Untitled - International Commission of Jurists

The Commission’s recommendation that an inquiry be undertaken by a military court
is problematic. The use of military courts for the purpose of inquiry into extrajudicial
executions and enforced disappearances is not sanctioned by international law. 253
The mandate of this Commission was to determine the facts and recommend criminal
prosecutions accordingly. In this regard, the decision of the Commission not to
examine the responsibility of senior officers in command at the Kokkadicholai army
camp is inexplicable. The impact of this self-imposed restriction on the mandate was
starkly highlighted by the verdict of the army-initiated court martial, which ruled
against the senior army officer in command at the camp, precisely on the charge of
failing to control his subordinates and failure to dispose of dead bodies. In this light,
the failure of the Commission to examine the responsibility of the senior officer in
command at the time of the massacre is all the more questionable.
Other concerns were evidenced in regard to the functioning of the Commission,
including specifically the fact that the Commission had not subjected the military
suspects to cross-examination, contrary to international principles relating to such
inquiries. 254 Civilian witnesses had, however, been subjected to cross-examination. 255
Further, the seventeen implicated soldiers appeared before the Commission in civilian
dress and only the commander-in-charge gave evidence; that, too, in the form of
unsworn testimony. 256
Responding to these concerns, the government merely replied that the commission
had acted ‘in keeping with the norms of criminal procedure that are recognised by the
legal system of Sri Lanka never to compel a person suspected of any offence to give
evidence at the inquiry and stated that it would not be in the interests of justice to
compel these army men to give evidence. 257
This explanation missed the essence of these concerns, which is that any commission
of inquiry must carry out its investigation in accordance with criteria that will ensure
the possibility of full accountability. These criteria have been developed in detail
253 This issue is revisited in detail below (see Ch. 5, s. 8). See also para. 9 of United Nations Human
Rights Committee, Comments on Egypt’s second periodic report under the International Covenant on
Civil and Political Rights, CCPR/C/79/Add.23, 09.08.1993, where the Committee stated that ‘military
courts should not have the faculty to try cases which refer to offences committed by members of the
armed forces in the course of their duties.’ As pointed out pertinently, ‘if special or military courts have
jurisdiction over serious human rights violations where these are rife, it is extremely unlikely that the
perpetrators will be brought to trial or – if brought to trial – that they will be convicted. Such courts
often use truncated procedures and lack the professional competence and independence of the civilian
courts. Military courts tend to lack independence and impartiality because they are under the military
command structure – often the same structure which is suspected on carrying out human rights
violations’, Amnesty International, ‘Disappearances and Political Killings. Human Rights Crisis of the
1990’s, A Manual for Action’, abbreviated version published by the Nadesan Centre, Colombo, 1994,
at p. 27.
254 Amnesty International, ‘Sri Lanka; An Assessment of the Human Rights Situation’, AI Index,
ASA/37/1/93, 1993, at p. 4. See also Principle 10 of the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Execution, adopted by the Economic and Social
Council Resolution 1989/65, 24.05.1989, endorsed by the United Nations General Assembly,
15.12.1989, http://www.un-documents.net/a44r159.htm.
255 Amnesty International, ‘Time for Truth and Justice’, AI Index, ASA 37/04/95, 1995, at p. 21.
256 ibid.
257 Amnesty International, ‘When will Justice be Done?,’ AI Index, ASA 37/15/94, 1994, at p. 8.
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