Untitled - International Commission of Jurists

clearly distinct from the determination of individualized guilt by a criminal court, but
it is also clear from the quotation above that – between these institutional mandates –
there was significant scope for ambiguity about respective roles, particularly when it
came to the identification of perpetrators where crimes were disclosed by testimony.
The use of the word, “guilt”, for example, is not unusual in the work of commissions
during this period, although the same commissions also acknowledged the limitations
on their role. What remains unresolved is whether and how the 1994 Commissions
might have gone further in recommending prosecutions. For example, the likelihood
of Commission recommendations being taken more seriously might have improved if
their queries had gone through to the second stage (inquiry beyond ex parte
testimony) with sufficient resources and time.
The irony and frustration in what actually transpired in this regard was not lost on the
commissioners, who in their reports laid out plainly compelling reasons for doubting
the likelihood of adequate follow-up investigations and prosecutions.
The distortion of the investigations to conceal more than to reveal and
mechanically labelling as ‘subversive act’ without investigation, were some of
the practices of avoidance used in the rare instances where the authorities
could not refrain from semblance of an investigation. 306
The three examples cited are not isolated departures from practice or
‘excesses’. They exemplify a generalised practice, which in its turn warrants
the reasonable inference that this practice denotes a generalised direction NOT
to investigate such incident (emphasis in the original). 307
The observations were similarly harsh in regard to the absence of prosecutions.
In the few cases where evidence regarding removals of persons existed and
those responsible were revealed, not only was there even failure to take further
action (prosecution, disciplinary action) but some of them had even received
promotions and medals. 308
Despite these explicit acknowledgements of defective investigations and prosecutions,
the 1994 Disappearances Commissions had little choice but to refer specific cases
back to those very same government institutions. This referral was no doubt
accompanied by the expectation that there would be some changes evidenced in
investigative and prosecutorial processes and a new political will would be manifested
in bringing perpetrators to justice.
306 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission,
Sessional Paper No V, 1997, at p. 53. cited as a prefatory remark to discussing the February 1990
killing of Richard de Zoysa (examined later in detail), the January 1989 killing of Sarath Sepala
Ratnayake, a human rights lawyer and the opposition’s area candidate at the then forthcoming General
Election and the Hokandara mass graves where a bomb crater on a public highway was transformed
into an open grave containing several charred corpses.
307 ibid, at p. 55 citing the cases of the “Dambarella Incident”, the “Marawala Incident” and the
“Dickwella Incident” which all concerned disappearances of persons in state custody but with no
investigation or prosecution evidenced thereafter.
308 ibid, at p. 65.
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