Untitled - International Commission of Jurists

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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. 75
internationally and are examined systematically later in the study (see Chapter Four). It is in this sense that, while it was an accepted principle of law that no one can be required to testify against oneself, the challenge of the Commission was to use its powers to secure all relevant testimony, determine the facts, and recommend prosecutions where crimes were disclosed, while taking care to protect the rights of alleged perpetrators. 258 The further question arises as to whether, by referring the incident to a military court, the Commission took into its own hands the decision to sacrifice justice by means of accountability through prosecution for a convenient version of the truth that resulted ultimately in a lone “scapegoat” being found responsible by the military court, i.e., the senior army officer in command at the camp. This could be argued to amount to explicit political expediency in granting immunity for acts of gross human rights violations and usurping the criminal jurisdiction thereto. 2.4. The 1991-93 Presidential Commissions (1991-1993) Commissions appointed by President R. Premadasa Date of Appointment: 11 January 1991; 13 January 1992: 25 January 1993 259 Date of Report: Not Published Mandate: to inquire into and obtain information and report in respect of the period commencing 11 January 1991 (thereafter 13 January 1992 and 25 January 1993) until twenty-four months following upon the date hereof. The Commission was to inquire into allegations “that persons are being involuntarily removed from their places of residence by persons unknown” and report on the following: (i) any complaints of such alleged removal, and/or the subsequent lack of information of the whereabouts of the person or persons so removed; (ii) the evidence available to establish the truth of such allegations; (iii) the present whereabouts of the person or persons so removed; (iv) the identity of the person or persons or groups responsible; (v) the evidence available to establish the truth of such allegations; (vi) the steps at law to be taken against such persons responsible; (vii) whether such illegal acts took place by reason of any lack of legal provision in the present laws relating to law enforcement; (viii) the remedial measures necessary to prevent the future occurrence of such illegal activity. 260 Commission Appointed by President D.B. Wijetunge Date of Appointment: 13 September 1993 261 258 ibid. 259 Warrants of the Commissions Gazette No. 644/27, 11.01.1991, Gazette No. 697/5,13.01.1992, Gazette No. 751/1, 25.01.1993. 260 The Gazette of the Democratic Socialist Republic of Sri Lanka, Extraordinary, No. 644/27, 11.01.1991, Schedule A. Warrants of the Commissions Gazette No. 644/27, 11.01.1991, Gazette No. 697/5, 13.01.1992, Gazette No. 751/1, 25.01.1993. 76
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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
Page 26 and 27: The violence reached a crescendo in
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Page 30 and 31: The Court of Appeal dismissed petit
Page 32 and 33: process and commissions of inquiry
Page 34 and 35: Declaration on Upholding Human Righ
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Page 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
Page 48 and 49: The ineffectiveness of the writ rem
Page 50 and 51: The Court of Appeal when sending th
Page 52 and 53: anything. We have received informat
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
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Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
Page 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 78 and 79: Date of Publication of Report: not
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
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Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
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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
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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
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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