Untitled - International Commission of Jurists

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TAB TELO TUF TULF TYL UN UNHRC UNP UNWG US UTHR Trial-at-Bar Tamil Eelam Liberation Organization Tamil United Front Tamil United Liberation Front Tamil Youth League United Nations United Nations Human Rights Committee United National Party United Nations Working Group United States University Teachers for Human Rights 7
Executive Summary Enforced disappearances and unlawful killings shock the conscience of the community and demand a public accounting by the state to its citizens and to victims (meaning, all those harmed by the violation). As with all human rights violations, victims have a right to an independent inquiry and an appropriate remedy. This report addresses the systematic absence of an adequate remedy in Sri Lanka – notwithstanding the establishment of a long line of commissions of inquiry between 1977 and 2001 – a period of widespread disappearances and unlawful killings during waves of violent political unrest and internal armed conflict. As stated in the title of the report, the focus is on gross violations of non-derogable rights that amount to serious breaches of peremptory (jus cogens) international norms, whether the State acted directly or sanctioned these crimes indirectly. Non-state and individual private actors can similarly find themselves subject to prosecution for gross violations such as genocide and killings that amount to serious crimes under international law due to their shocking or systematic nature, whether during or outside of armed conflict. State responsibility for guaranteeing a remedy for such crimes transcends domestic jurisdictions as an obligation of all states (erga omnes). Gross violations of human rights give rise to a clear right of victims (all of those harmed by the violation) to know the truth about what happened to their loved ones, to access a judicial remedy, and to receive reparations. 1 In assessing its fulfilment of these obligations, this report necessarily looks beyond the regular criminal justice system to an assessment of Sri Lanka’s many commissions of inquiry, appointed ostensibly to demonstrate the government’s commitment to independent inquiry where the nature of harms alleged shocks the public confidence and necessitates extraordinary measures to ensure accountability. In fact, as the report shows, neither the regular criminal justice system nor the commissions of inquiry appointed by successive governments, have been able to satisfy the state’s obligations to its citizens. The objective of this report is to document and learn lessons from this history that will be important in today’s post-war environment to finally come to grips with the systemic impunity that plagues Sri Lanka’s democracy. While historical in nature, one need only acknowledges the lack of any significant institutional or legal reform since 2001 to realize the importance of these lessons today. When gross human rights violations occur, governments, victims and the broader domestic and international community often look to the establishment of commissions of inquiry. These commissions are usually intended to achieve three purposes which 1 A ‘remedy’ is often seen as procedural only, separate from substantive ‘reparations’. The UN’s most clear elaboration of relevant principles in this regard is the (updated) 2006 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. Article VII describes the three components of a victim’s right to a remedy as access to justice, reparations, and truth. For a detailed discussion on international law and principles related to truth, justice and reparations, see International Commission of Jurists, The Right to a Remedy and to Reparation for Gross Human Rights Violations – A Practitioners’ Guide, December, 2006. 8
Page 2 and 3: In exploring what constitutes a ver
Page 4 and 5: 3
Page 6 and 7: ABBREVIATIONS AC AG AHRC AI A-L ALR
Page 10 and 11: government agencies may be unable o
Page 12 and 13: appointed under the Commissions of
Page 14 and 15: communities. Krishanthi Kumaraswamy
Page 16 and 17: investigative function that could m
Page 18 and 19: measures recommended in regard to r
Page 20 and 21: and Bandaranaike became the prime m
Page 22 and 23: assembly and association of trade u
Page 24 and 25: majority pro-Sinhala political lead
Page 26 and 27: The violence reached a crescendo in
Page 28 and 29: enforced disappearances were report
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
Page 36 and 37: terms, 66 and clear guidelines laid
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
Page 58 and 59:
police did not carry out the arrest
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
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excesses that had preceded the acti
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property of Sinhalese persons domic
Page 72 and 73:
appear before the Commission was al
Page 74 and 75:
Notwithstanding these consideration
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The Commission’s recommendation t
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
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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
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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
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Regardless of the amendment however
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It was recorded by at least some of
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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
Page 134 and 135:
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
Page 148 and 149:
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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Untitled - International Commission of Jurists

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