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