Untitled - International Commission of Jurists

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.
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