 6.5. Burden of Proof The Embilipitiya Case illustrates the difficulties that may arise in a criminal proceeding in regard to establishing proof of secret detention as borne out by the rejection by the High Court of evidence relating to the fact that the students were, in fact, detained at the Sevana army camp. The 1994 Western, Southern and Sabaragamuwa Disappearances Commission adopted a position which substantially differed from the judicial findings in the High Court. At the time of its deliberations, the Court of Appeal had directed the Chief Magistrate, Colombo, to record evidence and come to a finding in respect of eighteen habeas corpus applications filed before court. The findings, which had been completed by the Magistrate in all except one case, were scrutinized in the commission process. The Commissioners found that the “disappeared” children had been held in long-term detention as alleged. 535 Evidence of witnesses in the habeas corpus applications is also specifically noted. 536 The High Court of Ratnapura in the Penal Code proceedings referred to above, did not find evidence of long term detention of the “disappeared” children at the Sevana army 534 H.C. Case No. 94/99, High Court of Hambantota, H.C. Minutes 04.02.2004; H.C. Case No. 14/2001, High Court of Hambantota, H.C. Minutes 25.08.2003 and H.C. Case No. 24/2002, High Court of Hambantota, H.C. Minutes 19.06.2003. 535 In support of its position, the Commissioners refer to the Expenses Register of the Sevana Army Camp supplied to them by the Army Commander which indicated the contrary. 536 These, in particular, include the evidence of one witness who stated that his son’s name figured in the Food Register of the Sevana Army camp and that he, the father had been required to sign for him during his period of detention at Sevana and of another who affirmed that Registers of Attendance and Release etc were maintained at the army camp and that his own name figured in them. 150
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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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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
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 148 and 149: as to why specific reform of the cr
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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