Untitled - International Commission of Jurists

camp. Scrutiny of the evidence in the trial indicates that knowledge of the fact that the
“disappeared” children were being kept at the camp had been strongly established.
This knowledge was testified to, for example, by the mother of one “disappeared”
child who said that she knew full well that the children were being kept in the camp
and further, that she had made a trip to the camp to see if her child was being kept
there and had been told by the soldiers that her son had been “a naughty boy” and that
they would cure this behaviour.” 537
This witnesses’ evidence was accepted on all points by the trial judge who, in fact,
praised the credibility of her testimony. 538 In that context, the selective omission of
that part of her evidence attesting to the fact of long-term detention of the
“disappeared” children at the camp is inexplicable. This is all the more so in the light
of other witnesses testifying to that same effect. 539 Evidence of other “disappeared”
children who had later been released and who had testified as to detention at the camp
is also relevant. 540
Although the fact of long-term detention at the camp had been highly evident in the
findings of the 1994 Western, Southern and Sabaragamuwa Disappearances
Commission and at the magisterial inquiry, as well as reflected in the evidence led at
the trial, this fact was not reflected in the judicial findings. This point, equally
unfortunately, was not reflected at the appellate court level. At one level, it showed
the manner in which the Commission findings are thoroughly disregarded at the stage
of legal proceedings. At another level, the inability to establish long term detention of
the children at the army camp impacted on judicial findings in regard to the
culpability of the individual accused as well as the culpability of the third accused
commanding officer, as discussed below.
In contrast, the Supreme Court and the Court of Appeal have affirmed in habeas
corpus applications that, if the fact of detention by the state is established, then the
liability of the State follows irrespective of whether the actual enforced disappearance
can be established or, for that matter, whether the precise identity of the culpable
persons (re the Leeda Violet case and the Matchavallan case referred to above) can be
established. It is important in this context to note that international law does not
permit a shifting of the burden of proof to an individual accused to prove his or her
innocence in such a case. This burden remains with the State prosecution. However, it
is a different matter to hold the State, itself, responsible for a right to life violation.
International jurisprudence holds that, because direct evidence of State involvement in
killings linked to disappearances is almost inevitably unavailable, circumstantial
evidence of cognizable patterns and practices of the State to which the specific case
can be shown to be linked, is sufficient to hold the State responsible for right to life
violations. This means a burden of proof less than the reasonable doubt standard. 541
537 Evidence of a witness, Sujatha Kalugampitiya, who was herself, the principal of Moraketiya Maha
Vidyalaya, a minor school in the area and whose son had been disappeared, acknowledged at pp. 22
and 24 of the High Court judgment.
538 At pp. 28, 30 and 33 of the judgment.
539 Statements that the first accused, the principal had told the parents that the children were being
detained at the camp, referred to at pp. 52 and 64 of the judgment.
540 At p. 100 of the judgment where there is reference to the testimony of one child that he had been
kept ‘bound and naked’ at the camp along with the others.
541 Caso Velásquez Rodríguez, IACHR; Çiçik v. Turkey, 27 February 2001, ECHR.
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