Taking responsibility for disappearances

Kishali Pinot Jayawardene

Affirming the doctrine of command responsibility in a manner that is of considerable jurisprudential interest, the United Nations Human Rights Committee has recently found against the Sri Lankan State in a complaint filed by a father from Trincomalee, whose son disappeared in Army custody in 1990.

The complaint was filed under the Optional Protocol to the International Covenant on Civil and Political Rights, by which citizens can appeal to the Geneva based UN body against the decisions of domestic courts in violation of Covenant rights. Appeals can also be lodged against state actions in violation of Covenant rights for which there is no effective national remedy.

While the views expressed by the Committee are not directly binding on a state party, they are of no little impact in measuring the international human rights status of a country. The Committee's views are therefore, as a matter of practice, hearkened to seriously by the country concerned.

This is the second finding by the Geneva based Human Rights Committee against Sri Lanka since the country ratified the Optional Protocol in 1997. The first opinion of the Committee (Communication No. 916/2000), came last year concerning the failure by the then People's Alliance Government to investigate death threats to the life of parliamentarian Jayalath Jayawardena, following allegations by President Chandrika Kumaratunga that he was involved with the LTTE.

In this second instance, the Committee finds a violation of the rights to liberty and security and freedom from torture in respect of the son who 'disappeared' in army custody. The state is directed to expedite current criminal proceedings against individuals implicated in the disappearance and to ensure the prompt trial of all persons responsible for the abduction.

The State is also put under an obligation to provide the victim with an effective remedy including a thorough and effective investigation into his disappearance and fate, his immediate release if he is still alive, adequate information resulting from its investigation and adequate compensation for the violations suffered by him and his family.

Interestingly, violation of the right to freedom from torture or cruel, inhuman and degrading treatment or punishment is additionally found in respect of his parents who, the Committee opined, suffered 'anguish and stress' by his disappearance and by the continuing uncertainty concerning his fate and whereabouts.

The Committee meanwhile indicated its wish to receive from the Government, within three months, information about the measures taken to give effect to the Committee's views. These views, (CCPR/C/78/D/950/2000), were adopted in the seventy-eight session of the Human Rights Committee, which concluded last month.

The facts of the case were in common with many cases of this nature during that period in Sri Lanka. The father, Jegatheeswaran Sarma, had gone to Geneva alleging that his son, Thevaraja Sarma had been arrested and detained in Trincomalee by members of the Army, including one corporal Sarath and others unidentified, in the course of a military search operation and that these acts resulted in the disappearance of his son.

In counter, the State argued that this disappearance was an isolated and illegal act initiated solely by a minor officer without the knowledge or complicity of other levels within the military chain of command. This was a position that was not accepted by the Committee in its deliberations.

The victims argued that the State party had failed to investigate effectively its responsibility and the individual responsibility of those suspected of the direct commission of the offences. It had given no explanation as to why an investigation was commenced some 10 years after the disappearance was first bought to the attention of the relevant authorities. Moreover, the investigation did not provide information on orders that may have been given to the low ranking officers regarding their role in search operations, nor did it consider the chain of command.

It had moreover not provided information about the systems in place within the military concerning orders, training, reporting procedures or other processes to monitor the activity of soldiers which may support or undermine the claim that the superior officers did not order and were not aware of the activities of their subordinates.

It was also alleged that there were striking omissions in the evidence gathered by the State party. Thus, the records of the ongoing military operations in this area in 1990 had not been accessed or produced and no detention records or information relating to the cordon and search operation were adduced. Even though indictment was filed against corporal Sarath, key individuals were not included as witnesses for the prosecution, despite the fact that they had already provided statements to the authorities and could have provided testimony crucial to the case.

In delivering its views, the Committee reasons unequivocally that, for the purposes of establishing State responsibility, it is irrelevant that the officer to whom a particular disappearance of an individual is attributed, acted outside the law or that superior officers were unaware of his or her actions.

In this context, the definition of enforced disappearances contained in the Rome Stature of the International Criminal Court (Article 7) is also used to good measure. Here, "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

The Committee concludes accordingly that where the violation of covenant rights is carried out by a soldier or other official who uses his or her position of authority to execute a wrongful act, the violation is imputable to the State, even where the solider or the other official is action beyond his authority.

In doing so, the Committee followed previous jurisprudence to this same effect by other regional tribunals, including the Inter-American Court of Human Rights in the Velasquez Rodriguez Case and decisions of the European Court of Human Rights.

Thus, even where an official is acting ultra vires, the State will find itself in a position of responsibility if it provided the means or facilities to accomplish the act. Even more boldly, it was affirmed by the Committee in this instance that even if, and this is not known in this case, the officials acted in direct contravention of the orders given to them, the State may still be responsible.

The views of the Committee in this instance are severe in their substance. Essentially, they provide a wake up call for those entrusted with the responsibility of prosecutions, in particular the officers of the Attorney General, to ensure that the State is not held liable on failure to hold accountable in law, those officers of the State identified to be responsible for grave human rights violations.

In the alternative, the repercussions of a continuing laissez faire attitude on these issues, given the real possibility that all those many, many others who suffered Jegatheeswaran's fate, may also appeal to Geneva, is manifestly too staggering to contemplate.

The Sunday Times, Colombo, September , 2003