Untitled - International Commission of Jurists

More documents

Recommendations

Info

were SLFPers. I was told, that area could be cleared, if I were to catch them. 276 (Evidence by then Commander Sri Lanka Army, Lt. General Rohan Daluwatte) Promotion of police officers said to have acted at the behest of politicians contrary to law was clearly evidenced during this period. In the promotion of Udugampola SP over 15 more senior officers to the rank of DIG, I saw the portents of the plan to use the Police Force in the narrow interests of politicians. It was clear to me that alternative structures of command were put in place within the Police Force for the purpose. I realised that a system of promotion to this effect was being put into operation. 277 (Evidence by former IGP (Mr LGD Cyril Herath) It is fair to ask how it is that such candid testimony could emerge. The answer will owe a great deal to the fact that the political regime implicated in this influence peddling was no longer in power. In the 1994 Northern and Eastern Disappearances Commission Report, the Commission came to the conclusion that ninety percent of the removals were at the hands of the security forces: army, navy, air force and the police. 278 This Commission explicitly named the security officers repeatedly implicated in the enforced disappearances but cautioned (as indeed, did the other Commissions) that it could not, on ex parte evidence alone, decide on their guilt. 279 Hence proper inquiries have to be undertaken and evidence given by the complainants should stand the scrutiny of cross-examination.” 280 The manifold aspects of state accountability in this regard were stark as well outlined in one observation [I]n addition to the government’s liability that arises solely from the act of disappearances themselves, there are other factors adding to the gravity of these cases, such as the conspiracy to cause these disappearances, acts of encouragement to cause disappearances, acts of supervision of the process of carrying out these disappearances and acts of failure to divulge information regarding these disappearances. 281 The need to enforce accountability on the part of those so implicated from the highest to the lowest levels in Sri Lanka’s political structures was clear. Otherwise, as was observed, 276 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 35. 277 ibid. 278 Final report of the 1994 Northern and Eastern Disappearances Commission, Sessional Paper No VII, 1997, at p. 62. 279 ibid. 280 ibid. 281 Asian Human Rights Commission, ‘Thousands of Disappearances Established: Truth Commission urged,’ Human Rights SOLIDARITY, Vol. 7, No. 5, Hong Kong, 1997, at p. 17. 81
[…] law enforcement officers [implicated in these crimes] could claim that they have been unfairly treated if the politicians who were architects of the policy that caused these disappearances are immune to criminal liability. 282 3.1.2. Scrutiny of the Mandate A major limitation of the 1994 Commissions was that they were not mandated to inquire into human rights violations allegedly committed between 1984 and 1988. 283 Therefore, even though the Commissions engaged in praiseworthy efforts during the time period of their functioning, large numbers of human rights violations remained uninvestigated. Neither did these abuses come within the scope of the final All-island Commission appointed to look into the remaining complaints that had been ‘left over’ by these three Commissions (examined below). Meanwhile, the mandate was openended regarding the ‘end date’ of violations that the Commissions were empowered to investigate. 284 While in theory the 1994 Commissions could look into actual and emerging violations, interviews with ex-Commissioners reveal that, in the midst of their inquiries, the Commissioners were directed by a senior Government Minister to refrain from inquiring into contemporaneous violations. 285 Such a direction without explicit amendment of the mandate raises questions in regard to the integrity of even the 1994 Disappearances Commissions, distinguished as these concerns may be from the vastly more overt politicization that characterized other commissions of inquiry, both pre and post-1994. Further, the mandate of the 1994 Commissions gave rise to substantive questions of interpretation. An initial concern was whether the term ‘Involuntary Removal or Disappearances of Persons’ included extrajudicial executions as well as enforced disappearances. Observations made by monitors during the early years of the establishing of the Commissions indicated some uncertainty on the part of the Commissioners themselves. 286 In practice, the Commission went to some length to ensure inclusion of extrajudicial killings, even where there was, strictly speaking, no evidence of removal or enforced disappearance. 282 ibid. 283 This was a special concern raised in the Concluding Observations of the United Nations Human Rights Committee in regard to the Third Periodic Report of Sri Lanka, CCPR/C/79/Add.56, 27.07.1995. Indeed, the number of those subjected to enforced disappearances particularly in the Jaffna peninsula during a period even prior to 1984, namely during 1981 was a further factor as disclosed for example in the Amnesty International, ‘Report of An Amnesty International Mission to Sri Lanka,’ 31 January – 9 February 1982, at p. 42. As pointed out in the Amnesty Report, it was reported in the local newspapers in November 1981 that legal action will be instituted against twelve police officers for their alleged misconduct in the areas of Kankasanturai and Chunnakam police stations in the Jaffna peninsula during 1981. Interestingly however, the major crime for which these police officers were ‘likely to be charged’ were not connected to the causing of enforced disappearances but rather, for ‘desertion of post.’ In Amnesty International, ‘Time for Truth and Justice’, AI Index, ASA 37/04/95, 1995, at p. 6, several cases of enforced disappearances occurring in the South during 1987 are noted, including that of a lecturer attached to the University of Ruhuna. 284 Section (a) of the mandate simply refers to acts occurring “at any time after January 1, 1988”. 285 Author’s private interviews with former Commissioners, Colombo, August 2009. 286 Amnesty International, ‘Time for Truth and Justice’, AI Index, ASA 37/04/95, 1995, at p. 6. 82
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 8 and 9:
TAB TELO TUF TULF TYL UN UNHRC UNP
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
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 76 and 77: 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 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
Page 94 and 95: (g) The relief if any that should b
Page 96 and 97: Interdiction from service of allege
Page 98 and 99: 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 150 and 151:
6.3. Absence of a Specific Crime of
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
show all

Untitled - International Commission of Jurists

Create successful ePaper yourself

Delete template?

Save as template?